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October 7, 2005.

ADAM LESNICK, Petitioner,
FREDERICK MENIFEE, Warden in his official capacity, Respondent.

The opinion of the court was delivered by: JAMES FRANCIS IV, Magistrate Judge


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 granted.


  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 & Exh. H).

  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, considering —
(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 sentence —
(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, available at 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 ...

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