MONAHAN v. WINN

276 F. Supp.2d 196 (2003) | Cited 0 times | D. Massachusetts | August 12, 2003

MEMORANDUM RE: BUREAU OF PRISONS' NEW COMMUNITY CONFINEMENT POLICYI. INTRODUCTION

Just before Christmas 2002, after many judges and court personnel hadleft for the

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     holidays, the Bureau of Prisons ("BOP") faxed a letter to all federaljudges. In the letter, the BOP announced that designations of offendersto community confinement were forbidden as a matter of law,notwithstanding the long-established BOP policy and practice of adoptingjudicial recommendations to place nonviolent inmates in such facilitiesto serve short terms of imprisonment. The BOP also announced itsintention to abandon its practice of transferring offenders to communityconfinement for the last six months of their sentences; it would insteadlimit such transitions to ten percent of the total sentence, not toexceed six months.

The genesis of this legal epiphany was an opinion issued on December13, 2002, by the Department of Justice Office of Legal Counsel to theUnited States Deputy Attorney General ("the DAG Opinion") thatcharacterized BOP placement of prisoners into community confinement as"unlawful." A position that the DOJ had argued around the country in itsrole as an adversary in the criminal justice system was now foisted onthe BOP as established doctrine, by virtue of the DOJ's role as counselto the Bureau.

This literally overnight shift in BOP policy deprived judges of animportant tool for sentencing a most "difficult" class of offenders:those on the borderline between probation and incarceration. Moresignificant, the policy change, and the precipitous way it was imposed,wreaked havoc on defendants at various stages in their federal criminalcases. Offenders already in community confinement with more than 150 daysremaining on their sentences were whisked away to secure BOP facilities.Recently-sentenced offenders who had been designated to surrender tocommunity confinement facilities instead were required to report tosecure facilities. Defendants who had pleaded guilty or had beenconvicted, but had not yet been sentenced, found their expectations aboutthe likely nature of their sentences radically upended. Offenders who hadbeen promised transitional placements in community confinement six monthsprior to the conclusion of their sentences found their transition datespostponed.

Cases involving defendants in many of the above-described postures arecurrently pending before me, and I issue this Memorandum to address theissues common to all of them.

Numerous courts across the country have found the new BOP policy to belegally invalid on a variety of grounds. See, e.g., Iacaboni v. UnitedStates, 251 F. Supp.2d 1015 (D.Mass. 2003) (Ponsor, J.); Pearson v.United States, 265 F. Supp.2d 973 (E.D.Wis. 2003); Tipton v. FederalBureau of Prisons, 262 F. Supp.2d 633 (D.Md. 2003); Byrd v. Moore,252 F. Supp.2d 293 (W.D.N.C. 2003); United States v. Serpa,251 F. Supp.2d 988 (D.Mass. 2003) (Young, C.J.); Ferguson v. Ashcroft,248 F. Supp.2d 547 (M.D.La. 2003); Howard v. Ashcroft, 248 F. Supp.2d 518(M.D.La. 2003); Ashkenazi v. Attorney General, 246 F. Supp.2d 1 (D.D.C.2003); United States v. Tkabladze, Nos. CV 03-01152, CR 02-00434(A)(C.D.Cal. May 16, 2003) (slip op.); Mallory v. United States, 2003 WL1563764 (D.Mass. Mar.25, 2003) (Woodlock, J.); United States v. West,2003 WL 1119990 (E.D.Mich. Feb. 20, 2003); McDonald v. Federal Bureau ofPrisons, No. 03-CV235 (N.D.Ga. Feb. 14, 2003); United States v. Canavan,2003 WL 245226 (D.Minn. Jan.22, 2003).

I agree with the weight of this authority. Judge Ponsor's scholarlyopinion in Iacaboni is particularly thorough and compelling, and I concurin the three key elements of his analysis. First, "the wellestablishedpractice of the BOP" of placing certain offenders in communityconfinement

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     to serve some or all of their terms of imprisonment "was not and is not,even remotely `unlawful.'" Iacaboni, 251 F. Supp.2d at 1017-18. Second,"the BOP's manner of adopting this fundamental change, even assuming ithad substantive merit, was improper" under the Administrative ProcedureAct. Id. at 1018. Third, the retroactive application of this policyviolates the Constitution. See id. Offender classification and assignmentdecisions made pursuant to this policy are therefore invalid, and the BOPretains the discretion to employ community confinement as it always didprior to December of 2002.

While there is no need for me to "reinvent the wheel" with thisopinion, I will address new arguments that the government has advanced indefense of the BOP policy as its position and reasoning continue toevolve in response to Iacaboni and other cases.

II. CASES PENDING BEFORE THE COURT

The above-captioned cases, which involve offenders at various stages ofcriminal process, all implicate the BOP's new community confinementpolicy. I briefly summarize the posture of each case here in order to lendcontext to the broader discussion. Individual orders consistent with thisopinion will issue (or have been issued) separately in each of the cases.To the extent that a case raises other matters, as in United States v.Silveira, separate opinions will issue on those matters, incorporatingthis memorandum by reference.

In general, the cases before me presently fit into three categories:The first category includes individuals who pleaded guilty or wereconvicted prior to the new BOP Policy, were sentenced and still awaitingsurrender to community confinement facilities, pursuant to sentencingjudge recommendations that the BOP had accepted (Dennis Monahan, ManuelSardinha); the second includes individuals who pleaded guilty or wereconvicted prior to the new Policy, but were sentenced afterward (GailCostello, Larry Silveira); and the third is comprised of individualsapproaching the end of their imprisonment terms who had been designatedfor a community confinement facility, pursuant to longstanding BOPpolicy, only to have their designations abruptly changed (Julio Pereira).

A. Individuals Who Pleaded Guilty or Were Convicted Before the NewPolicy, Who Had Yet to Surrender to a Community Confinement Facility,Pursuant to Judicial Recommendations Adopted by BOP

1. Dennis Monahan

Dennis Monahan was sentenced in late 2002 in two cases, one in theDistrict of New Hampshire for bankruptcy fraud (18 U.S.C. § 152), andone in the District of Massachusetts for forging the signature of a courtofficer (18 U.S.C. § 505). He was sentenced in the New Hampshire caseto imprisonment for one year and one day1

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     and sentenced in the Massachusetts case to imprisonment for 30 days, tobe served concurrently with the New Hampshire sentence. Significantly,after careful consideration, judges of both courts recommended placementin community confinement.

In accordance with these recommendations, in early December 2002,Monahan and his counsel were notified that the BOP had designated Monahanto serve his sentence at Coolidge House. Then came the Christmas Evemissive, the new BOP Policy, and an order to Mr. Monahan that he reportto FMC-Devens. In a turn of events that reflected the chaos following theBOP's precipitous policy change, Monahan, with a criminal history of I,was held in solitary confinement and lockdown for 38 days due toovercrowding (apparently attributable at least in part to the new BOPPolicy).

On or around March 26, 2002, Monahan filed a pro se petition for writof habeas corpus pursuant to 28 U.S.C. § 2241 challenging the new BOPPolicy and his designation to FMC-Devens. Apparently, due to someconfusion concerning receipt of the $5 filing fee, the file languished inthe clerk's office for several months before reaching the Court.2 OnJune 20, 2003, I issued a Temporary Restraining Order ("TRO") requiringthe BOP to re-designate Mr. Monahan under its pre-December 2002criteria. Shortly thereafter, Monahan was redesignated to CoolidgeHouse. The TRO was extended by consent of the parties. On July 30, 2003,I entered a Preliminary Injunction on terms identical to those in theTRO. This memorandum comprises the findings of fact and conclusions oflaw on which that preliminary injunction was based.

2. Manuel Sardinha

On October 30, 2002, Manuel Sardinha was sentenced to ten monthsimprisonment for three counts of filing false income tax returns (26 U.S.C. § 7206(1)) with a community confinement recommendation. InDecember of 2002, Sardinha learned that he had been designated by the BOPto self-surrender at Coolidge House. On December 30, 2002, Sardinha'scounsel learned, to his surprise, that Sardinha had been redesignated toFMC-Devens pursuant to the new BOP policy.

On or around February 19, 2003,3 Sardinha filed a Motion toVacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255in which he challenged the BOP policy. While it is not entirely clearwhether this action is more properly brought under 28 U.S.C. § 2255or 28 U.S.C. § 2241, the government apparently does not dispute thatthe court can engage the merits of the community confinement issues underat least one of those two statutes. Cf. Iacaboni, 251 F. Supp.2d at

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     1017 n. 1 (adjudicating the § 2255 claim of one of threepetitioners, Mark Pandolfi, who had not yet surrendered to BOP custody,and noting that the court could instead invoke remedial powers under§ 2241 if necessary); see also Chambers v. United States, 106 F.3d 472,474 (2d Cir. 1997) ("It is routine for courts to construe prisonerpetitions without regard to labeling in determining what, if any, reliefthe particular petitioner is entitled to.").

I postponed Mr. Sardinha's surrender date during the pendency of thisaction. Based on my findings in this Memorandum, I intend to issue apreliminary injunction requiring the BOP to designate Sardinha's place ofincarceration under its pre-December 2002 criteria.

