Muniz v. Sabol

United States Court of Appeals
For the First Circuit

Nos. 06-2692, 06-2693

RICHARD MUNIZ,
VICTOR GONZALEZ,

Petitioners, Appellees,

v.

CAROLYN A. SABOL, WARDEN,

Respondent, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Boudin, Chief Judge,

Howard, Circuit Judge,

and O'Toole,* District Judge.

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 Gonzales, appellees, on brief pro se.

*
Of the District of Massachusetts, sitting by designation.
 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.

February 26, 2008
 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 loathe 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

1
CCCs are also referred to as Residential Re-entry Centers (RRCs)
or, more familiarly, "halfway houses." We consider these terms
synonyms for the purposes of this opinion.
2
Wedelstedt v. Wiley, 477 F.3d 1160 (10th Cir. 2007) (2-1
decision); Levine v. Apker, 455 F.3d 71 (2d Cir. 2006)(2-1
decision); Fults v. Sanders, 442 F.3d 1088 (8th Cir. 2006) (2-1
decision); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235 (3d Cir.
2005) (2-1 decision).
3
Amici curiae 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 provided a scholarly and substantial
brief arguing that the BOP violated the Administrative Procedures
Act when it promulgated these regulations. We do not consider the
issue. Because the issue was not joined below, we assume, without
deciding, that the regulations were adopted in accordance with the
APA.

-3-
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 Gonzales 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.

-4-
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); Iacaboni 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

4
We set out the statute in full in the Appendix.
5
See the Appendix for the precise factors. Throughout the opinion,
we refer to the factors in § 3621(b)(1)-(5) as the "five factors."

-5-
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., Iacaboni, 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

-6-
 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-

-7-
entry. We further held that CCCs were "correctional facilit[ies]"

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.

6
The regulations, 28 C.F.R. §§ 570.20-21, are set out in the
Appendix.
7
Section 570.21(b) outlines some exceptions not relevant here.

-8-
 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

8
Under the holding of Richmond, prisoners in the Seventh Circuit
are challenging the 2005 regulations as violative of the APA. See,
e.g., Martins v. Fed. Bureau of Prisons, 2008 U.S. Dist. LEXIS 5022
(W.D. Wisc. Jan. 22, 2008); Belk v. Fed. Bureau of Prisons, 2008
U.S. Dist. LEXIS 5020 (W.D. Wisc. Jan. 22, 2008); Celozzi v. Fed.
Bureau of Prisons, 2007 U.S. Dist. LEXIS 94227 (W.D. Wisc. Dec. 19,
2007); Smith v. Davis, 2006 U.S. Dist. LEXIS 77213 (S.D. Ill. Oct.
23, 2006).

-9-
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)

(citing Goldings, 383 F.3d at 21). We afford no deference to the

district court's grant or denial of habeas relief. Healy v.

Spencer, 453 F.3d 21, 25 (1st Cir. 2006), cert. denied, 127 S. Ct.

1489 (2007).

5. Analysis

We must determine whether the 2005 regulations comport

with the authority and obligations conveyed by section 3621(b). To

do so, we must answer two questions. First: Is the categorical

exercise of discretion through rulemaking permissible in this

context? Second: If so, does the substance of the 2005

regulations comport with statute's intent? The first question

requires us to apply the Supreme Court's decision in Lopez v.

9
Petitioner Muniz had a projected release date of December 24,
2007. The record shows he was considered for CCC placement under
the old policy as directed by the district court. If he has in
fact been released, there is no meaningful relief to be granted to
Appellant Carolyn Sabol, in her official capacity as warden.
10
If this case were moot, we might nevertheless decide the issue as
an appropriate exercise of advisory mandamus. See In re United
States, 426 F.3d 1, 5 (1st Cir. 2005).

-10-
Davis, 531 U.S. 230 (2001), and decide whether a clear expression

of congressional intent forecloses categorical rulemaking. The

second question invokes the Chevron doctrine of agency deference.

