Wedelstedt v. Wiley

• Decision Date: 20 February 2007
• Docket Number: No. 06-1461.,06-1461.
• Citation: 477 F.3d 1160
• Parties: Edward J. WEDELSTEDT, Petitioner-Appellee, v. Ron WILEY, Warden, Federal Correctional Institution—Camp Florence, Colorado, Respondent-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

477 F.3d 1160

Edward J. WEDELSTEDT, Petitioner-Appellee, v. Ron WILEY, Warden, Federal Correctional Institution—Camp Florence, Colorado, Respondent-Appellant.

No. 06-1461.

United States Court of Appeals, Tenth Circuit.

February 20, 2007.

John M. Hutchins, Assistant United States Attorney (Troy A. Eid, United States Attorney, with him on the briefs), Office of the United States Attorney, Denver, CO, for Appellant.

Kerri L. Ruttenberg (Henry W. Asbill with her on the brief), LeBoeuf, Lamb, Greene & MacRae, Washington, DC, for Appellee.

Before MURPHY, McWILLIAMS, Senior Judge, and HARTZ, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Petitioner-Appellee Edward J. Wedelstedt, a federal inmate housed at the Federal Prison Camp in Florence, Colorado, applied to the district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Wedelstedt challenged the lawfulness of Bureau of Prisons ("BOP") regulations prohibiting his transfer to a Community Correctional Center ("CCC") until ten percent of his sentence remains. Wedelstedt argued the regulations, codified at 28 C.F.R. §§ 570.20 and 570.21, are inconsistent with clear congressional intent articulated in 18 U.S.C. § 3621(b). Adopting the reasoning of the Second, Third, and Eighth Circuits, which previously considered the same issue and invalidated the regulations, the district court granted Wedelstedt's writ and ordered the BOP to consider placing Wedelstedt in a CCC without regard to the BOP regulations. Wedelstedt v. Wiley, 2006 WL 2475268, at *5 (D.Colo. Aug.24, 2006).¹

Respondent-Appellant, Ron Wiley, Warden of the Florence Federal Correctional Institution, filed a timely appeal. Respondent contends the regulations are premised on a reasonable interpretation of 18 U.S.C. § 3621(b) and § 3624(c), are permissible under Lopez v. Davis, 531 U.S. 230, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001), and were promulgated in accordance with the Administrative Procedure Act.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court adopts the reasoning of the Second, Third, and Eighth Circuits. The BOP regulations contradict Congress' clear intent that all inmate placement and transfer decisions be made individually and with regard to the five factors enumerated in 18 U.S.C. § 3621(b). The regulations at issue supplant the five factors and, therefore, are invalid. This court, accordingly, affirms the district court's grant of Wedelstedt's habeas writ and its order that Wedelstedt be considered for CCC placement without regard to 28 C.F.R. §§ 570.20 and 570.21.

II. BACKGROUND

A. Regulatory and Statutory Provisions

Section 570.21 of the BOP's regulations states the BOP "will designate inmates to community confinement only ... during the last ten percent of the prison sentence being served, not to exceed six months." 28 C.F.R. § 570.21(a). Section 570.20 establishes the purpose of the regulations as a "categorical exercise of discretion for designating inmates ... to community confinement only as part of pre-release custody and programming which will afford the prisoner a reasonable opportunity to adjust to and prepare for re-entry into the community." 28 C.F.R. § 570.20(a). The BOP's notice accompanying the publication of its proposed rules explained that its prohibition on placing inmates in CCCs prior to the final portion of their sentences was consistent with considerations articulated by Congress in 18 U.S.C. § 3621(b), sentencing policy articulated by Congress in 18 U.S.C. § 3624(c), Congress' general interest in deterring future criminal conduct, and policies articulated by the United States Sentencing Commission in § 5C1.1 of the Sentencing Guidelines. See Community Confinement, 69 Fed.Reg. 51213, 51214-15 (proposed Aug. 18, 2004) (to be codified at 28 C.F.R. pt. 570).² The BOP identified 18 U.S.C. § 3621(b) as authorizing this categorical exercise of discretion, and viewed the promulgation of a categorical rule as permissible under Lopez v. Davis, 531 U.S. 230, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001). Id. at 51213; see also Community Confinement, 70 Fed.Reg. 1659, 1659, 1661 (Jan. 10, 2005) (codified at 28 C.F.R. pt. 570).

