Rodriguez v. Smith

• Decision Date: 04 September 2008
• Docket Number: No. 07-16014.,07-16014.
• Citation: 541 F.3d 1180
• Parties: Jose RODRIGUEZ, Petitioner-Appellee, v. Dennis SMITH, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

541 F.3d 1180

Jose RODRIGUEZ, Petitioner-Appellee, v. Dennis SMITH, Warden, Respondent-Appellant.

No. 07-16014.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 2008.

Filed September 4, 2008.

McGregor W. Scott, Thomas E. Flynn, Sacramento, CA, (briefed), and Phillip A. Talbert, Sacramento, CA, (argued), for respondent-appellant Dennis Smith.

Stephen R. Sady, Lynn Deffebach, Portland, OR, for petitioner-appellee Jose Rodriguez.

Appeal from the United States District Court for the Eastern District of California; Lawrence J. O'Neill, District Judge, Presiding. D.C. No. CV-07-00190-LJO/DLB.

Before: PROCTER HUG, JR., PAMELA ANN RYMER, and JOHNNIE B. RAWLINSON, Circuit Judges.

Opinion by Judge RAWLINSON; Dissent by Judge RYMER.

RAWLINSON, Circuit Judge:

Petitioner-Appellee Jose Rodriguez (Rodriguez) filed a petition for writ of habeas corpus seeking an order directing the Bureau of Prisons (BOP) to immediately consider transferring Rodriguez to a Residential Re-entry Center (RRC)¹ pursuant to the factors set forth in 18 U.S.C. § 3621(b), and without reference to certain BOP policies that he asserted contradict the plain language and intent of § 3621(b). The district court granted the petition. Respondent-Appellant Warden Dennis Smith (Smith) appeals the district court's order. We conclude that the BOP's categorical exercise of discretion as promulgated in 28 C.F.R §§ 570.20 and 570.21 violates Congress's intention regarding the statutory inmate placement and transfer considerations the BOP must undertake, and we affirm the district court's decision.

I. FACTS AND PROCEDURAL HISTORY

A. Factual Background

Rodriguez pled guilty to charges of conspiracy to distribute methamphetamine and money laundering, and, in April, 2001, was sentenced to 195 months in federal prison. His projected release date is November 11, 2013.

When Rodriguez was advised that he would not be eligible for consideration for RRC placement until 11-13 months immediately preceding his projected release date, he filed a petition for a writ of habeas corpus challenging the BOP regulations that prevented him from being immediately considered for RRC placement. The petition asserted that the BOP's policy directly conflicts with 18 U.S.C. § 3621(b). Having served "over 60 percent" of his sentence, Rodriguez argued that he was eligible for consideration for a less restrictive placement.

The magistrate judge recommended that the district court grant the petition, stating "[A]lthough the BOP has discretion to refuse to place an inmate in a correctional facility, the exercise of discretion must be based at least in part on the specific factors outlined in § 3621(b), and the BOP regulations set forth in §§ 570.20 and 570.21 simply ignore those factors. As such, the regulations contradict, rather than interpret, § 3621(b), and no deference is owed." The magistrate judge also recommended that Smith "be [ordered] to consider the appropriateness of transferring [Rodriguez] to an RRC in light of the factors set forth in § 3621(b), not excluding any other factors deemed appropriate by the BOP, without reference to [the challenged] BOP policy ..."

The district court adopted the Findings and Recommendation and granted the petition. Smith filed a timely notice of appeal.

B. Statutory and Regulatory Background

Under 18 U.S.C. § 3621(b), the BOP has authority to designate the place of an inmate's imprisonment.² Prior to December 13, 2002, the BOP exercised its discretion to allow a prisoner to serve all or part of his imprisonment in an RRC. See 69 Fed.Reg. 51213 (Aug. 18, 2004). This practice came to an end following the issuance of a legal opinion by the Office of Legal Counsel (OLC) of the Department of Justice advising that § 3621(b) did not authorize the BOP to place an inmate in an RRC for the entire term of his sentence, because community confinement did not constitute imprisonment. Id. The OLC relied on 18 U.S.C. § 3624(c) and the OLC's understanding that this section allowed placement in community confinement only during the last ten percent of the prison sentence being served. Id.