The two-step Chevron analysis begins with the statute itself. If

the regulations conflict with the statute, the regulations are

invalid. Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843

n.9 (1984) ("If a court, employing traditional tools of statutory

construction, ascertains that Congress had an intention on the

precise question at issue, that intention is the law and must be

given effect."). If, however, we find the statute ambiguous, we

afford significant deference to the agency's interpretation, and

ask only "whether the agency's answer is based on a permissible

construction of the statute." Id. at 843. Because the Lopez and

Chevron inquiries are interrelated, we examine the statute only

once, with both in mind. We begin with the plain language of the

statute.

a. The Statute

The plain language of the statute contains a grant of

discretion and a command that the BOP consider the five factors

when exercising that discretion. The BOP "shall designate the

place of the prisoner's imprisonment." 18 U.S.C. § 3621(b). The

BOP is provided the discretion to choose "any available penal or

correctional facility that meets minimum standards of health and

habitability . . . that the Bureau determines to be appropriate and

-11-
suitable, considering" the five factors.11 Id. This is a broad

grant of discretion. See Thye v. United States, 109 F.3d 127, 130

(2d Cir. 1997) ("Decisions to place a convicted defendant within a

particular treatment program or a particular facility are decisions

within the sole discretion of the Bureau of Prisons." (internal

quotation marks omitted)). The statute allows that "[t]he Bureau

may, at any time, having regard for the same matters, direct the

transfer" to another facility. Id.

The statute also contains a prohibition on "favoritism

given to prisoners of high social or economic status." The

inclusion of one forbidden factor implies that other factors, not

among the five, might be considered. If the five factors were

exclusive, the prohibition on favoritism would be unnecessary. See

Levine, 455 F.3d at 82 n.6; Cohen v. United States, 151 F.3d 1338,

1343 (11th Cir. 1998) ("[Section 3621(b) gives] the BOP ample room

for judgment by listing a non-exhaustive set of factors for the BOP

to consider and leaving to the BOP what weight to assign to any

particular factor."); Thye, 109 F.3d at 130 (holding it "well

within Bureau's discretion" to consider alienage in placing

11
Three of the factors ("the nature and circumstances of the
offense; . . . the history and characteristics of the prisoner;
[and] any statement by the court that imposed the sentence," 18
U.S.C. §§ 3621(b)(2)-(4)) do seem to require individualized
consideration. In that much we agree with our sister circuits.
See Wedelstedt, 477 F.3d 1168; Levine, 455 F.3d at 85; Fults, 442
F.3d at 1091; Woodall, 432 F.3d at 247. The nature of that
consideration is the crux of the matter.

-12-
inmate). The statute is silent on whether one of the five factors,

or another factor not listed, may for some prisoners or for some

facilities predominate over all others in importance.

Applying Lopez, we discern no clear expression of

congressional intent to foreclose rulemaking. As an initial

matter, the transfer provision in § 3621(b) leaves more to the

BOP's discretion than the assignment provision. But moreover, even

the assignment provision lacks a clear expression of congressional

intent to forbid rulemaking that assists BOP in its individualized

determinations.

The provision of § 3621(b) governing transfers, properly

read, contains near-identical language to the provision the Supreme

Court considered in Lopez. That case considered § 3621(e), which

provides that the period of custody for some prisoners "may be

reduced by the Bureau of Prisons."12 § 3621(e)(2)(B). Lopez held

that this represented a grant of discretion to the BOP, and that

the BOP could prescribe additional requirements through notice-and-

comment rulemaking. 531 U.S. at 241. In other words, "the Bureau

thus has the authority, but not the duty" to reduce the sentence.

Id. The transfer provision at issue in this case contains the same

permissive language: "The Bureau may at any time, having regard for

the same matters, direct the transfer of a prisoner from one penal

12
Specifically, those prisoners who successfully complete a
residential substance abuse treatment program. 18 U.S.C. §
3621(e)(2).