B. Individuals Who Pleaded Guilty or Were Convicted Prior to theNew BOP Policy, and Were Sentenced After the Change

1. Gail Costello

Gail Costello pled guilty to one count of structuring (31 U.S.C. § 5324(3)) on November 12, 2002, prior to the change in BOPpolicy. Her sentencing hearing was held over two days, the final day beingJune 2, 2003. Her total offense level was 11 in criminal history categoryI. This yielded a Guideline range of 8 to 14 months' imprisonment, inZone C of the Guidelines table.

Prior to the policy change in December 2002, the Bureau of Prisonstypically would have honored judicial recommendations of communityconfinement for Zone C offenders. Because of the change in the BOPposition, which I believed unlawful, and because it was inconceivable thatthis policy change had ever been envisioned by the SentencingCommission,4 I departed from the Guidelines. The goal of my sentencewas to achieve the same outcome that would have been available inCostello's case prior to the BOP's improper policy change. I departeddownward one level into Zone B, pursuant to U.S.S.G. § 5K2.0, andimposed a term of probation that included community confinement.

The Sentencing Commission obviously could neither have anticipated nortaken into consideration the sudden, radical, change in BOP policy thateliminated community confinement as an incarceration option for Zone Coffenders. Indeed, as Judge Ponsor noted in Iacaboni, 251 F. Supp.2d at1017, judicial recommendations of community confinement for Zone Coffenders had been regularly adopted throughout the past fifteen years ofGuideline sentencing.

2. Larry Silveira

Larry Silveira was convicted of one count of perjury on December 4,2002. I sentenced him on June 2, 2003. His base offense level was 14 incriminal history category I, which ordinarily would yield a sentence of15 to 21 months' incarceration. I departed downward to level 10 (Zone B)and imposed probation including community confinement for two reasons.First, pursuant to U.S.S.G. § 5K2.0 I determined that the nature ofSilveira's offense conduct is well outside the "heartland" of perjurycases. Second, also pursuant to § 5K2.0, I departed downward toprobation, allowing me to impose community confinement, for the samereasons as I had for Costello. The Sentencing Commission could not haveanticipated that community confinement would no longer be available toZone C offenders. I will elaborate the first ground for departure (theheartland

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     issue) at greater length in a separate sentencing memorandum thatwill issue forthwith.

C. Individuals Approaching the End of Their Imprisonment Terms Who HadBeen Designated for Community Confinement Pursuant to Longstanding PolicyOnly to Have Their Designations Abruptly Changed (Julio Pereira)

Julio Pereira is serving a sentence of 18 months at FMC-Devens forconviction on four counts of subscribing false tax returns (26 U.S.C. § 7206(1)) and twenty-one counts of using the mails forcommercial bribery (18 U.S.C. § 1952). Prior to December of 2002,Pereira alleges that he was led to believe that he would transition to ahalfway house for the last six months of his sentence, on or around July7, 2003. The government counters that there was no support in Pereira'sfile for an assertion that he ever had an expectation that a transitionto community confinement would come this early.5 In any event,Pereira ultimately was officially informed that he would not betransferred to community confinement until November 25, 2003, when justten percent of his sentence remained. What is not clear on this record iswhether that outcome would have been any different under the pre-December2002 BOP policy.

On or around June 25, 2003, Pereira filed a pro se petition for writ ofhabeas corpus pursuant to 28 U.S.C. § 2241 challenging the new BOPpolicy. I treated his petition as a motion for TRO/Prelminary Injunctionand held a hearing on August 5, 2003.

I find that Pereira has shown a likelihood of success on the merits ofthe legal question at issue. I agree that the BOP's revised view,pursuant to the DAG Opinion, that it lacks discretion to transferoffenders to community confinement for a full six months (or, for thatmatter, at any time) at the end of their sentences is incorrect.

Less clear is whether Pereira has suffered the requisite "irreparableharm" to warrant the issuance of an injunction, because the partiesdispute whether, under the old BOP policy, Pereira would have been placedin community confinement any earlier than is now scheduled. I thereforedecline to enter a TRO and will defer decision on a possible preliminaryinjunction. Meanwhile, I will appoint counsel for Pereira to assist indeveloping the record.

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III. EXHAUSTION

In the Monahan case, the government urged dismissal for failure tofulfill the exhaustion requirement of the Prison Litigation Reform Act("PLRA"): No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.42 U.S.C. § 1997e(a).6 This PLRA exhaustion requirement has no"futility" exception. Booth v. Churner, 532 U.S. 731, 741 n. 6, 121S.Ct. 1819, 149 L.Ed.2d 958 (2001) ("[W]e will not read futility or otherexceptions into statutory exhaustion requirements where Congress hasprovided otherwise.").

However, the government has cited no authority to suggest that thisrequirement governs habeas petitions. The government quoted anothersection of the PLRA that defines prison conditions as "the conditions ofconfinement or the effects of actions by government officials on thelives of persons confined in prison," while leaving out the continuationof that sentence: "but does not include habeas corpus proceedingschallenging the fact or duration of confinement in prison."18 U.S.C. § 3626(g)(2).

The cases before me do not challenge "prison conditions" as that iscommonly understood under § 1983. Rather, they challenge the BOP'srule revision that deprives it of legal discretion to designate certainoffenders to community confinement facilities when performing itsstatutory duty to execute criminal sentences.7 It is well establishedthat challenges to the "manner, location, or conditions of a sentence'sexecution" are proper subjects of a habeas corpus action under §2241. Gonzalez v. United States, 150 F. Supp.2d 236, 240 (D.Mass. 2001)(citing Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000)). And assuch, the statutory PLRA exhaustion requirement does not apply. See Davisv. Fechtel, 150 F.3d 486, 490 (5th Cir. 1998) ("The PLRA thus does notapply to section 2241 proceedings."); West, 2003 WL 1119990, at *2 ("[T]heexplicit exhaustion requirements which are contained in . . . the . . .AEDPA . . . and the . . . PLRA do not apply to habeas petitions filedunder 28 U.S.C. § 2241.").8

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Apart from the PLRA, the Court will not impose a providentialexhaustion requirement because pursuit of administrative remedies inthese cases, where the BOP has announced a clear and inflexible policy,clearly would be futile. See Iacaboni, 251 F. Supp.2d at 1017 n. 1.

IV. MERITS OF THE NEW BOP POLICY

A. Statutory Law and the Sentencing Guidelines

There can be no question that the BOP's longstanding practice ofdesignating certain offenders to serve all or part of a term ofimprisonment in community confinement was legal and even wise. While Iwill not retrace the historical steps meticulously detailed in otheropinions, it is worth emphasizing that the use of community confinementdesignations "goes back continuously for almost forty years." Tkabladze,slip op. at 5. All of the institutional parties concerned with criminalsentencing — Congress, the Department of Justice, the BOP, and theSentencing Commission — recognized the propriety of this practiceand actively promoted community confinement as a sentencing option tojudges. See Iacaboni, 251 F. Supp.2d at 1021-22. Nothing in thegovernment's arguments here convinces me that I should view thisaccumulated weight of policy and practice as some kind of aberration orillegal mistake.

The government bases the sudden change9 reflected in the DAGOpinion and new BOP policy on its reinterpretation of the statute thatempowers the BOP in its custody of federal prisoners,18 U.S.C. § 3621(b), and on the Sentencing Guidelines referred totherein. The arguments ring hollow.

1. The Language of § 3621

18 U.S.C. § 3621(b) does not support the government's position atall. It pertains generally to the BOP's discretion over "place ofimprisonment" and provides, in pertinent part: 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 . . . that the Bureau determines to be appropriate and suitable, considering —

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      (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.

The BOP takes the position that the discretion § 3621(b) affordsthe BOP in determining "place of imprisonment" does not include thediscretion to transfer a prisoner to community confinement facilities— neither pursuant to a judicial recommendation at sentencing, norat the end of a prisoner's term. Prison, it appears, necessarily means avery specific place — with barbed wire and absolute constraints onliberty — and nothing else. This definition admits of only oneexception, which the government itself cites, contradicting itself:During the final 10 percent of the term, not to exceed six months, under18 U.S.C. § 3624(c) (the statute outlining the steps that the BOP isrequired to take at the end of a prison term to transition the prisonerback into society), prison can mean community confinement, or even homedetention.

No such limitation on BOP's discretion is apparent on the face of§ 3621(b). The statute prescribes that the facility be "penal orcorrectional" and that it meet minimum habitability standards. Communityconfinement centers — and Coolidge House, specifically — havehistorically been viewed to satisfy the statutory conditions. Iacaboni,251 F. Supp.2d at 1024-25. Simply stated, "[c]ommunity confinementconstitutes one form of `imprisonment,' and a community confinementfacility is a `penal or correction facility.'" Id. at 1025.

In fact, it is § 3621(a) that arguably provides the closest thingto a definition of "imprisonment" as one can find in the United StatesCode: A person who has been sentenced to a term of imprisonment . . . shall be committed to the custody of the Bureau of Prisons until the expiration of the term imposed, or until earlier released for satisfactory behavior pursuant to the provisions of section 3624.18 U.S.C. § 3621(a) (emphasis added). The statute makes clear that itis not place, but custody, that defines imprisonment — a conceptualdistinction that is consistent with long-accepted views on this subject.See Reno v. Koray, 515 U.S. 50, 63-65, 115 S.Ct. 2021, 132 L.Ed.2d 46(1995) (recognizing that time spent in community confinement subject toBOP custody entitles a prisoner to sentencing credit, while communityconfinement on pretrial release does not, because "[u]nlike defendants`released' on bail, defendants who are `detained' or sentenced' alwaysremain subject to the control of the Bureau") (emphasis in original).

