Rodriguez v. Smith

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSE RODRIGUEZ,  No. 07-16014
Petitioner-Appellee, D.C. No.
v.  CV-07-00190-LJO/
DENNIS SMITH, Warden, DLB
Respondent-Appellant.
 OPINION

Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted
March 11, 2008—San Francisco, California

Filed September 4, 2008

Before: Procter Hug, Jr., Pamela Ann Rymer, and
Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Rawlinson;
Dissent by Judge Rymer

12255
 RODRIGUEZ v. SMITH 12257

COUNSEL

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

Stephen R. Sady, Portland, Oregon, for petitioner-appellee
Jose Rodriguez.
12258 RODRIGUEZ v. SMITH
OPINION

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 trans-
ferring 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 dis-
trict 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 Con-
gress’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 regu-
lations that prevented him from being immediately considered
1
Although the parties both agree that RRCs were formally referred to
as Community Correction Centers (CCCs) and are commonly known as
“halfway houses,” Smith refers to them as RRCs and Rodriguez uses the
term CCC. This opinion will use the term RRC throughout.
 RODRIGUEZ v. SMITH 12259
for RRC placement. The petition asserted that the BOP’s pol-
icy 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 exer-
cise 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 Recommenda-
tion 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 desig-
nate the place of an inmate’s imprisonment.2 Prior to Decem-
2
Section 3621(b) provides:
§ 3621 Imprisonment of a convicted person
...
(b) Place of imprisonment.—The Bureau of Prisons shall desig-
nate 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 other-
wise and whether within or without the judicial district in which
12260 RODRIGUEZ v. SMITH
ber 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 under-
standing that this section allowed placement in community
confinement only during the last ten percent of the prison sen-
tence being served. Id.

Accordingly, effective December 20, 2002, the BOP
changed its procedure to limit the time during which an

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 facil-
ity 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 pris-
oners 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. The
Bureau shall make available appropriate substance abuse treat-
ment for each prisoner the Bureau determines has a treatable con-
dition of substance addiction or abuse.
18 U.S.C. § 3621(b).
 RODRIGUEZ v. SMITH 12261
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 Fed-
eral 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 author-
ity 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’ commu-
nity 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.
3
Section 570.20 provides:
§ 570.20 What is the purpose of this subpart?
(a) This subpart provides the Bureau of Prisons’ (Bureau) cate-
gorical exercise of discretion for designating inmates to commu-
nity 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 confine-
ment” includes Community Corrections Centers (CCC) (also
known as “halfway houses”) and home confinement.
28 C.F.R. § 570.20.
Section 570.21 provides:
12262 RODRIGUEZ v. SMITH
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, 571 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 lan-
guage of 18 U.S.C. § 3621(b), and the BOP regulations estab-
lishing 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

§ 570.21 When will the Bureau designate inmates to commu-
nity confinement?
(a) The Bureau will designate inmates to community confine-
ment only as part of pre-release custody and programming, dur-
ing the last ten percent of the prison sentence being served, not
to exceed six months.
(b) We may exceed these time-frames only when specific
Bureau programs allow greater periods of community confine-
ment, 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)).
28 C.F.R. § 570.21.
 RODRIGUEZ v. SMITH 12263
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 . . .” 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 unam-
biguously expressed intent of Congress.” Chevron, 467 U.S.
at 842-43 (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.

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 regu-
lations to impose exactly this limitation is not only a reason-
able 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
12264 RODRIGUEZ v. SMITH
BOP’s interpretations (as expressed in 28 C.F.R. §§ 570.20
and 570.21).

[1] 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 habitabil-
ity established by the Bureau, whether maintained by the Fed-
eral 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) (empha-
ses added).

[2] 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

[3] 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 practi-
cable, 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 placing an inmate in community confine-
ment or a similar pre-release alternative toward the end of the
inmate’s prison term, it does not interfere with the BOP’s dis-
4
Section 3624(c) was amended effective April 9, 2008, slightly reword-
ing the affirmative duty of the BOP to ensure to the extent practicable the
release of a prisoner during the final months of the prisoner’s term. The
statutory amendment does not affect this opinion.
 RODRIGUEZ v. SMITH 12265
cretionary authority to consider such placement prior to the
last ten percent of the prison term.