-13-
or correctional facility to another." § 3621(b). We read this

provision differently than our sister circuits. It appears to us

that the phrase "having regard for the same matters" (i.e. the five

factors) applies to any transfer that the Bureau may direct, but

that the statute leaves it to the BOP's discretion whether to

undertake a transfer at all.13 See Woodall, 432 F.3d at 251

(Fuentes, J. dissenting) ("[T]he § 3621(b) factors need not be

considered by the BOP until an inmate is actually considered for a

transfer, and . . . the BOP is not required to consider any inmate

for transfer to a CCC until the lesser of six months or ten percent

of an inmate's sentence remains."); Yip v. Fed. Bureau of Prisons,

363 F. Supp. 2d 548, 552 (E.D.N.Y. 2005).14 The matter does not end

13
Compare the language governing initial assignments: "The [BOP]
shall designate the place of . . . imprisonment. The [BOP] may
designate any available penal or correctional facility . . . ."
Because the mandatory "shall" requires that some place be
designated, the permissive "may" in the second sentence only speaks
to the range of possible choices and does not mean that the BOP
could refuse to designate a facility altogether. In contrast, the
language governing transfers simply states that the BOP "may . . .
direct" the transfers.
14
Fults explicitly comes to the opposite conclusion, but does not
give a reason. "A BOP decision to not transfer an inmate--or, as
in this case, a group of inmates--requires the same consideration
of the § 3621(b) factors as does the decision to transfer an inmate
to a CCC." 442 F.3d at 1092. With respect, we believe that the
BOP's decision to transfer a prisoner to a specific facility is
divided by the statute into two steps: First, the decision,
entirely within the BOP's discretion, of whether to transfer the
prisoner at all; second, once a transfer is under consideration,
the decision which facility is the appropriate one. That second
decision must be made "having regard for" the five factors. If
this were not the case, if declining to authorize a transfer were
covered by the mandatory "shall" in "shall assign," then the BOP

-14-
there, however. According to our analysis, under Lopez even the

assignment provision supports the rulemaking at issue here.

The plain language of the statute contains no explicit

guidance on whether the BOP may facilitate assignments through

categorical exercises of discretion. Other courts have viewed the

conjunctive list of the five factors and the mandatory nature of

the language "shall designate . . . , considering" as foreclosing

the possibility of a categorical exercise of discretion. See

Wedelstedt, 477 F.3d at 1165-66; Levine, 455 F.3d at 80-82; Fults,

442 F.3d at 1091-92; Woodall, 432 F.3d at 245-46. We agree, to a

point. Congress certainly intended that the five factors be

considered in the placement decision. But we do not believe that

this constitutes the clear expression of Congressional intent

required by Lopez to foreclose all rulemaking whatsoever. Even

where a statute requires individualized determinations, "the

decisionmaker has the authority to rely on rulemaking to resolve

certain areas of general applicability unless Congress clearly

expresses an intent to withhold that authority." Lopez, 531 U.S.

at 244 (internal quotation omitted). The statute does require

individualized determinations, but if that were sufficient to

prevent rulemaking altogether, the statement in Lopez would be a

paradox, because it implies that some statutes that require

would never be free to decline a transfer request without
considering the five factors. Congress surely did not intend such
a result.

-15-
individualized determinations nonetheless permit rulemaking.

Something more must be required of Congress, and we see no more

here.

Because the plain language of the statute does not

address "the precise question[s] at issue," we turn to the

statute's legislative history to help resolve the ambiguity. We

provide some context. Section 3621, enacted as part of the

Sentencing Reform Act of 1984, replaced previous statutory language

committing prisoners to the custody of the Attorney General and

granting him discretion to choose the place of confinement. Pub.

L. 98-473, 98 Stat. 2007-08; see also 18 U.S.C. §§ 4082(a)&(b)

-16-
(1984)15, amended by Pub. L. 98-473, § 218(a)(3) (old statutory

scheme).

The other circuits have found the plain language of the

statute dispositive. Wedelstedt, 477 F.3d at 1166-67; Levine, 455

F.3d at 82; Fults, 442 F.3d at 1090; Woodall, 432 F.3d at 248-49.