The district court in Byrd made clear that there is ample room withinthe broad parameters of § 3621(b) to accommodate communityconfinement: This statute is extremely broad; it rules out almost no imaginable facility or institution, public or privately owned. . . . [P]eople do not become inmates of CCCs because they want to. While they are able to leave under some limited circumstances as outlined by 18 U.S.C. § 3622, they are not free to come and go as they

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      please. They are "imprisoned." Their liberty is restricted. There are consequences for their failure to follow rules. The Court is not satisfied that the term "imprisonment" requires that all those in the custody of the BoP must be confined in structures resembling Alcatraz or Sing Sing. Section 3621 certainly does not impose such a limitation on the BoP's discretion.252 F. Supp.2d at 301. The Byrd court could not be clearer, morecogent, or in the right on this question.

Notwithstanding the clarity of § 3621, the government looks beyondthe language of the statute, to the Sentencing Guidelines, and to a swathof legislative history, wholly removed from its context, which pertainsnot to § 3621(b) but to a proposed amendment to a different section18 U.S.C. § 3624(c). None of these materials can plausibly be read tosupply the meaning that the DOJ, first through adversary proceedings incriminal prosecutions, and now more opportunistically as counsel for theBOP, proposes for § 3621(b).

2. The Sentencing Guidelines

Any argument that relies on the Sentencing Guidelines to cabin theBOP's discretion in place of confinement is flawed from the outset.First, the authoritative statement of the BOP's ability to locateprisoners in all settings is enshrined in a statute, § 3621(b). If, asthe government contends, that statute conflicts with two specificsections of the Sentencing Guidelines, the Guidelines would have toyield. As Judge Ponsor observed in Iacaboni, "statutes trump guidelines,not vice versa." Iacaboni, 251 F. Supp.2d at 1024 (citing the SupremeCourt's "emphatic" holding in United States v. LaBonte, 520 U.S. 751,757, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997), that notwithstanding theconsiderable authority given to the Sentencing Commission, "it must bowto the specific directives of Congress"); see also Pearson, 265 F.Supp.2d at 982 ("The BOP's authority to place prisoners is set forth byCongress in 18 U.S.C. § 3621(b), not by the Sentencing Commission inthe guidelines." (footnote omitted)).

Second, the Sentencing Guidelines are binding only on the courts; theyhave nothing to say about the BOP's use of its agency discretion ascustodian of federal prisoners. Iacaboni, 251 F. Supp.2d at 1034. Infact, as Judge Ponsor noted, § 3621(b) gives an itemized list offactors the BOP is to consider in determining an appropriate place ofconfinement. One of these is "any statement by the court that imposed thesentence recommending a type of penal or correctional facility asappropriate," 18 U.S.C. § 3621(b)(4)(B). At the end of the list ofissues that the BOP is to consider are policy statements of theSentencing Commission, id. § 3621(b)(5). Even assuming that theCommission ever addressed issues concerning the place of confinement— which it plainly never did — it is disingenuous to suggestthat the BOP's old policy violated a "policy statement" it was chargedwith "considering." The Guidelines do not purport to govern place ofconfinement — they never did and never will. They are aboutjudicial sentencing.

Assuming arguendo that the Sentencing Guidelines did speak the law onthe subject of BOP's discretion to put prisoners in communityconfinement, it is by no means clear that they would say anythinginconsistent with the BOP's longstanding reading of § 3621. Thegovernment's Guidelines argument suggests that the conditions outlined bythe Sentencing Commission for "Zone C" and "Zone D" offenders recognize adifference between imprisonment and community confinement. Specifically,the Guidelines provide

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     that Zone D offenders are to complete a "sentence of imprisonment,"U.S.S.G. § 5C1.1(d), whereas Zone C offenders are to serve either a"sentence of imprisonment" or a "sentence of imprisonment that includes aterm of supervised release with a condition that substitutes communityconfinement or home detention . . . provided that at least one-half ofthe minimum term is satisfied by imprisonment," id. § 5C1.1(d)(2).

It does not obviously follow, as the government contends, thatcommunity confinement is only appropriate for the "term of supervisedrelease," described in U.S.S.G. § 5.C1.1(d)(2), and not for"imprisonment." Reading the Guideline in tandem with § 3621,"imprisonment" refers to the custody of the Bureau of Prisons. Thesection mandates that one half of a Zone C term be served in BOPcustody, during which time, under § 3621, the BOP may place anoffender in a community confinement facility. The Guideline does notplace imprisonment and community confinement in opposition; it places inopposition BOP custody and supervised release under the auspices ofprobation.

While an inmate may serve his or her time in community confinementeither as part of BOP custody or as a condition of supervised release,there are important differences. Far from nullifying § 5.C1.1(d)(2)'s"provided that at least one-half of the minimum term is satisfied byimprisonment" language, a Zone C term spent entirely in communityconfinement, as in Coolidge House, differs considerably from supervisedrelease there. During the "imprisonment" component of his term, theoffender, officially within the custody of the BOP,18 U.S.C. § 3621(a), is answerable to the Bureau for his conduct. TheBOP can, in its discretion, withdraw him from Coolidge House and transferhim to a higher-security facility. During supervised release, incontrast, an offender who violates the conditions of his release mustappear before the Court in a revocation hearing; the outcome of thathearing — continuation of supervised release, or transfer to thecustody of BOP, for example — is by no means certain.

Finally, as the Iacaboni court observed, other statutes — notGuidelines — contemplate resort to community confinement as a formof imprisonment. Iacaboni, 251 F. Supp.2d at 1029 (citing 18 U.S.C §3622(b) (allowing imprisoned inmates to "participate in a training oreducational program in the community"); 3622(c) (authorizing imprisonedinmates to "work at paid employment in the community while continuing inofficial detention at the penal or correctional facility")).

The Iacaboni decision more than adequately dispatches the case law thatthe government marshals in support of its contrary view. See id. at1030-33 ("Decisional Law Is Not Uniform"). I therefore adopt JudgePonsor's detailed and itemized review of the cases without elaboration.

3. 18 U.S.C. § 3624(c)

Another statute, 18 U.S.C. § 3624(c), outlines what steps the BOPis required to take at the end of an imprisonment term to ease a prisonerback into society — and when it must take them. Section 3624(c)provides as follows: The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community. The authority provided by this

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      subsection may be used to place a prisoner in home confinement.18 U.S.C. § 3624(c).

This section bolsters the view that imprisonment means being in thecustody of the BOP, rather than in any specific locale. It includes homeconfinement — a condition substantially less coercive than evencommunity confinement — among the array of measures that the BOPmay take in discharging its duty to help transition prisoners back intosociety at the end of their terms. Id. Indeed, in a number of casesbrought before this very Court since the BOP changed its policy inDecember (including Mr. Pereira's), the government has affirmed thatcommunity confinement facilities are appropriate places in whichprisoners may spend the final 10 percent of their terms. The position thegovernment has conceded in these cases — that community confinementis "imprisonment" during the last 10 percent of a sentence — isfundamentally at odds with its view on what constitutes imprisonmentduring the first 90 percent.

Notwithstanding the plain language of § 3624(c) and the BOP's ownongoing interpretation of that statute, the government remains convincedthat § 3621(b) gives the BOP no discretion to install its prisonersin community confinement facilities. In support of this position, the DOJhas excavated a post hoc blip from § 3624(c)'s legislative historythat allegedly turns all of the preceding law and logic on its head.Section 3624(c) was enacted in 1984, Pub.L. No. 98-473, § 212(a)(2),98 Stat. 1837, 2008, and amended a number of times thereafter.

In 1990, when Congress considered amendments to the provision, a HouseReport interpreted the existing statute in its description of thoseamendments: Sections 1403 and 1404 [of the proposed bill] address the Federal Bureau of Prisons' authority to place inmates in community corrections programs and home confinement. Currently, [under § 3624(c)] the Bureau of Prisons can only place an inmate in a Community Correction Center for up to six months or for the last 10 percent of his or her sentence, whichever is shorter. Section 1403 would authorize the Bureau of prisons to place certain non-violent offenders in community facilities for longer time periods at the end of their sentences so that they can better readjust to society. Section 1404 restores the Bureau of Prisons' previously existing authority to designate an appropriate place for offenders to serve their sentences, including Community Correction Centers or home confinement.H.Rep. No. 101-681(I), at 140, U.S. Code Cong. & Admin.News 1990, at6472, 6546.

The bill before the House at the time would have eliminated these timerestrictions. Dissenting representatives, committed to preserving thetime restrictions on pre-release reference to community confinement,proposed a compromise amendment.10 The time restrictions would

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     remain, but the statute would expressly allow the BOP to consider thepossibility of home detention during the 10 percent/six month period. 136Cong. Rec. 27,587-88 (1990). The compromise amendment passed, and thebill was ultimately enacted to add only the following sentence to §3624(c): "The authority provided by this subsection may be used to placea prisoner in home confinement." 136 Cong. Rec. 36,930 (1990) (House);id. at 36,318 (Senate); see also Pub.L. No. 101-647, § 2902, 104Stat. 4789, 4913 (1990).

