The opinion of the court was delivered by: JAMES FRANCIS IV, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Adam Lesnick, an inmate in the custody of the United States
Bureau of Prisons (the "BOP"), petitions for a writ of habeas
corpus, challenging a new BOP regulation that limits his
eligibility for placement in a community corrections center
("CCC") to the last ten percent of his sentence. Mr. Lesnick
seeks an order mandating that the BOP apply 18 U.S.C. § 3621 (b),
and not the new BOP regulation, 28 C.F.R. § 570.21, to determine
whether to transfer him to a CCC. The parties agreed that I would
exercise jurisdiction over this case for all purposes pursuant to
28 U.S.C. § 636(c). For the reasons that follow, the petition is
A. Procedural and Factual History
On August 9, 2004, in the United States District Court for the
District of Oregon, Mr. Lesnick pled guilty to one count of
filing a false income tax return in violation of
26 U.S.C. § 7206(1) and two counts of wire fraud in violation of
18 U.S.C. § 1343. (Declaration of Adam M. Johnson dated August 1, 2005
("Johnson Decl."), Exh. C). He was sentenced to a prison term of
21 months, followed by 36 months of supervised release. (Johnson Decl., Exh.
C.) Mr. Lesnick is currently incarcerated in the Federal
Correctional Institution in Otisville, New York ("FCI
Otisville"), and his projected release date is March 28, 2006.
(Johnson Decl., ¶¶ 1-2 & Exh. A).
In October 2004, FCI Otisville staff conducted an initial
evaluation of Mr. Lesnick's eligibility for placement in a CCC.
(Johnson Decl., Exh. F). In their Program Review Report, the
staff indicated that Mr. Lesnick's sanitation was "satisfactory"
and work performance rating was "pending." (Johnson Decl., Exh.
F). They deferred any recommendation regarding CCC placement for
him. (Johnson Decl., Exh. F). In April 2005, FCI Otisville staff
again evaluated Mr. Lesnick, this time reporting that his work
performance and sanitation were "good" and that he was
participating in a final responsibility program, a release
preparation program, a family values program, and recreational
activities. (Johnson Decl., Exh. G). The staff reported that his
"goals [were] met," and, under "team actions," they indicated
"community custody given today." (Johnson Decl., Exh. G). For a
"CCC recommendation," the staff listed "on or after 2/2/06 (10%)"
(Johnson Decl., Exh. G), the first day of the last ten percent of
Mr. Lesnick's prison term.
In July 2005, Mr. Lesnick was again evaluated by FCI Otisville
staff, and this Program Review Report also indicated that his
performance was "good," he had continued to participate in all of
his prison programs, and, as before, his "goals [were] met." (Johnson Decl., Exh. H). The recommendation regarding Mr.
Lesnick's placement in a CCC was "last review," indicating that
Mr. Lesnick was ready for formal institutional review of his
eligibility for a transfer to a CCC. (Johnson Decl., ¶¶ 8-9 &
The formal review has not been commenced. (Johnson Decl., ¶¶
10-12). Despite Mr. Lesnick's good behavior and regular
participation in prison activities, the BOP will not consider
transferring Mr. Lesnick to a CCC until February 2, 2006,
pursuant to a new BOP rule. (Johnson Decl., Exh. G). That rule,
28 C.F.R. § 570.21, limits an inmate's eligibility for placement
in a CCC to the last ten percent of the sentence, with a six
month maximum. Mr. Lesnick has challenged this regulation on the
basis that it conflicts with 18 U.S.C. § 3621(b), the statute
governing inmates, "place of imprisonment." Mr. Lesnick has
petitioned for a writ of habeas corpus, seeking an order
mandating that the BOP consider transferring him to a CCC in
accordance with the statutory guidelines and without reference to
the new BOP regulation. The question before me is whether the new
BOP regulation complies with the requirements of Section 3621(b).
B. History of BOP's New Policy
The place of imprisonment for all inmates is governed by
18 U.S.C. § 3621(b), which provides as follows:
The Bureau of Prisons shall designate the place of
the prisoner's imprisonment. The Bureau may designate
any available penal or correctional facility that
meets minimum standards of health and habitability
established by the Bureau, whether maintained by the
Federal Government or otherwise and whether within or without the judicial district
in which the person was convicted, that the Bureau
determines to be appropriate and suitable,
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the
(A) concerning the purposes for which the sentence to
imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional
facility as appropriate; and
(5) any pertinent policy statement issued by the
Sentencing Commission pursuant to section 994(a)(2)
of title 28.