Consequently, they did not need to pursue other avenues of

statutory construction such as legislative history. But each

majority opinion does go on to examine the legislative history, a

15
Prior to enactment of the Sentencing Reform Act of 1984, the
statute read:
(a) A person convicted of an offense
against the United States shall be committed,
for such term of imprisonment as the court may
direct, to the custody of the Attorney General
of the United States, who shall designate the
place of confinement where the sentence shall
be served.
(b) The Attorney General may designate as
a place of confinement any available,
suitable, and appropriate institution or
facility, whether maintained by the Federal
Government or otherwise, and whether within or
without the judicial district in which the
person was convicted, and may at any time
transfer a person from one place of
confinement to another.
18 U.S.C. § 4082 (a)&(b) (1984). The structure of the earlier
statute lends strength to our conclusion above that the discretion
to order a transfer at all is not cabined by consideration of the
factors. Viewing the old language, it is even more clear that the
transfer language is separate from the mandate "shall designate" in
subsection (a). While the discretionary "may designate" in
subsection (b) is clearly constrained by the requirement "shall
designate" in subsection (a), there is no reason to read the
transfer-or-no-transfer decision as anything but discretionary.
Nor is there any indication from the legislative history discussed
below that Congress intended to change the scope of this discretion
when it changed the statute.

-17-
practice this circuit often follows as well. See Succar v.

Ashcroft, 394 F.3d 8, 31 (1st Cir. 2005) (approving consideration

of legislative history as a check on interpretation of statutory

language). Each opinion cites the same snippet of the legislative

history, either directly or by citing one of the other opinions:

a part of the Senate Judiciary Committee report that was included

with the bill when it was enacted. See Levine, 455 F.3d at 82

(quoting and citing S. Rep. No 98-225, reprinted in 1984

U.S.C.C.A.N. 3182, 3324-25); Woodall, 432 F.3d at 245-46 (same);

see also Wedelstedt, 477 F.3d at 1166 n.7 (citing Levine and

Woodall for the proposition that the legislative history supports

the invalidity of the 2005 regulations); Fults, 442 F.3d at 1092

(finding its view of the plain language "bolstered by the statute's

legislative history as discussed in Woodall."). We set out the

relevant portion of the report in full in the Appendix.

We find this passage to be ambiguous when viewed in the

light of our construction of the statute's plain language. The

passage states that the bill "follows existing law" with regard to

assignments and transfers. S. Rep. No. 98-225, at 141-42 (1983),

reprinted in 1984 U.S.C.C.A.N. 3182, 3324-25. The report does say

that "in determining the availability or suitability of the

facility selected, the Bureau is specifically required to consider

such factors" as the five factors. Id. But even this command is

tempered; the report goes on to say that "by listing factors . . .

-18-
[the committee] does not intend to restrict or limit the Bureau in

the exercise of its existing discretion."

This legislative history just as easily supports our

reading of the statute.16 Nothing in this passage requires

consideration of the five factors for every facility or type of

facility that is ruled out. Nor is there a clear expression of

intent to withhold the authority to make rules of general

applicability. In any event, we find the legislative history

sufficiently ambiguous that we proceed to Chevron's second step.

b. Are the 2005 Regulations a Reasonable
Interpretation of § 3621(b)?

Finding that Congress did not address whether the BOP

could make a categorical exclusion of one type of facility from its

placement decisions, we ask, under the second step of the Chevron

analysis, whether the 2005 regulations are a reasonable

interpretation of the statute. 467 U.S. at 844; see also id. at

843 ("[I]f the statute is silent or ambiguous with respect to the

specific issue, the question for the court is whether the agency's

answer is based on a permissible construction of the statute.").

The 2005 regulations are a reasonable interpretation of

the mandate delivered to the BOP by Congress: Congress has

instructed the BOP to place each prisoner in an appropriate

16
We note that it is a symptom of the general weakness of
legislative history as a clue to legislative intent that even this
small piece of a Senate report seems to shift meaning depending on
the light in which it is viewed.