The government's argument is that the House Report described theexisting statute (3624(c) without the home detention) — that theBOP "can only" place an inmate in community confinement during thestatutory period outlined in § 3624(c) — and that Congress'srejection of the initial amendments eliminating the time restrictionsconfirms that understanding of the statutory framework.

The argument flies in the face of principles of statutoryconstruction, and existing case law. A court is not supposed to consultlegislative history where, as here, the meaning of a statute is clearfrom its plain language. See United States v. Charles George TruckingCo., 823 F.2d 685, 688-89 (1st Cir. 1987) ("In the case before us, thestatutory command is clear as a bell — and its melody is unmuffledby any discordant legislative undertone.") (citing United States v.Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981)). Theplain language of § 3624(c) places no curbs on BOP discretion as toplace of confinement prior to the last six months or 10% of confinement.The provision's purpose is not to set strict conditions on when the BOPcan designate a prisoner to community confinement. The statute in factburdens the BOP with a duty (albeit a "qualified" one). Prows v. FederalBureau of Prisons, 981 F.2d 466, 469 (10th Cir. 1992); Howard, 248 F.Supp.2d at 544; Ferguson v. Ashcroft, 248 F. Supp.2d at 572. It "shall"take steps to "assure" that prisoners serve the last 10 percent11 oftheir prison terms

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     "under conditions that will afford the prisoner a reasonable opportunityto adjust to and prepare for the prisoner's re-entry into the community."What one statute, § 3624(c), requires and another, § 3621(b),allows the BOP to do are two separate matters. It is illogical andinappropriate to infer that where the mandate that § 3624(c) placesupon the BOP at the end of a prisoner's sentence stops, a limitation onits discretion for the period before that begins. The Tenth Circuit madethat much clear in Prows: "Nothing in § 3624(c) indicates anyintention to encroach upon the Bureau's authority to decide where theprisoner may be confined during the pre-release period." Prows, 981 F.2dat 469. All that § 3624(c) suggests is that whatever the conditionsof confinement were prior to the last 10 percent of a prisoner's term(not to exceed six months), the remaining period is to be served underpre-release conditions.

It is important to note further that § 3624 does not and never didmandate pre-release into community or home confinement. Id. (explainingthat the statute provides only a "general direction to facilitate theprisoner's post-release adjustment through establishment of someunspecified pre-release conditions"). Accordingly, courts have held thata prisoner is not entitled to sue under § 3624(c) solely because thephase-in program settled upon by the BOP is not to his liking. Id. at469-70; United States v. Laughlin, 933 F.2d 786, 789 (9th Cir. 1991). TheProws court in fact suggested that not only is the BOP's discretion inselecting transitional programs that § 3624(c) requires consistentwith a broad view of its powers of placement under § 3621(b), thatresponsibility depends upon its § 3621(b) discretion: [O]ur interpretation of § 3624(c) as a legislative directive focusing on the development of conditions to facilitate the inmate's adjustment to free society, whatever the institution of pre-release confinement, accepts as a premise that the broader statutory scheme concerning the Bureau's general placement authority remains intact and effective.Prows, 981 F.2d at 470.

Confronted with the government's attempt to leverage § 3624(c) tosupport the

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     DAG Opinion, the Howard and Ferguson courts wryly observed: This portion of the Government's rationale is almost worth preserving for the marvelous irony it foists upon the world. As the court reads this subsection, Congress is directing the Bureau to do its level best to assure that everyone who has served time get a decent opportunity to go through a period of readjustment before being thrust back into the community. Yet, the Government would have the court read this section as a stiff curb on the Bureau's ability to make such placements at all. The court finds this reading to be implausible. The statute clearly emphasizes the Bureau's duty to ensure a reasonable opportunity for a period of adjustment. It aims to relieve the burdens of direct release on our communities, the inmates, and their families.Howard, 248 F. Supp.2d at 544, Ferguson, 248 F. Supp.2d at 572.

Second, this House Report was compiled by a session of Congresssubsequent to the one that enacted the statute in the first instance. Assuch, it gives no insight into the legislative intent of the section'sdrafters. If anything, the House Report furnishes a post hocinterpretation of existing legislation, to be accorded no greater weightthan the considered judgment of the federal courts in Prows, Laughlin,and the more recent Howard and Ferguson cases.

Section 3621 places federal inmates firmly within the custody of theBureau of Prisons for their terms of imprisonment and affords the BOPample discretion to determine the appropriate location to exercise thatcustody. No other provision in the United States Code (and certainlynothing in the Sentencing Guidelines) purports to curb that discretion.

B. Administrative Procedure Act

A number of courts also have concluded that, whatever its substantivemerit, the new BOP Policy is invalid for failure to comply with the"notice and comment" rulemaking requirements of the AdministrativeProcedure Act ("APA"), 5 U.S.C. § 551 et seq. See, e.g., Iacaboni,251 F. Supp.2d at 1038-40; Ferguson, 248 F. Supp.2d at 564-65; Mallory,2003 WL 1563764, at *2; McDonald, slip op. at 12-18. I agree with thosedecisions.

There is no dispute that the BOP adopted its new "rule"12 regardingcommunity confinement without engaging in the rigorous "notice andcomment" procedures set forth in the APA, 5 U.S.C. § 553. It isequally indisputable that, unless an agency rule is of a type exceptedfrom the APA, violation of these procedural prerequisites renders itinvalid. See Auer v. Robbins, 519 U.S. 452, 459, 117 S.Ct. 905, 137L.Ed.2d 79 (1997).

Here, the government contends that the BOP policy at issue is not asubstantive or "legislative" rule but rather is a mere "interpretativerule" that is exempt from notice and comment requirements. See Warder v.Shalala, 149 F.3d 73, 79 (1st Cir. 1998) ("The APA exempts `interpretiverules' from its notice and comment procedures.") (citing5 U.S.C. § 553(b)(3)(B)). After careful consideration, I must rejectthe government's position because the new policy places sweepinglimitations on BOP discretion that are not self-evident in the statuteand that

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     purport to have binding legal effect on both BOP personnel and thirdparties (i.e., judges and defendants) alike.

As the First Circuit has recognized, "the line between a legislative orsubstantive rule and an interpretative one is . . . far from clear." Id.Indeed, courts over the years have described the distinction as "`fuzzy,'`tenuous,' `blurred,' `baffling,' and `enshrouded in considerable smog."Richard J. Pierce, Jr., Distinguishing Legislative Rules fromInterpretative Rules, 52 Admin. L.Rev. 547, 547-48 (2000) (collectingcases). Even a comprehensive attempt by the D.C. Circuit to reconcilethis body of case law in American Mining Congress v. Mine Safety &Health Admin., 995 F.2d 1106 (D.C. Cir. 1993) (listing factors toconsider such as the agency's intent, publication in C.F.R. inconsistencywith prior legislative rule, etc.) was less than successful. See RobertA. Anthony, "Interpretive" Rules, "Legislative" Rules, and "Spurious"Rules: Lifting the Smog, 8 Admin. L.J. Am. U. 1, 16 (1994) (noting thatAmerican Mining formulated ten tests and rejected three others). Iendeavor to apply this diverse body of law not merely by listing thecriteria and checking them off, but by anchoring my analysis tofunctional considerations and the APA's underlying rationale.

It is helpful to begin with the origins of thelegislative/interpretative distinction in the legislative history of theAPA. Courts routinely cite the 1947 Attorney General's Manual on theAdministrative Procedure Act as a "key document," American Mining, 995F.2d at 1109, that contains the "most authoritative" account of thathistory. Warder, 149 F.3d at 79-80. It offers the following "workingdefinitions": Substantive [or legislative] rules — rules . . . issued by an agency pursuant to statutory authority and which implement the statute. . . . Such rules have the force and effect of law. Interpretative rules — rules or statements issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers. . . . General statements of policy — statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.American Mining, 995 F.2d at 1109 (quoting the Attorney General'sManual). Standing alone, of course, these definitions are only marginallyilluminating because it is easy enough to imagine, for example, that arule could both "construe" and "implement" a statute, all the whileadvising the public about how the agency intends to perform a certaindiscretionary function.

Courts and commentators appear to agree that the most importantquestion is "whether the disputed rule has `the force of law.'" Id. A"rule with the force and effect of law — binding not only on theagency and regulated parties, but also on the courts — is bydefinition a substantive rule." Warder, 149 F.3d at 82. Conversely,interpretive rules "do not have the force and effect of law and are notaccorded that weight in the adjudicatory process." Shalala v. GuernseyMemorial Hosp., 514 U.S. 87, 99, 115 S.Ct. 1232, 131 L.Ed.2d 106 (1995);see also Charles H. Koch, Jr., 1 Admin. L. & Prac. § 4.11 (2ded. 2003) ("[L]egislative rules are binding on courts as an extension oflegislative power, whereas interpretative rules have only the effectcourts choose to give them."); 2 Am.Jur.2d Administrative Law § 161(2003) ("Interpretive rules are not intended to have any legal effect anddo not have the force and effect of law. Accordingly, an interpretiverule is not binding on a court, which may disagree with an

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     administrator's interpretation of a statute. . . .").

