Muniz v. Sabol

• Decision Date: 26 February 2008
• Docket Number: No. 06-2693.,No. 06-2692.,06-2692.,06-2693.
• Citation: 517 F.3d 29
• Parties: Richard MUNIZ, Victor Gonzalez, Petitioners, Appellees, v. Carolyn A. SABOL, Warden, Respondent, Appellant.
• Court: U.S. Court of Appeals — First Circuit

517 F.3d 29

Richard MUNIZ, Victor Gonzalez, Petitioners, Appellees, v. Carolyn A. SABOL, Warden, Respondent, Appellant.

No. 06-2692.

No. 06-2693.

United States Court of Appeals, First Circuit.

Heard May 11, 2007.

Decided February 26, 2008.

Mark J. Grady, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellant.

Judith H. Mizner, Assistant Federal Public Defender, with whom Miriam Conrad, Federal Public Defender, Districts of Massachusetts, New Hampshire and Rhode Island was on brief, for appellees Muniz and Gonzalez, amicus curiae.

Richard Muniz and Victor Gonzalez, appellees, on brief pro se.

Peter Goldberger on brief for Families Against Mandatory Minimums Foundation, The National Association of Criminal Defense Lawyers and The Criminal Justice Act Board for the United States District Court for the District of Massachusetts, amici curiae.

Before BOUDIN, Chief Judge, HOWARD, Circuit Judge, and O'TOOLE,^* District Judge.

HOWARD, Circuit Judge.

This case requires us to decide whether the Bureau of Prisons (BOP) may, through rulemaking, deny placement in a community corrections center (CCC)¹ to all prisoners during the first ninety percent of their sentences. The question has divided district court judges in this and other circuits, although the four circuit courts of appeal that have considered the issue have determined that the BOP lacks such authority.² Each of the circuit opinions has been accompanied by a dissent. While we are loath to create a circuit split, we respectfully side with the dissenters. The BOP may make rules of general applicability to guide the individualized application of its discretion. Of course those rules must conform to the strictures of the Administrative Procedures Act, 5 U.S.C. § 555 et seq. (APA).³ And, as here, where Congress has mandated that the BOP consider certain factors in its determination, the rules the BOP makes must still leave room for meaningful consideration of the factors. Our analysis differs from the other circuits in two important respects. First, our analysis of the statute reveals that the decision whether to transfer an inmate is not constrained by the factors Congress lists, although the decision where to transfer an inmate might be. And second, even in initial assignment decisions, the question whether a CCC is appropriate is only a part of the overall decision with which the BOP is charged by statute. The remaining options provide opportunity for meaningful individualized consideration, as the statute implies. Because the BOP is merely setting background rules for the operation of its discretion, the BOP can apply its regulation and still comply with the statute.

Petitioners Richard Muniz and Victor Gonzalez sought writs of habeas corpus pursuant to 28 U.S.C. § 2241. Each claimed that BOP regulations delaying his transfer to a CCC were contrary to the BOP's statutory mandate and therefore invalid. The district court consolidated the cases, agreed with the petitioners, and granted the petitions. The district court also certified the two cases under 28 U.S.C. § 1292(b), finding that there was a "controlling question of law" (the legality of the BOP regulations) as to which there was "a substantial ground for difference of opinion" (the split in the district courts). The BOP appealed.

1. The Statute

The authority to assign and transfer prisoners to places of confinement is conferred on the BOP by 18 U.S.C. § 3621(b).⁴ The statute affords the BOP wide discretion to choose any "appropriate and suitable" facility, "considering" five factors. Broadly, those are the facility, the offense, the prisoner, any statement of the sentencing court, and any pertinent policy statement issued by the Sentencing Commission.⁵ Id. In addition, the BOP "may at any time, having regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility to another." Id.

2. BOP Policy

The BOP had a longstanding practice of transferring inmates, with some exceptions, to CCCs to serve the last six months of a sentence. See Goldings v. Winn, 383 F.3d 17, 19 & n. 1 (1st Cir.2004) (describing policy before 2002); lacaboni v. United States, 251 F.Supp.2d 1015, 1017 (D.Mass.2003) ("[R]ecommendations to community confinement have been made in thousands of cases by hundreds of judges continuously since at least 1965, and in nearly all instances accepted by the BOP.") For some short sentences, this might mean that the entire sentence was served in community confinement, rather than in a prison or jail. Indeed, the BOP would sometimes place short-time convicts serving sentences longer than six months in CCCs for their entire sentences. See, e.g., lacaboni, 251 F.Supp.2d at 1019 (ten-month sentence with recommendation for community confinement that was initially adopted by BOP before policy change); Id. at 1020 (sentence of one year and one day; prisoner assigned to CCC on judge's recommendation before BOP policy change). In doing so, the BOP often relied on the recommendation of the sentencing judge. Id.; see also Monahan v. Winn, 276 F.Supp.2d 196, 198 (D.Mass.2003) (noting "long-established BOP policy and practice of adopting judicial recommendations to place nonviolent inmates in such facilities to serve short terms of imprisonment").