-19-
facility, considering the five factors. In carrying out that

responsibility, the BOP has made the reasonable determination that

some facilities are simply categorically inappropriate for

prisoners during the first ninety percent of their sentences or for

periods of longer than six months. Neither the substance of that

decision, nor the method the BOP used to codify the decision

represents an unreasonable interpretation of § 3621(b).

The concurring opinion in Goldings predicted that "[e]ven

if the statutory criteria for making assignments and transfers

could be read to guarantee some sort of individualized treatment .

. . BOP would still have the authority to make a categorical rule

excluding some or all CCC placements, except as required for end of

sentence placements governed by § 3624(c)." Goldings, 383 F.3d at

33 (Howard, J., concurring). The concurrence relied on Lopez,

quoting a passage we have already mentioned:

"Even if a statutory scheme requires
individualized determinations . . . the
decisionmaker has the authority to rely on
rulemaking to resolve certain issues of
general applicability unless Congress clearly
expresses an intent to withhold that
authority." [Lopez, 531 U.S. at 243-44]
(quoting American Hosp. Ass'n v. NLRB, 499
U.S. 606, 612, 113 L. Ed. 2d 675, 111 S. Ct.
15395 (1991)). BOP "is not required
continually to revisit 'issues that may be
established fairly and efficiently in a single
rulemaking proceeding.'" Id. (quoting Heckler
v. Campbell, 461 U.S. 458, 467, 76 L. Ed. 2d
66, 103 S. Ct. 1952 (1983)).

-20-
Goldings, 383 F.3d at 33 (Howard, J., concurring). The first

question is whether this statement in Lopez applies. It does.

On the one hand, Lopez is particularly instructive

because it treats the authority of the same agency, the BOP, to

promulgate regulations under another part of the same statutory

scheme, § 3621(e). On the other hand, that part of the statute

lists no factors for consideration. The other circuits to have

considered the question find Lopez inapplicable to § 3621(b); they

reason that § 3621(b) is different because inclusion of the factors

as a conjunctive list demonstrates clear congressional intent that

all of the factors be considered. Wedelstedt, 477 F.3d 1160, 1167-

68; Levine, 455 F.3d at 85; Fults, 442 F.3d at 1091; Woodall, 432

F.3d at 246-47. As previously discussed, we do not think this is

the sort of clear expression of intent required.

The second question is whether the substance of the 2005

regulations is an acceptable implementation of the governing

statute. It is. Two facts compel us to that conclusion.

First, the decision with which the BOP is charged in the

statute is not the one being made by the 2005 regulations. If §

3621(b) were directed solely at the determination of whether a CCC

or a traditional prison facility was the right type of facility, we

might come to a different result. But § 3621 requires BOP to

consider the five factors in a much broader context: deciding what

specific facility is the right one to house each prisoner. The

-21-
question whether a CCC is an appropriate facility for any prisoner

during the first ninety percent of a term is a subset of that

question, and deciding it on a categorical basis is not the same as

deciding the final issue of placement on a categorical basis.17

This, then, is nothing more than a background rule of general

applicability, promulgated in the interest of efficiency and

uniformity, that serves to focus the individualized consideration

Congress required. This is precisely what Lopez envisioned. "The

Bureau is not required continually to revisit 'issues that may be

established fairly and efficiently in a single rulemaking

proceeding.'" Lopez, 531 U.S. at 244 (quoting Heckler, 461 U.S. at

467).

Second, the 2005 regulations were promulgated with

explicit reference to some of the five factors. See Community

Confinement, Proposed Rule, 69 Fed. Reg. at 51,214 (discussing

facility resources and policy statements of the Sentencing

Commission). The proposed rule also expressly relied on the

importance of deterring future crime, which is one of the stated

goals of sentencing, as well as § 3621(b)'s prohibition on treating

inmates differently based on wealth or social status. Id. at

51,214-15. Under the statute, other factors may be considered and

17
We emphasize that were the regulations to leave little or no room
for the operation of the individualized assessment implied by
Congress, we would regard that as contrary to intent of the
statute.