In determining whether a rule carries the "force of law," the "criticalfactor" is "whether it le[aves] the agency officials free to exercisediscretion in an individual case" or instead requires a uniform,predetermined outcome that admits of no exception. Koch, supra, §4.11. The reason for the dichotomy appears to be a concern with thedemocratic legitimacy of agency action.

Under the established rulemaking system, the agencies trade abbreviated procedures for limited effect when they choose nonlegislative rules. The practical implication of this choice is clear. Where the nonlegislative rule articulates an enforcement strategy, the regulated can wait for enforcement secure that a court will be able to substitute judgment on the rule in reviewing the enforcement. For example, if the FTC issues a nonlegislative rule saying that it feels the failure to post octane ratings is a violation of its Act, the gasoline company may either be guided by the rule or, if they choose to challenge the rule, continue not to post ratings and await enforcement. In the latter case, they will be secure in the knowledge that the agency will have to demonstrate to a court the justification for its rule. On the other hand, if the FTC chooses a legislative rule the oil companies would know that review had been confined even though they would have the opportunity to participate in public rulemaking. In the former case, the company will know how to comply with the law as viewed by the FTC; whereas in the latter case it will also be more directly controlled by the rule.Id.

In other words, procedural mechanisms exist as democratic "checks" onthe delegated power of administrative agencies in promulgating bothlegislative and interpretative rules. Legislative rules are shapedthrough notice and comment but thereafter are entitled to deference inthe courts under the principles of Chevron, U.S.A., Inc. v. Natural Res.Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)(setting forth the familiar two-step test for judicial deference to anagency's legislative rule). Interpretative rules, meanwhile, are subjectto multiple layers of review in agency adjudication and much moreexpansive review in the courts. See United States v. Mead Corp.,533 U.S. 218, 221, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (confirmingthat Chevron deference does not apply to nonlegislative rules).13

It therefore should come as no surprise that recent First Circuit casesthat have found rules to be "interpretative" involved statements ofstatutory construction that set standards to be applied to specific factsin the course of agency adjudication. For example, Warder (on which thegovernment relies heavily in this case) involved an interpretive ruledefining durable medical equipment in Medicare reimbursementproceedings. 149 F.3d at 76. Applying Warder, Aviators for Safe and FairerRegulation, Inc. v. Federal Aviation Admin., 221 F.3d 222 (1st Cir.2000), involved the definition of "rest" as applied to certain

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     factual situations in FAA regulatory enforcement proceedings. The rulesat issue in both cases provided guidance for agency decisionmaking inspecific situations. They did not "create[] rights, assign[] duties, orimpose[] obligations, the basic tenor of which is not already outlined inthe law itself." Warder, 149 F.3d at 80.

The "rules" at issue in the above cases stand in stark contrastto the BOP policy at issue here, as Judge Woodlock observed: [I]t is apparent that application of a general legislative rule, rather than a specific adjudicative ruling, is involved in the attempted redesignation of [defendants from community confinement to secure facilities]. This is no mere effort at interpretive guidance but rather a rulemaking exercise designed to reshape the scope of a statutory provision through an administrative statement of lawmaking.Mallory, 2003 WL 1563764, at *2; see also Ashkenazi, 246 F. Supp.2d at 7n. 9 ("[I]rrespective of the BOP's characterization of its policy, thenew policy has the force of law and is not merely interpretive. . . . Thenew policy is [] not flexible and does not permit BOP to exercise anydiscretion."); cf. Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir.1998) (holding that a BOP definition of "nonviolent offense" waslegislative because it did not merely "explain" statutory meaning but"expanded" the reach of a regulation to bar offenders from earlyrelease).14

In attempting to classify this rule as "interpretative," whileaffording concerned parties no opportunity for meaningful input andsimultaneously insisting that the rule admits of no exception and islegally binding on the BOP, defendants, and judges, the government istrying to "have its cake and eat it too." This position is especiallytroubling here — because of its timing, its peremptory nature, andits source, the Department of Justice, which harbors an inherent conflictof interest as the BOP's "lawyer" and as a party advocate in criminalproceedings.

C. Retroactive Application of the Policy

A change in law has retroactive effect when it "attaches new legalconsequence to events completed before its enactment." Landgraf v. USIFilm Prods., 511 U.S. 244, 269-70, 114 S.Ct. 1483, 128 L.Ed.2d 229(1994). The retroactive application of laws, under certain (but not all)circumstances, can work harm of constitutional significance.Specifically, such a

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     practice can offend the principles of due process and the Constitution'sproscription of ex post facto laws. Id. at 266, 114 S.Ct. 1483. I findthat the BOP policy does both.

1. Ex Post Facto Clause

Section 9 of Article I of the United States Constitution, whichenumerates the powers of Congress, provides that "no Bill of Attainder ofex post facto Law shall be passed."15 The Supreme Court has long heldthat an ex post facto law is one that "retroactively alter[s] thedefinition of crimes or increase[s] the punishment for criminal acts."Cal. Dep't of Corrections v. Morales, 514 U.S. 499, 504-05, 115 S.Ct.1597, 131 L.Ed.2d 588 (1995) (citing, inter alia, Calder v. Bull, 3 U.S.(3 Dall.) 386, 391-92, 1 L.Ed. 648 (1798)). To succeed, an ex post factochallenge must show that the law in question "applies to conductcompleted before its enactment" and that "it raises the penalty fromwhatever the law provided when he acted." Johnson v. United States,529 U.S. 694, 699, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000).

The government argues that the BOP policy change does not "increase" anoffender's punishment; it only alters its conditions. Yet the inevitableresult of that alteration is to make it more punitive. See Iacaboni v.United States, 251 F. Supp.2d 1015, 1041-42 (D.Mass. 2003) ("[T]heprogression from a sentence with eligibility for possible communityconfinement to one without the remotest possibility of such eligibilityconstitutes a significant increase in the measure of punishment for theoffenses they pled guilty to. It is hard to imagine any fairmindedargument to the contrary, except from someone blind to the realities ofimprisonment." (emphasis added)).

It cannot be that the Ex Post Facto Clause only forbids retroactivegestures that make quantitative adjustments to criminal penalties, i.e.,increases in the length of sentences and the amount of fines imposed.Were that the case, a government could retroactively apply a lawmandating solitary confinement for certain prisoners — a positionthat the Supreme Court flatly rejected over a century ago. See In reMedley, 134 U.S. 160, 171, 10 S.Ct. 384, 33 L.Ed. 835 (1890) ("It seemsto us . . . that the solitary confinement to which the prisoner wassubjected by the statute . . . was an additional punishment of the mostimportant and painful character, and is therefore forbidden by thisprovision of the constitution of the United States.").

The BOP next contends that at no point in the criminal process arefederal defendants or prisoners guaranteed community confinement. Ittakes the position that there is no constitutional fault to a retroactivelaw that takes prisoners from "some possibility" to "no possibility" ofrelease into community confinement. And indeed, the Supreme Court hasmade clear that the Ex Post Facto Clause does not proscribe any and everylaw that carries the remotest risk of altering an existing prisoner'spunishment. Morales, 514 U.S. at 508, 115 S.Ct. 1597. The consequence ofso extreme a position would be too great — potentially invalidatinga number of reasonable restrictions on prisoners, including, forexample, limitations on access to law libraries. Id.

Morales ultimately held that the state law before the Court, whichauthorized a

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     state parole board to scale back the frequency of its hearings, admitted"only the most speculative and attenuated possibility" of a retroactiveincrease in punishment. Id. at 509, 115 S.Ct. 1597 ("[S]uch conjecturaleffects are insufficient under any threshold we might establish under theEx Post Facto Clause."). The Court observed that demarcation of thebounds of the Ex Post Facto Clause's coverage required principledline-drawing — in essence, the analysis reduces to "a matter ofdegree." Id. (quoting Beazell v. Ohio, 269 U.S. 167, 170, 46 S.Ct. 68, 70L.Ed. 216 (1925) ("[T]he constitutional provision was intended to securesubstantial personal rights against arbitrary and oppressivelegislation, and not to limit the legislative control of remedies andmodes of procedure which do not affect matters of substance.")).

But one need not rely on the same speculation, conjecture, orattenuated chain of cause and effect to come to a different conclusion inthis case — that the DOJ's clampdown on BOP discretion as to placeof imprisonment increases punishment for prisoners. Iacaboni, 251 F.Supp.2d at 1041 (observing that the BOP's policy change presents asituation "entirely different" from that in Morales — the risk ofincreased punishment "is not at all speculative"). The BOP had a clearand consistent policy of accepting (or at least considering) judicialrecommendations of community confinement at the outset of the sentenceand releasing prisoners into such facilities six months before the end oftheir terms. Ashkenazi, 246 F. Supp.2d at 7 (observing further that theBOP's routine exercise of its discretion as to place of confinement gaverise to an "understanding" among federal judges that the Bureau would atleast consider its recommendations before accepting or rejecting them).Through the lawmaking of its counsel, the BOP has instituted a wholesalereversal of that policy. No one is to go into community confinement— not at the beginning of their sentence, not in the middle. Theonly time transfer is somehow lawful is the last 10 percent of his termof imprisonment, and not, of course, to exceed six months.16

Admittedly, a judicial recommendation of community confinement does notguarantee a placement there; nor was the BOP bound by law to installprisoners in such facilities for the last six months of their terms. Butthis does not affect the ex post facto analysis. Id. at 3-4 (finding aprisoner to have made a strong showing of likelihood of success on hisclaim that the BOP policy change violated the Ex Post Facto Clause)(citing Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63(1997)).