As noted, a majority of the other circuit courts that have
considered this issue have concluded that the BOP’s interpre-
tation of § 3624(c) is misplaced. See Wedelstedt, 477 F.3d at
1166 (“Although § 3624(c) surely imposes an affirmative
obligation on the BOP, whenever practicable, to place an
inmate in a CCC or other form of community confinement as
the inmate’s release date nears, § 3624(c) has no bearing on
whether a CCC may be considered as a place of imprisonment
at some earlier point in a prisoner’s period of incarceration.”)
(citations omitted); see also Woodall, 432 F.3d at 250; Gol-
dings, 383 F.3d at 24; Elwood, 386 F.3d at 845-47.5
5
In support of his position that § 3624(c) limits placement into RRCs,
Smith invokes our decision in United States v. Latimer, 991 F.2d 1509,
1514-15 (9th Cir. 1993), for the proposition that “[n]othing in § 3621(b)
requires the BOP to recognize an RRC as an acceptable substitute for a
term of imprisonment and [we] would be going against the Latimer ruling
if [we] were to hold that RRCs were generally intended, or even permissi-
ble, places for serving a sentence of imprisonment.” In Latimer, we held
that based on the differentiation of detention in community treatment cen-
ters and incarceration in prison in various sections of the United States
Sentencing Guidelines, the defendant’s confinement in a community treat-
ment center did not constitute imprisonment for purposes of calculating
his criminal history score under Section 4A1.2(e)(1). Latimer, 991 F.2d at
1514. In reaching this conclusion, we noted that the Commission had not
“clearly said whether confinement in a community treatment center quali-
fies as incarceration,” and relied upon the rule of lenity as further support
for our reading of the Guidelines, noting that the question would deter-
mine whether the defendant would be required to spend “an additional 15
years of his life behind bars.” Id.
More recently, we ruled that placement in a Pre-Release Center did not
constitute imprisonment under 18 U.S.C. § 3624(e), and therefore did not
toll the defendant’s supervisory release period. United States v. Sullivan,
504 F.3d 969, 971-72 (9th Cir. 2007); see also Reno v. Koray, 515 U.S.
50, 63-65 (1995) (holding that time spent by prisoner at a community
treatment center while “released on bail” was not “official detention”)
(internal quotation marks omitted). However, in Latimer, our holding was
limited to Section 4A1.2 of the Sentencing Guidelines to calculate the
12266 RODRIGUEZ v. SMITH
[4] Section 3621(b) specifically provides that the BOP has
discretion to place an inmate into “any available penal or cor-
rectional facility” and to “direct the transfer of an inmate from
one penal or correctional facility to another” “at any time.” 18
U.S.C. § 3621(b). In contrast, the plain language of § 3624(c)
addresses the separate and unrelated authority and obligation
to place inmates into RRCs during the last ten percent of their
sentences. Thus, we agree with the Tenth Circuit’s conclusion
in Wedelstedt that Ҥ 3624(b) has no bearing on whether
§§ 570.20 and 570.21 are consistent with the § 3621(b) statu-
tory scheme for BOP placement and transfer determinations.”
477 F.3d at 1166.

[5] Stripped of the attempted link to § 3624(c), Smith’s
contention that the BOP’s temporal restriction on RRC place-
ment comports with § 3621(b) is singularly unpersuasive. The
BOP regulations necessarily violate the unambiguously
expressed intent of Congress conveyed in § 3621(b), which