-22-
may even be dispositive. "When experience or common sense shows

that the housing decision will be the same no matter what the

evidence regarding a particular factor, the BOP need not go through

the motions of collecting the evidence and noting that the one

factor cannot outweigh the others in the particular circumstance."

Wedelstedt, 477 F.3d at 1171 (Hartz, J., dissenting); see also

Levine, 455 F.3d 71 at 91 (Raggi, J., dissenting) ("The BOP might

reasonably conclude, as it implicitly did here, that, regardless of

an individual prisoner's offense, history, and personal

characteristics, or any statement made by a sentencing judge, other

factors . . . combine to warrant a categorical rule excluding CCC

facilities from consideration in general § 3621(b) designations.")

If Congress had limited consideration to only these five factors,

or had laid out how the factors ought to be balanced, we would face

a different question. Pragmatically, we cannot imagine that

Congress intended by its silence to make pointless work for the

BOP.

We note also that the BOP has other policies that deny

CCC placement in other circumstances. See Federal Bureau of

Prisons, Program Statement 7310.04, Community Corrections Center

(CCC) Utilization and Transfer Procedure at 10 (Dec. 16, 1998),

available at http://bop.gov/DataSource/execute/dsPolicyLoc (last

visited Feb. 20, 2008). Those policies restrict the transfer of

inmates who are assigned a "Sex Offender" or "Deportable Alien"

-23-
"Public Safety Factor" or "who require inpatient medical,

psychological, or psychiatric treatment," among others.18 Id.

These policies are entitled to less deference under Chevron,

because they are merely interpretive rules and were not promulgated

under the APA's notice-and-comment provisions. But they have

nevertheless been upheld. See Fox v. Lappin, 409 F. Supp. 2d 79,

92 (D. Mass 2006) (upholding policy of denying transfer to CCC to

those with "Sex Offender" Public Safety Factor). We believe this

is in accordance with the BOP's ability to make rules of general

applicability that guide its decisions.

Stepping back, we recognize that the dispute is in part

over the BOP's substantive decision to restrict CCC availability.

Assuming the decision itself is not contrary to the wishes of

Congress, the BOP will one way or the other be able to carry it

out.19 The 2005 regulations at least have the advantage of

transparency. There is no dispute that, as long as the BOP

"considers" the five factors, it has virtually unlimited discretion

to place inmates wherever it deems appropriate. The BOP could

simply consider the five factors in each case but decide, in each

case, not to place each inmate in a CCC. At the very least, the

18
These policies say that such prisoners are not "ordinarily"
eligible for CCC placement. This might appear to provide
exceptions that are ostensibly lacking in the 2005 regulations.
But this does not change our analysis.
19
Of course, if the decision to restrict CCC placements is
unacceptable to Congress, it can easily rectify the discrepancy.

-24-
2005 regulations have the advantage of being consistent, formal

rules of general applicability that can be attacked under the APA

for the circumstances of their promulgation and can be discussed as

matters of public policy in the elected branches. Similarly, even

courts striking down the 2005 regulations seem to acknowledge that

the BOP could close the CCCs entirely. See Levine, 455 F.3d at 82.

That such a result would frustrate petitioners' desires is obvious.

Our holding is a narrow one of statutory interpretation.

We emphasize that we express no opinion about the validity of the

2005 regulations under the APA. Neither do we pass any judgment on

the wisdom of the decision to limit CCC placements. We recognize

that sentencing discretion is crucial to district court judges, and

urge and expect the BOP to be sensitive to this in its

policymaking.

Because the individualized consideration of the five

factors mandated by 18 U.S.C. § 3621(b) is directed at the overall

placement decision, and because the question of the appropriateness

of CCCs for inmates during the first ninety percent of their

sentences is an issue of general applicability within the scope of

Lopez, the 2005 regulations are a reasonable exercise of the Bureau

of Prisons' discretion in carrying out its duties under 18 U.S.C.