Accordingly, effective December 20, 2002, the BOP changed its procedure to limit the time during which an inmate was eligible for placement in an RRC to the final ten percent of his sentence, or six months, whichever was shorter. Id. However, the BOP's "change was challenged in the Federal courts." Id. Both the First and the Eighth Circuits found this policy unlawful because it failed to recognize the BOP's discretion to transfer an inmate to an RRC at any time and was therefore contrary to the plain meaning of § 3621. See Goldings v. Winn, 383 F.3d 17, 24 (1st Cir.2004); see also Elwood v. Jeter, 386 F.3d 842, 847 (8th Cir.2004).

In response to these decisions, the BOP changed course. Contradicting its earlier position in 2002 that it lacked authority to place an inmate in an RRC prior to the end of the inmate's sentence, the BOP recognized that it generally has discretion under § 3621(b) to an place inmate in an RRC at any time. 69 Fed.Reg. 51213. However, the BOP elected to "exercise its discretion categorically to limit inmates' community confinement to the last ten percent of the prison sentence being served, not to exceed six months." Id.

The final rules were published as 28 C.F.R. §§ 570.20, 570.21 on January 10, 2005, see 70 F.R. 1659, 2005 WL 34181, and became effective on February 14, 2005.³ Id.

C. Other Circuit Court Decisions

Although this case raises an issue of first impression in this Circuit, as discussed below, five other circuits have directly addressed the matter. See Muniz v. Sabol, 517 F.3d 29 (1st Cir.2008); Levine v. Apker, 455 F.3d 71, 87 (2d Cir. 2006); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 244(3d Cir.2005); Fults v. Sanders, 442 F.3d 1088, 1091 (8th Cir. 2006); and Wedelstedt v. Wiley, 477 F.3d 1160, 1161-62 (10th Cir.2007). The Second, Third, Eighth and Tenth Circuits have each concluded that Congress's intent regarding inmate placement and transfer as codified is clear from the plain language of 18 U.S.C. § 3621(b), and the BOP regulations establishing a categorical temporal limitation on eligibility for RRC placement contravene the plain meaning of the statute. Only the First Circuit has upheld the BOP regulations as an appropriate exercise of the BOP's discretion.

II. STANDARD OF REVIEW

We review questions of statutory interpretation de novo. United States v. Horvath, 492 F.3d 1075, 1077(9th Cir. 2007). "Because this case involves an administrative agency's construction of a statute that it administers, our analysis is governed by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 ..." Mujahid v. Daniels, 413 F.3d 991, 997 (9th Cir.2005) (citations omitted).

Under the Chevron framework we must "first determine[] if Congress has directly spoken to the precise question at issue, in such a way that the intent of Congress is clear." Id. (citation and internal quotation marks omitted). "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, 467 U.S. at 842-43, 104 S.Ct. 2778 (footnote reference omitted).

III. DISCUSSION

A. The BOP Regulations Violate the Clear and Unambiguous Congressional Intent Expressed in § 3621(b).

Employing the Chevron analysis, we must first determine whether Congress's intention regarding the BOP's discretion in determining prisoner placements and transfers is clear from the text of 18 U.S.C. § 3621(b). If the statute is clear, we then decide whether the BOP's regulations violate that clearly expressed intent. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778.

Smith relies on 18 U.S.C. § 3624(c) to explain the interplay between the BOP regulations and § 3621(b). He argues that because § 3624(c) limits when an inmate may be placed in an RRC, "prisoners have no right to be considered for an RRC placement until they have finished 90% of their sentence. Seen from this point of view, the BOP's decision in the regulations to impose exactly this limitation is not only a reasonable interpretation of the statute, but the only reasonable interpretation." In essence, Smith contends that in light of § 3624(c), Congress's intent with respect to § 3621(b) is not clear from the statute, and thus deference is owed to the BOP's interpretations (as expressed in 28 C.F.R. §§ 570.20 and 570.21).

However, the plain language of both §§ 3621(b) and 3624(c) make clear that this argument must fail. Section 3621(b) provides in part that "[t]he 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.... The Bureau may at any time ... direct the transfer of a prisoner from one penal or correctional facility to another." 18 U.S.C. § 3621(b)(emphases added).

Section 3624(c) 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).⁴

Contrary to Smith's argument that § 3624(c) limits placement in RRCs to the last ten percent of the sentence being served, the statute provides that "of" the last ten percent of the prisoner's sentence, the BOP shall, to the extent practicable, allow a prisoner to spend up to six months of that time in an institution such as an RRC. See id. (emphasis added). Thus, although this statute imposes an affirmative duty on the BOP to consider...