In Lynce the Supreme Court found that the retroactive cancellation ofearly release credits violated the Ex Post Facto Clause. Lynce, 519 U.S.at 449, 117 S.Ct. 891. The fact that a prisoner was not necessarilyentitled to the credits when he pleaded guilty made no difference to theCourt. The new policy "made ineligible for early release a class ofprisoners who were previously eligible." Id. at 446, 117 S.Ct. 891. Theelimination of that eligibility — not withstanding that it camewith no guarantee — was sufficient to offend ex post factoprinciples.

The BOP's decision to strike community confinement from its menu ofprison options invites a comparison with Lynce, as the Ashkenazi courtnoted:

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Just as it was irrelevant in Lynce that the petitioner did not have a reasonable expectation of receiving the early release credits at the time he pled guilty, so it is irrelevant here that Ashkenazi had no guarantee that BOP would determine that he should serve his full sentence in a CCC. As in Lynce, Ashkenazi has been "unquestionably disadvantaged" by the new BOP policy. As a result of this policy, Ashkenazi is now ineligible not only to have the BOP exercise its discretion to determine where to place him, but to actually serve his sentence in a halfway house.Ashkenazi, 246 F. Supp.2d at 6; see also Iacaboni, 251 F. Supp.2dat 1041.

Nor does it matter that the "law" charged to be ex post facto is not acongressional enactment, but a revision of agency policy. The SupremeCourt held recently, in Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct.1693, 149 L.Ed.2d 697 (2001), that the Clause "is a limitation upon thepowers of the Legislature, and does not of its own force apply to theJudicial Branch of government." Id. at 456, 121 S.Ct. 1693. The Court hasyet to comment, however, on the applicability of the Ex Post Facto Clauseto agency rulemaking. In Hamm v. Latessa, 72 F.3d 947 (1st Cir. 1995),the First Circuit observed in dictum: [A]lthough the Supreme Court has not addressed the question of whether an administrative policy or regulation can be an ex post facto law, a number of courts have held that binding administrative regulations, as opposed to those that serve merely as guidelines for discretionary decisionmaking, are laws subject to ex post facto analysis.Id. at 956 n. 14 (citing Akins v. Snow, 922 F.2d 1558, 1561 (11th Cir.1991), Rodriguez v. United States Parole Comm'n, 594 F.2d 170, 174 (7thCir. 1979), and Love v. Fitzharris, 460 F.2d 382, 385 (9th Cir. 1972)).The Hamm court unearthed other cases that "can be read" to hold thatagency rules are not "laws" for purposes of Ex Post Facto Clauseanalysis, e.g., Kelly v. Southerland, 967 F.2d 1531, 1532-33 (11th Cir.1992); Inglese v. United States Parole Comm'n, 768 F.2d 932, 936 (7thCir. 1985), but these cases involved Parole Commission Guidelines andtherefore had no occasion to distinguish between non-binding guidelines(not "laws") and binding regulations ("laws").

It is beyond dispute that the BOP's recasting of § 3621(b), whichstrips it of its discretion in determining an inmate's place ofconfinement, has the binding effect of law. The DAG Opinion to the BOPcertainly appears to have trumped non-binding judicial recommendations.Given this result I would be hard pressed to view the policy change asanything other than law that binds the hands of the BOP.

Finally, the government argues that the DAG Opinion only corrected theBOP's "erroneous interpretation of preexisting law." Such corrections, itcontends, do not violate the Ex Post Facto Clause. See Metheny v.Hammonds, 216 F.3d 1307, 1310-11 (11th Cir. 2002) (citing cases in theSecond, Fourth, Fifth, and Tenth Circuits); see also Stephens v. Thomas,19 F.3d 498, 500 (10th Cir. 1994) (finding that a department ofcorrections' suspension of goodtime credit deemed unlawful under astatute did not violate the Ex Post Facto Clause); Mileham v. Simmons,588 F.2d 1279, 1280 (9th Cir. 1979) ("The Ex post facto clause of theConstitution does not give [an inmate] a vested right in . . . anerroneous interpretation [of law].").

The Ashkenazi court ably addressed this position as well. Thatcourt noted that in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960,67 L.Ed.2d 17 (1981), the Supreme Court held that "a law need notimpair a

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     `vested right' to violate the ex post facto prohibition." Ashkenazi, 246F. Supp.2d at 6 (quoting Weaver, 450 U.S. at 29, 101 S.Ct. 960). Rather,the Weaver Court observed: Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.Weaver, 450 U.S. at 30, 101 S.Ct. 960. Taking Weaver's cue, courts havefound that "administrative rules that purport to correct or clarify amisapplied existing law" can violate the Ex Post Facto Clause.Ashkenazi, 246 F. Supp.2d at 6 (citing, inter alia, Knuck v. Wainwright,759 F.2d 856, 859 (11th Cir. 1985)) (finding that the Department ofCorrections' policy change in "gain time" calculations, thoughinterpretive, violated the Ex Post Facto Clause because it conflictedwith 10 years of "established practice and regulations").

Here, where the BOP has for at least seventeen years "continuallyexercised [its] statutorily prescribed discretion" to place prisoners incommunity confinement facilities, Ashkenazi, 246 F. Supp.2d at 7, theDOJ's sneak attack on BOP discretion unequivocally burdens Weaver'sprinciple of fair notice. The rule change in Knuck was at least occasionedby a statutory amendment that invited (although it did not mandate) therevision at issue. The new BOP Policy, as I have observed, arrived out ofthe blue, during the holidays, without notice, comment, or legislativerumbling, to turn seventeen years' practice on its head. Ashkenazi, 246F. Supp.2d at 7 ("Here, the change in BOP policy prohibiting it fromexercising its discretion to determine a prisoner's place of confinementwas not foreseeable.").

The Ex Post Facto Clause simply forbids retroactive application of theBOP policy change to prisoners whose offense conduct predated thechange.

2. Due Process

The Fifth Amendment forbids the federal government from depriving aperson of his right to life, liberty, or property without due process.U.S. Const. amend. V. Among the numerous safeguards that due processprinciples provide is a protection against certain forms of retroactivelyapplied law. Due process "protects the interests in fair notice and reposethat may be compromised by retroactive legislation." Landgraf, 511 U.S.at 266, 114 S.Ct. 1483.

A law does not implicate due process unless it bears on a person'slife, liberty, or property interest. Am. Mfrs. Mutual Ins. Co. v.Sullivan, 526 U.S. 40, 60, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999); Neitzkev. Williams, 490 U.S. 319, 321-22, 109 S.Ct. 1827, 104 L.Ed.2d 338(1989). The First Circuit has held that an inmate has no liberty interestin continued participation in a work release program. Dominique v. Weld,73 F.3d 1156, 1159-61 (1st Cir. 1996). The Dominique court cited thestandard set forth in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132L.Ed.2d 418 (1995), where the Supreme Court held that a prisoner'sliberty interest is implicated only when government action "imposesatypical and significant hardship on the inmate in relation to theordinary incidents of prison life." Id. at 484, 115 S.Ct. 2293.

It was the First Circuit's view that transfer to more restrictiveconditions did not impose an "atypical" hardship: the conditions were "nodifferent from those ordinarily experienced by large numbers of otherinmates serving their sentences in customary fashion." Id. at 1160; seealso

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     Lyle v. Sivley, 805 F. Supp. 755, 760 (D.Ariz. 1992) (finding thatnotwithstanding the dictates of § 3624(c), an inmate had noconstitutional liberty interest in transfer to a less restrictiveenvironment) (citing Hewitt v. Helms, 459 U.S. 460, 467, 103 S.Ct. 864,74 L.Ed.2d 675 (1983) (holding that an inmate had no liberty interest inavoiding transfer to a more restrictive facility)). A prisoner cannotlevel a due process challenge to the BOP policy reversal on the groundthat he was unlawfully deprived of a liberty interest in communityconfinement.

However, the law does recognize a due process right not to be sentencedon false information. Roberts v. United States, 445 U.S. 552, 556, 100S.Ct. 1358, 63 L.Ed.2d 622 (1980); United States v. Tucker, 404 U.S. 443,447, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); see also United States v.Montoya, 967 F.2d 1, 2 (1st Cir. 1992) (recognizing that the accuracy ofinformation before the sentencing judge bears on the "fundamentalfairness" of the proceeding); United States v. Rone, 743 F.2d 1169, 1171(7th Cir. 1984) ("Convicted defendants, including those who pleadguilty, have a due process right to a fair sentencing procedure whichincludes the right to be sentenced on the basis of accurateinformation.") (citing Tucker). The misinformation, the Tucker Courtheld, must be of "constitutional magnitude." Tucker, 404 U.S. at 447, 92S.Ct. 589.

At least eight courts in published decisions have found this doctrineappropriate to apply in the present situation, where a trial courtsentenced with the understanding — and often with express assurancefrom BOP representatives — that a prisoner would be eligible forcommunity confinement at some point prior to the last 10 percent of histerm. The Iacaboni court, revisiting a sentence it had itself given,observed: In imposing this sentence, again, I relied on explicit information given to me to the effect that the BOP would consider carefully and, when appropriate, adopt judicial recommendations to community confinement. Had I known that this information was false, and that McKenzie would face automatic transfer to a distant, high security facility, with the resulting catastrophe to his children, my sentence almost certainly would have been different.Iacaboni, 251 F. Supp.2d at 1020-21 (finding that the BOP's sloughing ofits discretion violated due process in sentencing).

