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.
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
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 http://www.usdoj.gov/olc/bopimprisonment2.htm).
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.
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 ...