The statute Respondent alleges authorized the promulgation of §§ 570.20 and 570.21, 18 U.S.C. § 3621(b), confers qualified discretion on the BOP to designate a prisoner's place of imprisonment. Section 3621(b) provides in relevant 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, ..., considering —

(1) the resources of the facility contemplated;

(2) the nature and circumstances of the offense;

(3) the history and characteristics of the prisoner;

(4) any statement by the court that imposed the sentence —

(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or

(B) recommending a type of penal or correctional facility as appropriate; and

(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28.

In designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to prisoners of high social or economic status. The Bureau may at any time, having regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility to another.

18 U.S.C. § 3621(b).

Section 3624(c), the provision on which Respondent relies for the position that CCC facilities can only be considered as "places of imprisonment" for the last portion of a prisoner's sentence, addresses the BOP's affirmative obligations to a prisoner as the prisoner nears the end of a term of imprisonment. The statute directs

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 relationship between the two statutes and between § 3621(b) and the regulations at issue lie at the core of the dispute before this court.

B. Facts and Procedural History

Wedelstedt pleaded guilty in the Northern District of Texas to one count of interstate transportation of an obscene movie for sale and distribution and one count of conspiracy to defraud the United States by paying a cash bonus to an employee. Wedelstedt was sentenced to thirteen months' imprisonment followed by one year of supervised release. Upon the recommendation of the district court and the government, the BOP placed Wedelstedt at the Federal Prison Camp in Florence.³ Wedelstedt reported to the Florence facility on June 1, 2006. Because of anticipated good-time credit, Wedelstedt's projected release date is May 9, 2007. At a meeting held to establish Wedelstedt's pre-release plan, the BOP told Wedelstedt he would be eligible for transfer to a CCC on April 6, 2007, the date on which thirty-three days, or ten percent, of his sentence would remain.

Wedelstedt filed an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, in the district court for the District of Colorado. He contended the BOP's regulations impermissibly restrict the discretion Congress gave the BOP in 18 U.S.C. § 3621(b) to consider transferring him to a CCC prior to the last ten percent of his sentence.⁴ Respondent asserted the regulations are valid as a permissible exercise of the BOP's discretion under § 3621(b) and § 3624(c). The district court granted the writ and Respondent appealed, again asserting the validity of the BOP regulations.

C. Other Circuits' Precedent and the District Court's Decision

1. Second, Third, and Eighth Circuit Decisions

The district court relied heavily in its decision to grant Wedelstedt's habeas petition on decisions from the Second, Third, and Eighth Circuits. Levine v. Apker, 455 F.3d 71 (2d Cir.2006); Fults v. Sanders, 442 F.3d 1088 (8th Cir.2006); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235 (3d Cir.2005). The Levine, Fults, and Woodall courts each determined that the BOP regulations at 28 C.F.R. §§ 570.20 and 570.21 contradicted the clear and unambiguous congressional intent expressed in 18 U.S.C. § 3621(b). Levine, 455 F.3d at 87; Fults, 442 F.3d at 1092; Woodall, 432 F.3d at 249. Each court interpreted § 3621(b) to clearly and unambiguously require the BOP to consider the five factors set out in § 3621(b)(1)-(5) when making placement and transfer decisions, and interpreted the CCC placement restrictions in § 570.21 as preventing the BOP from fully considering of each of these factors. Levine, 455 F.3d at 87 ("Section 3621(b) establishes clear parameters for the BOP's exercise of discretion in making prison placements and transfers. By sorting prisoners' eligibility for [CCCs] only according to the portion of time served, the BOP has unlawfully excised these parameters from the statute."); Fults, 442 F.3d at 1092 ("[T]he BOP's regulation necessarily conflicts with § 3621(b) by excluding an entire class of inmates — those not serving the final ten percent of their sentences — from the opportunity to be transferred to a CCC."); Woodall, 432 F.3d at 249 ("[W]e are faced with a statute providing that the BOP must consider several factors in CCC placement, and a regulation providing that the agency may not consider those factors in full. The conflict between the regulations and the statute seems unavoidable."). Under Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), these courts ruled the regulations were invalid. Because each court determined § 3621(b) includes a clear assertion of congressional intent, each rejected the BOP's argument that,...