In Culter the court, assuming arguendo that the government's"correction" of its § 3621(b) interpretation was statutorilywarranted, held nonetheless that "the government's long-standing allegedmisinterpretation of the law, and the reliance induced by thatmisinterpretation, now precludes the government from retrospectivelycorrecting its mistake by sending petitioner to prison." Culter, 241 F.Supp.2d at 25-26 (citing DeWitt v. Ventetoulo, 6 F.3d 32, 35 (1st Cir.1993)). Other courts have upheld due process challenges. See, e.g.,Pearson, 265 F. Supp.2d at 979-83; Tipton, 262 F. Supp.2d at 637; Byrd,252 F. Supp.2d at 303; West, 2003 WL 1119990, at *4.17

[276 F. Supp.2d 221]

In cases in other districts — Pearson and Culter, most notably— the government has objected that United States v. Addonizio,442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805, bars due process relief onthis theory. Addonizio in fact held that a collateral attack — via28 U.S.C. § 2255 — on the lawfulness of a sentence must bepredicated on an "objectively ascertainable error," and not merely the"frustration of the subjective intent of the sentencing judge." Id. at187, 99 S.Ct. 2235. No such limitation is placed on a challenge to theconditions of a sentence under § 2241. Moreover, as the Pearson andCulter courts observed, the petitioner in Addonizio did not expresslyarticulate a due process challenge,18 and further, "there was nosuggestion in Addonizio that `the government had in any waymisrepresented the nature of its own authority to the court,'" as is truehere. Pearson, 265 F. Supp.2d at 979 (citing Culter, 241 F. Supp.2d at 26n. 7).

For that matter, an argument can be made that a sentencing court'sreliance on the BOP's longstanding policy — assuming that it were,as the government contends, a misinterpretation of § 3621(b) —resulted in a sentence infected with "objectively ascertainable error."Iacaboni so held, pointing to the "error" of Judge Ponsor's "assumption. . . that all three of these petitioners would be eligible for possibledesignation to a community confinement facility." Id. at 1042. That is,the BOP's exercise of its place-of-confinement discretion to thwart asentencing judge's intent would not be actionable, but a sentencematerially altered by the judge's "erroneous" view that BOP had anydiscretion at all, such that community confinement was at all apossibility, would pass muster to permit a § 2255 suit underAddonizio citing due process principles.19 See also Pearson, 265 F.Supp.2d at 980 ("Misinformation regarding the manner in which a sentencewill be executed may provide a basis for relief as well.").

Due process principles provide an independent ground to challenge theBOP policy reversal, at least for those prisoners whose sentences tookexisting policy into account.20

[276 F. Supp.2d 222]

V. CONCLUSION

For the foregoing reasons, I find that the BOP's post-December 2002policy with regard to community confinement is legally invalid.

For purposes of the injunctions at issue in Monahan and Sardinha'scases, the petitioners have fulfilled the legal prerequisites. Myanalysis above demonstrates clear likelihood of success on the merits.Improperly subjecting offenders to prison rather than communityconfinement inflicts irreparable harm on them, their families, and theircommunities. Recognition of the discretion to utilize communityconfinement inherent in the BOP's pre-December 2002 policy poses nospecial burdens on the government. And maintaining a full menu ofappropriate punishment options is in the public interest. See UtilityContractors Ass'n of New England, Inc. v. City of Worcester,236 F. Supp.2d 113, 117 (D.Mass. 2002) (laying out the aboveprerequisites for injunction).

Pereira's situation is different, because questions have been raisedwith respect to his eligibility for community confinement even prior tothe December policy. In the case of Costello and Silveira, this analysiswill be adopted in sentencing memoranda to be issued forthwith.

Separate, appropriate orders consistent with these findings will beissued (or have been issued) in each of the above-captioned cases.

SO ORDERED.

1. Monahan's lawyer at the time, who was subsequently suspended fromthe practice of law for neglect of cases and misrepresentations toclients, failed to seek a downward departure on any basis, even thoughMonahan's family circumstances clearly warranted consideration. Monahanlived with his wife of 18 years, Carrie, and his three adopted children.Carrie suffers from both an epileptic seizure disorder and systemiclupus, both of which have at times become acute and incapacitating. Allthree of Monahan's children were adopted from Korea and suffer fromsevere psychological disorders. Monahan's presence or proximity to hishome is crucial to assist with his wife's care, and to permit him to workand provide health insurance. He also has played a critical and indeed,irreplaceable role in the care and psychological well-being of hischildren.

2. While not uncommon in pro se cases, this sort of delay isdisturbing and completely unnecessary because the filing fee requirementis not jurisdictional. See Casanova v. Dubois, 304 F.3d 75, 80 (1st Cir.2002). The senselessness of the delay is compounded in Monahan's case byseveral additional circumstances. Monahan expressly indicated in thecover letter accompanying his petition that he had requested prisonauthorities to cut a $5 check from his account to be sent separately— his only means of submitting the filing fee — and he evenattached a copy of the official receipt for his request to the coverletter.

3. Counsel immediately brought the sudden change in Mr. Sardinha'splace of surrender to the Court's attention. I ordered Mr. Sardinha'ssurrender date to be extended pending briefing on the issue. Whileawaiting surrender, pursuant to the extended deadline, Mr. Sardinha fileda § 2255 petition.

4. In addition, the individual sentencings did not furnish the Courtwith an occasion to invalidate the policy, as would a habeas petitionbrought under § 2241.

5. Pereira's situation thus differs from that in another case recentlybefore me, Gammon v. Winn, No. 03-40127-NG, where it was clear thatapplication of the new BOP policy had delayed the petitioner's entry intocommunity confinement. Frank Gammon is serving a sentence of 27 months' imprisonment atFMC-Devens for two counts of interstate transportation of stolen vehicles(18 U.S.C. § 2312). Gammon's statutory release date, assuming goodbehavior, is October 24, 2003. Prior to December 2002, Gammon wasinformed by the BOP that he would transition to community confinement onApril 28, 2003, approximately 6 months prior to his release date. Based onthe new BOP policy, however, Gammon was informed that he would move tocommunity confinement for only the last 10 percent of his sentence, onAugust 15, 2003. The government expressly stated in a letter to Gammonthat the reason for the setback was the new BOP Policy. On or around May 13, 2003, Gammon brought a pro se petition for writ ofhabeas corpus under 28 U.S.C. § 2241, challenging the BOP policy andseeking a preliminary injunction ordering him to community confinement.The case came to the Court's attention on or around June 20, 2003, and apreliminary injunction hearing was scheduled for July 23, 2003. At thehearing, the petitioner elected to withdraw the action because hisdelayed transfer to community confinement under the new policy wasalready imminent — set for August 15, 2003.

6. The government's PLRA exhaustion defense obviously would not applyto Sardinha, who is not yet "confined," nor to Silveira and Costello, whohave not brought separate actions challenging the BOP policy. Thegovernment did not raise an exhaustion defense with respect to Gammon,presumably because he did seek an administrative remedy by writing aletter to Larry D. Thompson of the Department of Justice recitingobjections to the BOP policy, which was then answered by the respondent,Warden David Winn. Exhaustion would, however, be a potential issue inPereira's case, although the government did not raise the issue in itspapers in that case.

7. In contrast, civil rights actions under § 1983 alleging someconstitutional deprivation in connection with an individual securityclassification within a prison facility, for example, might arguably becovered by the PLRA exhaustion requirement.

8. Even if exhaustion were required in these cases (and it is not),the petitioners could undertake to exhaust administrative remedies rightnow, while their cases are pending before me. Exhaustion is a waivableaffirmative defense, not a jurisdictional requirement. See Casanova v.Dubois, 304 F.3d 75, 78 n. 3 (1st Cir. 2002) (adopting the position of amajority of circuits that the PLRA exhaustion requirement is anon-jurisdictional affirmative defense). I would be inclined to leave inplace the preliminary injunctive relief that I have granted whileexhaustion is under way in order to prevent irreparable harm to thepetitioner. See Jackson v. District of Columbia, 254 F.3d 262, 268 (D.C.Cir. 2001) ("[T]he PLRA contains nothing expressly foreclosing courtsfrom exercising their traditional equitable power to issue injunctions toprevent irreparable injury pending exhaustion of administrativeremedies. . . . [T]he court ha[s] inherent power to protect the prisonerswhile they exhaust[] administrative remedies."). In an abundance ofcaution, Monahan and Pereira would be well-advised to go through theexercise of administrative exhaustion, however futile it is likelyto be.

