Elwood v. Jeter

• Decision Date: 18 October 2004
• Docket Number: No. 04-2253.,04-2253.
• Citation: 386 F.3d 842
• Parties: Anthony R. ELWOOD, Plaintiff-Appellant, v. Cole JETER, Warden, FCI Forrest City; United States Bureau of Prisons, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

386 F.3d 842

Anthony R. ELWOOD, Plaintiff-Appellant, v. Cole JETER, Warden, FCI Forrest City; United States Bureau of Prisons, Defendants-Appellees.

No. 04-2253.

United States Court of Appeals, Eighth Circuit.

Submitted: September 13, 2004.

Filed: October 18, 2004.

Appeal from the United States District Court for the Eastern District of Arkansas, J. Thomas Ray, United States Magistrate Judge.

Tim Cullen, argued, Little Rock, AR, for appellant.

E. Fletcher Jackson, argued, Asst. U.S. Atty., Little Rock, AR, for appellee.

Before RILEY, LAY, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Anthony Elwood ("Elwood") appeals the district court's denial of his Petition for a Writ of Habeas Corpus, alleging that the Bureau of Prisons's ("BOP") policy of limiting prisoner placement in Community Corrections Centers ("CCC") to the lesser of six months or ten percent of the prisoner's sentence is illegal. We reverse.

Procedural Background

On May 28, 2002, Elwood pled guilty to one count of wire fraud in the United States District Court for the Western District of Missouri. On February 20, 2003, the district court sentenced him to forty-eight months in prison, followed by three years of supervised release. Upon entering prison, Elwood learned that he would not be eligible for transfer to a CCC until November 28, 2005, which would be, with the application of good time credits, four months from the end of his sentence. Elwood filed grievances asserting that he should be transferred to a CCC at an earlier date.¹ Elwood's grievances were denied. On December 31, 2003, Elwood filed a Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241. The district court denied his petition on May 5, 2004.

The History of the BOP's Placement Policies

At the time Elwood pled guilty, the BOP had a policy of allowing prisoners to serve their last six months of incarceration in a CCC regardless of what percent of the sentence this six months comprised. However, on December 13, 2002, in response to an inquiry by the BOP, the Office of Legal Counsel of the U.S. Department of Justice issued a Memorandum (the "Memorandum") that found the BOP's CCC placement policy illegal because it was inconsistent with the BOP's statutory grant of authority.

The BOP is granted authority to designate the place of an inmate's imprisonment in 18 U.S.C. § 3621(b):

(b) Place of imprisonment.—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 ... that the Bureau determines to be appropriate and suitable.... The Bureau may at any time ... direct the transfer of a prisoner from one penal or correctional facility to another.

However, this grant of authority must be read in conjunction with 18 U.S.C. § 3624(c):

(c) Pre-release custody.—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 subsection may be used to place a prisoner in home confinement. The United States Probation System shall, to the extent practicable, offer assistance to a prisoner during such pre-release custody.

The Memorandum concluded that the BOP's policy of placing prisoners in CCCs for six months at the end of their terms was inconsistent with § 3621(b) and § 3624(c). The Memorandum acknowledged that § 3621(b) gave the BOP the authority to choose an inmate's place of imprisonment generally. However, the Memorandum found that "[c]ommunity confinement does not constitute imprisonment." Memorandum at 1, available at http:// www.usdoj.gov/olc/allopinionstxt.htm. Therefore, § 3621(b), which gives the BOP the power to decide a prisoners "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 the BOP had no authority to transfer a prisoner to a CCC, except for the lesser of the last ten percent of the sentence and the last six months of the sentence.

The United States Attorney General's Office Adopted the Office of Legal Counsel's position on December 16, 2002. 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.

Under the new BOP policy, Elwood is eligible for placement in a CCC beginning November 28, 2005, during only the last four months of his sentence, while under the old BOP policy, he would be eligible for placement in a CCC for a full six months of his sentence. Elwood argues that the new policy is illegal, and that he is entitled to additional time in a CCC near the conclusion of his confinement.

Discussion

A. Standard of Review

When reviewing an agency's interpretation of a statute, we must first consider "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If "Congress has not directly addressed the precise question at issue ... the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778. We find that, here, Congress addressed the issue, so we need not look to the agency's interpretation of the statute.

B. Analysis

Elwood brings three challenges to the BOP's new placement policy. First, Elwood claims that the policy is based on an erroneous interpretation of two statutory provisions, 18 U.S.C. §§ 3621(b) and 3624(c). Second, Elwood argues that the policy violates the Administrative Procedures Act ("APA"), 5 U.S.C. § 553, because it was not published and made available for public comment. Third, Elwood contends that the policy violates the Ex Post Facto Clause. Because we grant relief on Elwood's statutory argument, we need consider neither his APA nor Ex Post Facto claims.

Elwood argues that, based on 18 U.S.C. §§ 3621(b) and 3624(c), the BOP may transfer an inmate to a CCC at any time and must transfer an inmate for a reasonable part of the last ten percent of his or her sentence, though this obligation does not extend beyond six months. His reading of the statutes is based on the following claims. First, § 3621(b) gives the BOP the authority to transfer an inmate to any penal or correctional facility at any time. Second, a CCC is a penal or correctional facility and a place of imprisonment. Third, § 3624(c) reads:

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.

18 U.S.C. § 3624(c) (emphasis added). Elwood contends this "shall" bestows a duty on the BOP to transfer inmates, not merely a power to do so. Therefore, Elwood argues, the BOP has the discretion to transfer him to a CCC at any time during his sentence, and the BOP must transfer him to a CCC or similar conditions for the last ten percent of his term, unless it is not practicable to do so.

Until recently, no appeals court had spoken on the issue of the legality of the BOP's current placement policy. However, the First Circuit in a recent decision, Goldings v. Winn, 383 F.3d 17 (1st Cir. 2004), agreed with Elwood's interpretation of the statutes and invalidated the policy. In addition, the judgments of several district courts support Elwood's interpretation. See, e.g., Schoenfeld v. Menifee, No. 04Civ.3551NRB, 2004 WL 1516797 (S.D.N.Y. July 7, 2004); Zucker v. Menifee, No. 03 Civ. 10077(RJH), 2004 WL 102779 (S.D.N.Y. Jan.21, 2004); Fagiolo v. Smith, 326 F.Supp.2d 589 (M.D.Pa.2004); Cato v. Menifee, No. 03 Civ. 5795(DC), 2003 WL 22725524 (S.D.N.Y. Nov.20, 2003); Grimaldi v. Menifee, No. 04CIV1340DABGWG, 2004 WL 912099 (S.D.N.Y. Apr.29, 2004).

The government, on the other hand, contends that the current BOP policy reflects the correct interpretation of 18 U.S.C. §§ 3621(b) and 3624(c). The government agrees with Elwood that § 3621(b) gives the BOP authority to "at any time ... direct the transfer of a prisoner from one penal or correctional facility to another." See 18 U.S.C. § 3621(b). It also agrees that a CCC is a penal or correctional facility and a place of imprisonment.² However, the government reads § 3624(c) to be a limit on the general authority granted in § 3621(b), and not an affirmative duty to place inmates in CCCs for the conclusion of their time of incarceration. See Varity Corp. v. Howe, 516 U.S. 489, 511, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996) (holding that when construing statutes, the "specific governs the general" (internal citations omitted)). Therefore, the government concludes, the BOP may transfer an inmate to a CCC only during the last ten percent of the inmate's term, and not to exceed six months....