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March 4, 2004.

CHARLES DISTEFANO, Petitioner-Plaintiff, -against- THE FEDERAL BUREAU OF PRISONS, HARLEY G. LAPPEN, in his official capacity as Director of the Federal Bureau of Prisons, and FREDERICK MENIFEE, in his official capacity as the Warden of FCI Otisville, Respondents-Defendants

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge Page 2


Charles DiStefano ("DiStefano"), who is currently incarcerated at the Federal Correctional Institution in Otisville, New York ("FCI Otisville"), has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and § 2255 and for a writ in the nature of mandamus pursuant to 28 U.S.C. § 1361, and has moved for a preliminary injunction under Fed.R.Civ.P. 65(b), and for a declaratory judgment under 28 U.S.C. § 2201. DiStefano also requests, in the alternative to emergency injunctive relief, that his sentence be corrected under Fed. R. Crim. P. 36.

  DiStefano challenges the determination of the warden of FCI Otisville that he can spend no more than the final ten percent of his 21-month sentence in a Community Corrections Center ("CCC"). DiStefano argues that this determination was based on the implementation of a new policy by the Federal Bureau of Prisons ("BOP") which mandated that pre-release designation to CCCs would be limited to the last 10% of an inmate's prison term, not to exceed six months (the "10% Rule"). The policy change was prompted by a December 13, 2002 Memorandum Opinion from the Department of Justice's Office of Legal Counsel which concluded, inter alia, that the prior practice of allowing all inmates to be eligible to serve the last six months of their sentence in a CCC, regardless of the total length of the sentence. For the reasons set forth below, DiStefano's request for injunctive relief is granted. Page 3

  Prior Proceedings

  On March 21, 2001, DiStefano pleaded guilty to one count of conspiracy to commit securities, mail and wire fraud in violation of 18 U.S.C. § 371. See United States v. DiStefano, 00 Cr. 91-08, 2002 WL 31426023 (S.D.N.Y. Oct. 28, 2002). On October 28, 2002, DiStefano was sentenced by this Court to a 21 month term of incarceration, followed by a three-year term of supervised release. Id. at *13. DiStefano commenced serving his sentence on March 7, 2003.

  On January 5, 2004, DiStefano filed a Complaint and Petition for a Writ of Habeas Corpus as well as an Order to Show Cause. After submission of briefs, oral argument was heard on February 4, 2004, at which time the motion was deemed fully submitted.


  At the time that DiStefano was sentenced, the usual practice of BOP was to consider prisoners for placement in CCCs for as much as the last six months of their sentences, even if this occurred before the prisoner's 10% date. The Office of Legal Counsel, however, declared this practice unlawful and stated that BOP has statutory authority to transfer prisoners to CCCs only for the lesser of the last 10 percent or six months of their good-time-adjusted Page 4 sentences. See Op. Off. Legal Counsel, "Bureau of Prisons Practice of Placing in Community Confinement Certain Offenders Who Have Received Sentences of Imprisonment," December 13, 2002 (available on the Internet at

  On December 20, 2002, BOP issued a memorandum addressed to "Chief Executive Officers" stating: "Effective immediately . . . [p]re-release programming CCC designations are limited in duration to the last 10% of the prison sentence, not to exceed six months." Federal Bureau of Prisons, U.S. Department of Justice, "Community Confinement Procedure Changes." (the "BOP Memorandum"). It further stated that the "procedure changes are the result of a recent legal opinion issued by the U.S. Department of Justice, Office of Legal Counsel (OLC), which analyzes the Bureau's statutory authority to designate inmates to CCCs as more limited than we have previously practiced." Id.

  DiStefano reports that following his surrender at FCI Otisville, he has been assigned jobs at the institution and has consistently received outstanding work evaluations from the prison staff. He also reports that he has not received a single infraction since his imprisonment and has been a model inmate who has gained the respect and trust of both inmates and prison staff. Page 5

  Assuming DiStefano receives all Good Conduct Time credits available, his projected release date is September 13, 2004. Under BOP's old policy and practice, DiStefano would become eligible for placement in a CCC on March 13, 2004. Relying on this projected release date under the new policy, the date when DiStefano would have the lesser of six months or ten percent of his sentence remaining is July 21, 2004, and would only become eligible for transfer to a CCC on that date.


  DiStefano argues that the OLC's December 2002 interpretation, as applied by BOP: (1) is based on an erroneous interpretation of the statute; (2) violates the Administrative Procedure Act PAPA"), 5 U.S.C. § 551, et seq., because BOP failed to provide a 30-day notice and comment period; and (3) violates the Ex Post Facto clause of the United ...

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