§ 3621(b). The plain language and legislative history are silent

on whether such a policy would contradict the statute, and the

-25-
BOP's construction of its duties here is reasonable. The decision

below is reversed.

-26-
 APPENDIX

18 U.S.C. § 3621 Imprisonment of a convicted person, Subsection (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,

whether maintained by the Federal Government or otherwise and

whether within or without the judicial district in which the person

was convicted, that the Bureau determines to be appropriate and

suitable, 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

-27-
regard for the same matters, direct the transfer of a prisoner from

one penal or correctional facility to another. The Bureau shall

make available appropriate substance abuse treatment for each

prisoner the Bureau determines has a treatable condition of

substance addiction or abuse.

28 C.F.R. §§ 570.20-21

§ 570.20 What is the purpose of this subpart?

(a) This subpart provides the Bureau of Prisons' (Bureau)

categorical exercise of discretion for designating inmates to

community confinement. The Bureau designates 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.

(b) As discussed in this subpart, the term "community

confinement" includes Community Corrections Centers (CCC) (also

known as "halfway houses") and home confinement.

§ 570.21 When will the Bureau designate inmates to community

confinement?

(a) The Bureau will designate 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-
 (b) We may exceed these time-frames only when specific

Bureau programs allow greater periods of community confinement, as

provided by separate statutory authority (for example, residential

substance abuse treatment program (18 U.S.C. 3621(e)(2)(A)), or

shock incarceration program (18 U.S.C. 4046(c)).

S. Rep 98-225, at 141-21:

SECTION 3621. IMPRISONMENT OF A CONVICTED PERSON

This section is derived from existing law.

Proposed 18 U.S.C. 3621(a) is derived from 18 U.S.C.

4082(a) except that the new provision places custody of federal

prisoners directly in the Bureau of Prisons rather than in the

Attorney General. This change is not intended to affect the

authority of the Bureau of Prisons with regard to such matters as

place of confinement of prisoners, transfers of prisoners, and

correctional programs, but is designed only to simplify the

administration of the prison system. Direct custody of prisoners

will be in the Bureau of Prisons, but the Director of the Bureau of

Prisons will remain subject to appointment by the Attorney General

and subject to his direction. In addition, it is made clear that

the custody of the Bureau of Prisons continues until the expiration

of the term of imprisonment, or until release at the expiration of

-29-
that term less any time credited toward service of sentence

pursuant to section 3624(b).

Proposed 18 U.S.C. 3621 (b) follows existing law in

providing that the authority to designate the place of confinement

for federal prisoners rests in the Bureau of Prisons. The

designated penal or correctional facility need not be in the

judicial district in which the prisoner was convicted and need not

be maintained by the federal government. Existing law provides

that the Bureau may designate a place of confinement that is

available, appropriate, and suitable. Section 3621(b) continues

that discretionary authority with a new requirement that the

facility meet minimum standards of health and habitability

established by the Bureau of Prisons. In determining the

availability or suitability of the facility selected, the Bureau is

specifically required to consider such factors as the resources of

the facility considered, the nature and circumstances of the

offense, the history and characteristics of the prisoner, the

statements made by the sentencing court concerning the purposes for

imprisonment in a particular case, any recommendations as to type

of facility made by the court, and any pertinent policy statements

issued by the Sentencing Commission pursuant to proposed 28

U.S.C.994(a)(2). After considering these factors, the Bureau of

Prisons may designate the place of imprisonment in an appropriate

-30-
type of facility, or may transfer the offender to another

appropriate facility.

In the absence of unusual circumstances, federal courts

currently will not review a decision as to the place of

confinement. The committee, by listing factors for the Bureau to

consider in determining the appropriateness or suitability of any

available facility, does not intend to restrict or limit the Bureau

in the exercise of its existing discretion so long as the facility

meets the minimum standards of health and habitability of the

Bureau, but intends simple to set forth the appropriate factors

that the Bureau should consider in making the designations.

-31-