defendant’s criminal history score, see 991 F.2d at 1514, and in Sullivan,
to 18 U.S.C. § 3264(e), to determine tolling of the supervised release
period. See 504 F.3d at 972.
In both cases, an important factor was our recognition that ambiguous
provisions should be interpreted for the benefit of the defendant/releasee.
See Latimer, 991 F.2d at 1514 (applying the rule of lenity to “resolve
ambiguities in favor of the criminal defendant.”); see also Sullivan, 504
F.3d at 972-73 (interpreting § 3264(e) and concluding that the supervised
release period had expired, precluding revocation). These cases offer no
assistance to Smith for two reasons. First, as discussed above, the statutory
provisions in this case are unambiguous. Second, even if the provisions
were ambiguous, the rule of lenity would dictate an interpretation favoring
earlier placement in an RRC.
In any event, the BOP itself has acknowledged that § 3261(b) grants it
the authority to “place offenders sentenced to a term of imprisonment in
[RRCs].” See 69 Fed. Reg. at *51213. Indeed, this discretion to place
inmates into RRCs is the basis for the very BOP regulations Smith seeks
to have upheld in this case. See Levine, 455 F.3d at 82. Thus, a discussion
of whether confinement in an RRC constitutes imprisonment does not
resolve the issue we face.
 RODRIGUEZ v. SMITH 12267
expressly instructs that all placement and transfer determina-
tions take into consideration each of the five factors enumer-
ated in the statute.6 That Congress intended the BOP to apply
each of the factors is evidenced by the invocation of the word
“and” between the fourth and fifth factors. See Wedelstedt,
477 F.3d at 1165 66; see also Hawaiian Telephone Co. v.
Public Utilities Com’n, 827 F.2d 1264, 1273 (9th Cir. 1987)
(noting that use of the conjunctive indicates that all of the
conditions listed must be met).

As aptly stated in Wedelstedt, 477 F.3d at 1116, “[t]he rela-
tionships between the two statutes and between § 3621(b) and
the regulations . . . lie at the core of the dispute . . .”

“18 U.S.C. § 3621(b) . . . gives the agency discretion . . . .
This delegation of discretion, however, is cabined by further
mandatory direction . . . to consider the five factors enumer-
ated in the statute . . .” Id. at 1165 (citation, alteration and
internal quotation marks omitted).

“After considering the language of § 3621(b) and the rela-
tionship between its qualified grant of discretion and
§ 3624(c)’s affirmative obligation,” the Tenth Circuit saw no
conflict between the two statutes. Id. at 1166.

The Tenth Circuit explained that:

The statutory command in § 3621(b) stands alone as
a clear and unambiguous articulation of congressio-
6
The factors the BOP must consider under § 3621(b) are: “(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 pur-
poses for which the sentence to imprisonment was determined to be war-
ranted; or (B) recommending a type of penal or correctional facility as
appropriate; and (5) any pertinent policy statement issued by the Sentenc-
ing Commission pursuant to section 994(a)(2) of title 28.” 18 U.S.C.
§ 3621(b).
12268 RODRIGUEZ v. SMITH
nal intent regarding the process by which the BOP
should make placement and transfer determinations.
Although § 3624(c) surely imposes an affirmative
obligation on the BOP, whenever practicable, to
place an inmate in a CCC or other form of commu-
nity confinement as the inmate’s release date nears,
§ 3624(c) has no bearing on whether a CCC may be
considered as a place of imprisonment at some ear-
lier point in a prisoner’s period of incarceration.

Id. at 1166 (citations omitted); see also Levine, 455 F.3d at 75
(“[T]he combined import of the statutes was to give the BOP
discretion to transfer an inmate to a CCC for a period longer
than six months or ten percent of his sentence, but to oblige
the BOP, where practicable, to transfer inmates to a CCC for
a reasonable part of the last ten percent, not to exceed six
months of his sentence.”) (citations omitted).

The Second Circuit is in accord. See Levine, 455 F.3d at 82
(noting that § 3621(b) authorizes the BOP to “place a prisoner
where it wishes so long as it considers the factors enumerated
. . .”) (citations and emphasis omitted); see also Woodall, 432
F.3d at 245; Fults, 442 F.3d at 1092.