9. There is a certain disingenuousness about the "occasion" for thisrevisitation of policy. The DAG Opinion is written as if in response to aBOP consultation about an unanswered question regarding its authority,see DAG Opinion at 1 ("Your office has asked us to advise you. . . ."),when in fact the issue was well-settled in a BOP Program Statement andmanual. See Pearson 265 F. Supp.2d at 975 (citing U.S. Department ofJustice, Federal Bureau of Prisons, Judicial Resource Guide to theFederal Bureau of Prisons 15-16 (2000) ("The Bureau may designate anoffender directly to a community based facility to serve his or hersentence, but ordinarily this is done only with the concurrence of thesentencing court.")), and PS 7310.04, Community Corrections Center (CCC)Utilization and Transfer Procedure ¶ 5 (Dec. 16, 1998) ("[T]he Bureauis not restricted . . . in designating a CCC or an inmate and may placean inmate in a CCC for more than the `last ten percentum of the term,' ormore than six months, if appropriate."); Howard, 248 F. Supp.2d at 530-31(same).

10. The government also relies on the language of a particularrepresentative during floor debate, who observed of the proposedbill: My amendment would give them that opportunity to allow some home confinement with or without monitoring by telephonic or electronic signaling devices. The reason I am offering this amendment is because in the language of the bill as it is now out here before us, there has been a concern I have had for some time that we are giving a whole lot more authority to the Bureau of Prisons than we really ought to. . . . The language in the bill, without being amended, would have effectively allowed the Director and the Bureau of Prisons to release any prisoner for any length of time under home custody or whatever, so they would not have had to have served a day in prison.136 Cong. Rec. H8842-04, H8917 (1990). Of course, the substance of floordebate is still less reliable as an interpretive guide than would be ahouse report, which itself pales beside unambiguous language. See, e.g.,Landgraf v. USI Film Prods., 511 U.S. 244, 262 & n. 15, 114 S.Ct.1483, 128 L.Ed.2d 229 (1994) (discounting the interpretive value of"frankly partisan statements" made during legislative debate); Zuber v.Allen, 396 U.S. 168, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969) (observing thatfloor debate at best gives insight into the understanding of individuallegislators). The government's far from comprehensive legislativeexegesis of § 3621(b) — accomplished through a selectiveexcavation of the amendment history of another statute — invitesthe comparison that Judge Leventhal of the D.C. Circuit has drawnlikening legislative history citations to "looking over a crowd andpicking out your friends." Patricia Wald, Some Observations on the Use ofLegislative History in the 1981 Supreme Court Term, 68 Iowa L.Rev. 195,214 (1983) (paraphrasing Judge Leventhal); see also Conroy v. Aniskoff,507 U.S. 511, 519, 113 S.Ct. 1562, 123 L.Ed.2d 229 (1993) (Scalia, J.,concurring in the judgment) (same).

11. I agree with the government and Judge Lasker's order in Kennedyv. Winn, Civ. No. 03-10568-MEL (D.Mass. July 9, 2003) (slip op.), thatthe time-frame set down for § 3624(c) action could not be plainer:the statute applies for six months or the last 10 percent of a prisoner'sterm, whichever is shorter. In a posture similar to Mr. Pereira's, thedefendant in Kennedy was assigned an original release date into communityconfinement six months before the end of his prison term. After the DAGOpinion issued, the BOP pushed back that date so that Kennedy would serveonly the last 10 percent of his imprisonment in Coolidge House. JudgeLasker held that Kennedy was not entitled to that earlier release date. The Kennedy analysis stops short, however — it recognized that§ 3624(c) did not require that the BOP do anything until Kennedy metthe 10 percent marker, and stopped there. Left to consider is whether theBOP was allowed to move Kennedy into community confinement under §3621(b). Section 3624(c) requires the BOP to take steps to transition theprisoner back into society (steps that may, in its discretion under §3621(b), include release into community or home confinement programs, aswell as other meaningful gestures at pre-release transitioning devised orsponsored by the BOP). It does not require that the BOP send prisoners tocommunity confinement during the phase-in period, and it requires nothingof the BOP outside that period. Likewise, however, it does not curtailthe BOP's discretion under § 3621(b), vindicated in this decision, inIacaboni, and elsewhere around the nation, to move prisoners intocommunity confinement as and when appropriate. Given the crystal-clear language of § 3624(c), I can only concludethat the BOP's regular practice of releasing prisoners into CoolidgeHouse at the six-month mark — and not the 10 percent mark —of their sentences constituted an exercise of the discretion afforded tothe Bureau under § 3621(b). Indeed, the DAG Opinion seems to confirmthis — as it speaks in the language of § 3621(b) on this issue(what the BOP is allowed to do), and not § 3624(c) (what it isrequired to do). DAG Opinion at 1 ("[The BOP] has asked us to advise youwhether BOP has general authority, either upon the recommendation of thesentencing judge or otherwise, to place such an offender directly incommunity confinement at the outset of his sentence or to transfer himfrom prison to community confinement during the course of his sentence.We conclude below that the BOP has no such general authority.") (emphasisadded).

12. The APA broadly defines "rule" to include "the whole or partof an agency statement of general or particular applicability andfuture effect designed to implement, interpret, or prescribe lawor policy." 5 U.S.C. § 551(4).

13. If the BOP prevails on the argument that its new policy is merelyan "interpretative rule," then its construction of the statute actuallywill be entitled to less judicial deference than it otherwise might be.Because the government did not assert that the new policy is entitled toChevron deference, I did not undertake a Chevron inquiry in SectionIV.A. Even if I had conducted a Chevron inquiry, however, I would haveconcluded that the BOP policy is not a "permissible construction of thestatute[s]" at issue. Chevron, 467 U.S. at 843, 104 S.Ct. 2778.

14. It is of no consequence that the BOP's prior conclusion that itcould place offenders directly into community confinement, reflected inProgram Statement No. 7300.09, § 5.3.3, was not a "legislative" ruleadopted through notice and comment. The prior practice did not "bind"anybody and simply announced the manner in which the BOP intended toexercise discretion under its statutory duty of designating offenders tofacilities, a classic example of a general statement of policy orlegislative rule. The new rule, in contrast, purports to be legallybinding and dramatically curtails the BOP's discretion in a way that isnot obvious in the law itself. The government's reliance on Reno v. Koray, 515 U.S. 50, 115 S.Ct.2021, 132 L.Ed.2d 46 (1995), is also misplaced. That case upheld theBOP's policy of not crediting pretrial time spent in communityconfinement as "official detention" for purposes of sentence credit,while it simultaneously confirmed that time in community confinementunder BOP custody would count. While the Court mentioned in dicta— drawn from dicta in the lower court's opinion — that theProgram Statement containing the credit policy was "interpretive," thecase says nothing of import about how the legislative/interpretativedistinction applies here. See Iacaboni, 251 F. Supp.2d at 1040; Wigginsv. Wise, 951 F. Supp. 614, 620 n. 4 (S.D.W.Va. 1996).

15. A second Ex Post Facto Clause, lodged in Section 10 of Article I,is enforceable against the states. U.S. Const. art. I, § 10, cl. 1("No state shall . . . pass any . . . ex post facto Law. . . .").

16. And, as I have noted, the government's position that communityconfinement is appropriate at this stage is flatly inconsistent with thereading of § 3621(b) that the DOJ impressed upon the Bureau. Ifcommunity confinement counts for "prison" in the waning days of one'ssentence, it counts for "prison" throughout.

17. Two other cases to address the community confinement issue suggestthat relief to prisoners could well be available on this theory, UnitedStates v. Kramer, 2003 WL 1964489 (N.D.Ill., Apr.28, 2003), and UnitedStates v. James, 244 F. Supp.2d 817 (E.D.Mich. 2003), found simply thatit was not viable on the facts before those courts. That is, the courts— which in both cases reviewed the claims of prisoners theythemselves had sentenced — found no due process violation becausethe preexisting BOP policy was not material to their sentencingdecisions. Kramer, 2003 WL 1964489 at *3 ("[T]he Court accepted theparties' agreement to a nine month prison term without regard to thepossibility that Kramer would be designated to a CCC. Put another way, wewould have imposed exactly the same sentence even if the former policy ofCCC designation had not existed."); James, 244 F. Supp.2d at 819 ("[T]hisCourt did not rely on any false information in passing sentence. . . .[E]ven if the information concerning the BOP was accurate at the time ofsentencing in this case, the outcome would be identical: the Court wouldhave sentenced Defendant-Petitioner to an imprisonment term of one yearand one day.").

18. It is the view of the Pearson and Culter courts that a due processclaim against retroactive application of the BOP's new policy isavailable even under § 2255, notwithstanding Addonizio, because sucha claim "is explicitly a constitutional one, and thus fits comfortablywithin the traditional rubric of . . . § 2255." Pearson, 265 F.Supp.2d at 980 (citing Culter, 241 F. Supp.2d at 27 n. 7).

19. The cases to date that have found no due process violationtend not to recognize this distinction.

20. The time-triggers of Ex Post Facto and Due Process Clauseprotection differ in this context. The Ex Post Facto Clause protects aprisoner from changes in the law that occur after he commits the crime.The BOP policy change only offends due process principles insofar as thealtered conditions of a prisoner's sentence were not known to thesentencing court. As a result, where a defendant's offense conductpredated the policy change but his plea and sentencing occurred after thechange, only ex post facto principles bar retroactive application of theBOP policy. Thus, due process concerns are implicated in the cases ofSardinha, Monahan, and Pereira. With respect to Costello and Silveira,the Court sentenced after the policy change and expressly departeddownward to compensate for the BOP's unlawful policy. An Ex Post Factoanalysis applies to all of the individuals whose cases are addressed inthis Memorandum.

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