In designating the place of imprisonment or making
transfers under this subsection, there shall be no
favoritism given to prisoners of high social or
economic status. The Bureau may at any time, having
regard for the same matters, direct the transfer of a
prisoner from one penal or correctional facility to
another. The Bureau shall make available appropriate
substance abuse treatment for each prisoner the
Bureau determines has a treatable condition of
substance addiction or abuse.
18 U.S.C. § 3621(b).
In December 2002, in response to a legal memorandum issued by
the Office of Legal Counsel for the United States Department of
Justice (the "OLC Memorandum"), the BOP established a policy
limiting CCC designations to the last ten percent of a prison
term, with a maximum of six months. A number of courts subsequently
reviewed the policy and issued opinions describing its history in
some detail. See, e.g., Pinto v. Menifee, No. 04 Civ. 5839,
2004 WL 3019760, at *9-10 (S.D.N.Y. Dec. 29, 2004) (collecting
cases); Zucker v. Menifee, No. 03 Civ. 10077, 2004 WL 102779,
at *8-10 (S.D.N.Y. Jan. 21, 2004) (reviewing legislative
history). The summary provided by the Eighth Circuit Court of
Appeals is particularly helpful:
The [2002 OLC] Memorandum acknowledged that § 3621(b)
gave the BOP the authority to choose an inmate's
place of imprisonment generally. However, the
Memorandum found that "community confinement does not
constitute imprisonment." [OLC] Memorandum at 1,
Therefore, § 3621(b) which gives the BOP the power to
decide a prisoner's "place of imprisonment" in "any
available penal or correctional facility" did not
apply to placement in CCCs. Id. According to the
Memorandum, the authority to transfer a prisoner to a
CCC came solely from § 3624 (c). This section limited
the stay "in conditions that will afford the prisoner
a reasonable opportunity to adjust to and prepare for
the prisoner's re-entry into the community" to "a
reasonable part, not to exceed six months of the last
10 per centum of the term." 18 U.S.C. § 3624 (c);
see Memorandum at 1, 6. The Memorandum concluded
that the BOP had no authority to transfer a prisoner
to a CCC, except for the lesser of the last ten
percent of the prison term and the last six months of
the sentence. . . .
On December 20, 2002, the BOP adopted the opinions of
the Office of Legal Counsel and the Attorney General
and instituted a policy that inmates could be
released to CCCs only for the last ten percent of
their terms, to be capped at six months.
Eldwood v. Jeter, 386 F.3d 842, 844-45 (8th Cir. 2004).
In reviewing the BOP policy (the "December 2002 rule" or
"December 2002 regulation"), the vast majority of district
courts, and the two appellate courts that considered the issue, ruled
that the BOP had misinterpreted the governing statutes. The
courts ruled that Section 3621 (b), which governs the placement
of the prisoner, authorizes the BOP to transfer inmates to
correctional facilities at any time during incarceration; Section
3624 governs the "release of a prisoner," and in no way restricts
the authority granted by Section 3621. See, e.g., Eldwood,
386 F.3d 842, 847; Goldings v. Winn, 383 F.3d 17, 28 (1st Cir.
2004); Schoenfeld v. Menifee, No. 04 Civ. 3551, 2004 WL
1516797, at *3 (S.D.N.Y. July 7, 2004); Cato v. Menifee, No. 03
Civ. 5795, 2003 WL 22725524, at *4-6 (S.D.N.Y. Nov. 20, 2003).
Courts held that a CCC may be designated as the place of
imprisonment for service of an entire sentence; it was improper
for the BOP to assume that a CCC could serve only as a re-entry
facility. Goldings, 383 F.3d at 28; Schoenfeld, 2004 WL
1516797, at *3; Pinto, 2004 WL 3019760, at *9-10; Zucker,
2004 WL 102779, at *7.
As the court explained in Zucker,
There is surely no inconsistency in the two goals of
entrusting the individualized decision of each
prisoner's placement to the agency responsible for
his or her custody, . . . and requiring that that
decision take into account the necessity for some
period or condition of transition prior to reentry.
2004 WL 102779, at *10.
In response to the judicial rulings, the BOP proposed a new
regulation that again limited inmates' community confinement to
the last ten percent of the prison sentence, with a maximum of
six months. 69 Fed. Reg. 51,213, 51,214-15 (Aug. 18, 2004) (proposed
rule). The difference between this regulation and its predecessor
is simply the BOP's new rationale for the rule. Whereas the BOP
had previously argued that Section 3624(b) prevented it from
designating a CCC placement prior to the last ten percent of a
prison term, the BOP's new position is that it does have the
discretion to place an inmate in a CCC for all or any portion of
the prison sentence, but has chosen ...