In December 2002, the Department of Justice's Office of Legal Counsel issued a Memorandum deeming the practice "unlawful." See Goldings, 383 F.3d at 20.

The BOP advised its officers that placement in CCCs would thenceforth be available only to inmates during the last ten percent of their sentences, however short, regardless of the sentencing judge's recommendation. Id.

The new policy ("the 2002 policy") was predicated on the interaction of § 3621(b) and another statute, § 3624(c), which provides:

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). The 2002 policy was based on the argument that § 3624(c) marked the limits of the BOP's discretion to use CCCs as places of imprisonment, or, in the alternative, that CCCs were not penal or correctional facilities within the scope of § 3621(b) at all. See Goldings, 383 F.3d at 22-23.

The new policy was applied to prisoners already sentenced, including both those who had already been placed in a CCC under the old policy, those who had been sentenced and assigned but had not yet reported to begin serving their terms, and those who had been sentenced but not yet assigned. This upset the considered expectations not only the prisoners themselves, but of the judges who had sentenced them. Unsurprisingly, the 2002 policy "generated a flood of lawsuits in the federal district courts." Id. at 19.

We held in Goldings that the 2002 policy was contrary to the plain meaning of 18 U.S.C. § 3621(b). Id.; see also Elwood v. Jeter, 386 F.3d 842 (8th Cir.2004) (adopting reasoning and conclusion of Goldings). We held the time limits in § 3624(c) did not cabin the discretion afforded to § 3621(b), but merely marked the limits of the time period for which the BOP had to "assure" "to the extent practicable" that conditions would be conducive to re-entry. We further held that CCCs were "correctional facilitlies}" for the purposes of § 3621(b), and therefore the BOP could place prisoners in them. Goldings, 383 F.3d at 28.

In 2005 the BOP promulgated regulations ("the 2005 regulations") providing its "categorical exercise of discretion for designating inmates to community confinement."⁶ 28 C.F.R. § 570.20(a). The BOP maintained that it would assign inmates to community confinement "only as part of pre-release custody and programming, during the last ten percent of the prison sentence being served, not to exceed six months." 28 C.F.R. § 570.21(a).⁷ Thus, the BOP has codified as a formal rule the substance of the 2002 policy, reaching the same result by relying on the opposite rationale: instead of arguing, as previously, that it lacks discretion to make CCC placements before the last ten percent of a sentence, BOP now claims its discretion is broad enough to allow it to make a categorical rule preventing such placements.

3. Jurisdiction and Mootness

We regard this case as properly before us, but we pause to address two possible obstacles to our review: jurisdiction and mootness.

First, jurisdiction is appropriate because a habeas petition seeking relief from the manner of execution of a sentence is properly brought under 28 U.S.C. § 2241. Rogers v. United States, 180 F.3d 349, 357 (1st Cir.1999) (habeas petition under § 2241 appropriate vehicle for challenging failure to designate state prison as place for confinement); see also Levine, 455 F.3d at 78 (finding jurisdiction under § 2241 for habeas challenge to the same BOP regulations challenged here). But see Richmond v. Scibana, 387 F.3d 602, 605-06 (7th Cir.2004) (challenge to the 2002 policy must be pursued as civil litigation under the APA, rather than in habeas under § 2241).⁸

Second, the issue is not moot. Petitioner Gonzalez has a predicted release date of August 31, 2008. According to the district court, he would have been eligible for CCC transfer on February 17, 2008 under the old policy, but has been informed that he will not be transferred to a CCC until March 18. Petitioner Muniz's case is likely moot.⁹ But that in no way hinders our review because Gonzalez's case is clearly not moot.¹⁰

4. Standard of Review

"When we are asked to review an agency's construction of a statute that it administers, we review that agency's interpretation de novo, subject to established principles of deference." Perez-Olivo v. Chavez, 394 F.3d 45, 48 (1st Cir.2005...