We are persuaded that the BOP regulations conflict with
the provisions of § 3621(b). As the Third Circuit decision
explained: “While the BOP may exercise considerable discre-
tion, it must do so using the factors the Congress has specifi-
cally enumerated.” Woodall, 432 F.3d at 247. We agree with
the Third Circuit that an “unavoidable conflict” exists because
the statute requires the BOP to consider five factors in deter-
mining CCC placement, while the regulation provides that the
enumerated factors will not be fully considered. Id. at 249.
We also join the Third Circuit in its conclusion that the regu-
lations’ construction is not “permissible . . . because they fail
to take into account Congress’s indications that certain indi-
vidualized factors . . . should be considered . . .” Id. (citation
omitted); see also Levine, 455 F.3d at 85 (“Categorical rule-
 RODRIGUEZ v. SMITH 12269
making, like all forms of agency regulation, must be consis-
tent with unambiguous Congressional instructions . . .”);
Fults, 442 F.3d at 1091.

[6] In Muniz, the First Circuit concluded that the five fac-
tors listed in § 3621(b) were not exclusive. Muniz, 517 F.3d
at 35. The First Circuit added that, in its view, “[n]othing 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.” Id. at 38 (emphasis in original).
We agree with the First Circuit that the statute contains no
specific prohibition on rules of general applicability. The
problem, however, is that the rules of general applicability
promulgated by the BOP categorically exclude inmates from
RRC eligibility without considering the mandatory factors
articulated in § 3621(b). Although, as the First Circuit recog-
nized, other factors may be considered, § 3621 and the
accompanying legislative history embody unambiguous Con-
gressional intent that the five factors not be ignored. See 18
U.S.C. § 3621(b); see also S. Rep. No. 98-225, reprinted in
1984 U.S.C.C.A.N. 3182, 3324-25 (“In determining the avail-
able or suitability of the facility selected, the Bureau is specif-
ically 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 pur-
poses for imprisonment in a particular case, any recommenda-
tions as to type of facility made by the court, and any
pertinent policy statements issued by the sentencing commis-
sion . . . After considering these factors, the Bureau of Prisons
may designate the place of imprisonment in an appropriate
type of facility, or may transfer the offender to another appro-
priate facility.”) (emphases added) (footnote reference omit-
ted).

Because the BOP regulations categorically exclude CCC
placement of inmates with more than ten percent of their sen-
12270 RODRIGUEZ v. SMITH
tences remaining, they necessarily fail to apply the mandatory
factors listed in § 3621(b) to those inmates. This failure to
consider the five statutory factors when considering eligibility
for placement in or transfer to an RRC violates Congress’s
clear intent that each of these factors be applied in making
inmate transfer or placement determinations to “any available
penal or correctional facility.” 18 U.S.C. § 3621(b) (emphasis
added).

[7] The Muniz opinion “emphasize[d] that were the regula-
tions to leave little or no room for the opportunity of the indi-
vidualized assessment implied by Congress, we would regard
that as contrary to intent of the statute.” 517 F.3d at 39 n.17.
However, that is precisely what the categorical BOP regula-
tions accomplished - they left “no room for the operation of
the individualized assessment” expressly mandated in
§ 3621(b). Id. We cannot agree with the First Circuit that the
categorical failure to comply with unambiguously expressed
Congressional intent can be rationalized away. Rather, we
agree with the Second, Third, Eighth and Tenth Circuits’ con-
clusions that the BOP regulations cannot be reconciled with
the unambiguous congressional intent expressed in § 3621(b).
See Wedelstedt, 477 F.3d at 1162; Levine, 455 F.3d at 87;
Fults, 442 F.3d at 1091; Woodall, 432 F.3d at 249. Accord-
ingly, the regulations are invalid under Chevron.

B. The Supreme Court’s Ruling in Lopez Does Not
Support the BOP’s Categorical Exercise of Discretion.

Relying on the Supreme Court’s decision in Lopez v. Davis,
531 U.S. 230 (2001), the First Circuit held that “[t]he question
whether a CCC is an appropriate facility for any prisoner dur-
ing the first ninety percent of a term is a subset” of the
broader question of “what specific facility is the right one to
house each prisoner.” Muniz, 517 F.3d at 39. The First Circuit
reasoned that deciding that “subset” “on a categorical basis is
not the same as deciding the final issue of placement on a cat-
egorical basis.” Id. However, this linguistic hairsplitting does
 RODRIGUEZ v. SMITH 12271
not change the fact that the regulations thwart the explicitly
expressed will of Congress.

