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April 1, 2004.

JOSEPH A. CRAPANZANO, Petitioner -against- FREDRICK MENIFEE, Warden of Federal Correctional Institution, Otisville, New York, Respondent

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


Joseph A. Crapanzano, a pro se petitioner moving under 28 U.S.C. § 2241, challenges a change in policy implemented by the Bureau of Prisons ("BOP") which now dictates that an inmate may not serve more than the last ten percent of his sentence, up to a maximum of six months, in a community corrections center ("CCC") (otherwise known as the "10% Rule"). Petitioner seeks injunctive relief pursuant to Federal Rule of Civil Procedure 65 to compel Respondent to immediately make a determination of his eligibility for pre-release designation to a CCC pursuant to the BOP's previous practice of routinely placing inmates in CCC confinement for the last six months of their sentences without regard to the 10% Rule.*fn1 For the reasons that follow, petitioner's request is granted. Page 2


  A. The Conviction and Sentence

  Crapanzano was convicted in the United States District Court for the Middle District of Florida of possessing and uttering a forged security in violation of 18 U.S.C. § 513(a), and conspiracy to commit wire and mail fraud in violation of 18 U.S.C. § 371. See Judgment and Commitment Forms, Ex. C to the Declaration of Patrick W. Ward, Attorney Advisor to BOP ("Ward Decl.") On January 6, 2003, Crapanzano was sentenced to two twenty-one month terms of imprisonment, to run concurrently. See id. Crapanzano began serving his sentence on March 27, 2003. See Sentence Monitoring Computation Data, Ex. B to the Ward Decl. He is currently incarcerated at the Federal Prison Camp in Otisville, New York. B. The Change in Policy

  Federal law provides for the placement of prisoners in non-prison sites such as CCCs and halfway houses shortly before the conclusion of their sentences to give them an opportunity to adjust to the community before release.*fn2 Such "back-end entry"*fn3 is governed by 18 U.S.C. § 3624(c), enacted in 1984, which provides that placement in Page 3 this type of pre-release custody may not exceed six months or the last ten percent of a prisoner's sentence, whichever is less.*fn4 Prior to December 2002, the BOP typically placed non-violent inmates in CCCs for the last six months of their sentences regardless of the length of their sentences. See Program Statement 7310.03 (12/98) ¶ 5 ("[T]he Bureau is not restricted by § 3624(c) in designating a CCC for an inmate and may place an inmate in a CCC for more than the `last ten percentum of the term,' or more than six months, if appropriate."), Ex. D to the Declaration of John P. Cronan, Assistant United States Attorney ("Cronan Decl."). This practice ended in December 2002, in response to guidance from the United States Department of Justice's Office of Legal Counsel ("OLC").

  On December 13, 2002, the OLC issued a Memorandum Opinion for the Deputy Attorney General ("OLC Opinion") advising the BOP that it must comply with section 3624(c) when placing prisoners in pre-release custody.

  Your office has advised us that BOP, in exercising its authority under section 3624(c), has sometimes not abided by the time limitation set forth in that section. The authority conferred Page 4 under section 3624(c) to transfer a prisoner to a non-prison site is clearly limited to a period "not to exceed six months, of the last 10 per centum of the term to be served," 18 U.S.C. § 3624, and we see no basis for disregarding this time limitation.

  OLC Opinion at 6 n.6, Ex. A to the Cronan Decl. On December 16, 2002, the Deputy Attorney General forwarded the OLC Opinion to Kathleen Hawk Sawyer, Director of BOP, with a memorandum stating,
while BOP does have limited statutory authority in 18 U.S.C. § 3624(c) to transfer an offender to a CCC prior to his release so as to "afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community," there are firm restrictions on such transfers. Specifically, the transfer may not exceed the lesser of (i) the last ten percent of the sentence imposed on the offender, i.e., the period of time in which the offender was committed to the custody of the BOP, or (ii) six months. The OLC opinion concludes that there are no bases for disregarding these time limitations.
  12/16/02 Memorandum, Ex. B to the Cronan Decl., at 2 (emphasis in original). In response, the Warden of FCI-Otisville, the Respondent herein, issued a Memorandum for Inmate Population stating that as of December 20, 2002, the BOP has changed its procedures for designating inmates to CCCs.
[The] . . . change which affects most inmates in Bureau custody involves limitations on pre-release CCC designations. Specifically, pre-release CCC designations are now limited to the last 10% of an inmate's prison term to be served, not to exceed six months. This limitation complies with 18 U.S.C. § 3624(c).
  12/30/02 Memorandum from Fredrick Menifee, Ex. C to the Cronan Decl. Page 5

 C. The Effect on Petitioner

  Crapanzano's projected release date, assuming he receives all good time credit available, is September 15, 2004. See Ex.B to the Ward Decl. Based on this projected release date, Crapanzano's six month date — the earliest date he would have been eligible for a CCC transfer under the pre-December 2002 policy — is March 15, 2004. Under the 10% rule, Crapanzano's transfer to a CCC can occur no sooner than July 23, 2004, over four months later.

  Crapanzano argues that this change in policy: (1) relies on an incorrect interpretation of the underlying law; (2) violates the Administrative Procedure Act ("APA") because it was not subject to notice and comment; and (3) is being applied to ...

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