In Lopez, the Supreme Court upheld a BOP regulation that
categorically excluded inmates convicted of offenses involv-
ing firearms from discretionary early release eligibility under
18 U.S.C. § 3621(e)(2)(B). 531 U.S. at 233. However, the
Supreme Court expressly noted that § 3621(e)(2)(B) did not
require “individualized determinations.” Id. at 243-44. The
Court also emphasized that Congress was silent as to the “pre-
cise question at issue” and a “statutory gap” existed. Id. at
242.

The Court in Lopez pointedly discussed the absence from
the statutory language of any criteria the BOP could use in
applying the statute. Id. In contrast, § 3621(b) provides a list
of five factors, all of which the BOP must consider in deter-
mining prisoner placement. See 18 U.S.C. § 3621(b)(1)-(5).
Moreover, at least three of these factors are inmate-specific.
See id. at § 3621(b)(2)-(4) (calling for consideration of “(2)
the nature and circumstances of the offense; (3) the history
and characteristics of the prisoner; [and] (4) any statement by
the court that imposed the sentence . . .). Thus, unlike the stat-
ute in Lopez, the BOP is not left without any guidance on how
to apply the statute.

We echo the observations made by the Tenth Circuit:

Lopez makes clear . . . that an agency’s authority to
promulgate categorical rules is limited by clear con-
gressional intent to the contrary. In other words,
Lopez applies only when Congress has not spoken to
the precise issue and the statute contains a gap. The
Lopez Court was careful to state that 18 U.S.C.
§ 3621(e)(2)(B) . . . did not identify any criteria for
the BOP to use . . . Section 3621(b), in contrast, enu-
merates five factors, including three that are specific
to the individual prisoner . . .
12272 RODRIGUEZ v. SMITH
Wedelstadt, 477 F.3d at 1168 (citations omitted); see also
Levine, 455 F.3d at 86; Fults, 442 F.3d at 1091; Woodall, 432
F.3d at 247 (noting that “sentencing recommendations and
other individual factors . . . are not generally applicable[,]” as
was the case in Lopez, where the only factor at issue was use
of a firearm during the crime of conviction. “Moreover, Con-
gress did appear to express intent to withhold from the BOP
the authority to make CCC placements without the guidance
of the statutory factors.”) (emphasis in the original).

Like the majority of our sister circuits that have considered
this argument, we are not persuaded that Lopez supports the
BOP’s categorical exercise of discretion when administering
§ 3621(b).

Finally, we are not convinced that reference to some of the
factors in the BOP regulations translates into compliance with
the statutory command contained in § 3621(b). See Muniz,
517 F.3d at 39. As the Tenth Circuit astutely remarked:

The BOP cannot validate this otherwise invalid regu-
lation by claiming to have categorically considered
the five statutory factors during the rulemaking pro-
cess. The individualized nature of three of the five
factors - the nature of the prisoner’s offense, the pris-
oner’s history and characteristics, and the sentencing
judge’s statement - made such consideration impos-
sible.

Wedelstadt, 477 F.3d at 1168 (citing Fults, 442 F.3d at 1092);
see also Woodall, 432 F.3d at 248.

IV. CONCLUSION

The BOP’s regulations conflict with the plain language of
18 U.S.C. § 3621(b) as to when an inmate may be considered
for initial placement in or transfer to an RRC. We therefore
AFFIRM the district court’s order granting the writ of habeas
 RODRIGUEZ v. SMITH 12273
corpus ordering the BOP to promptly consider Rodriguez for
transfer to an RRC without reference to 28 C.F.R. §§ 570.20
and 570.21.

AFFIRMED.

RYMER, Circuit Judge, dissenting:

While I understand joining the parade of courts to decide
this issue, I would reverse for the reasons stated in Muniz v.
Sabol, 517 F.3d 29, 31 (1st Cir. 2008), and in Judge Raggi’s
well-reasoned dissent in Levine v. Apker, 455 F.3d 71, 87 (2d
Cir. 2006).