Opinion
03 CV 3220 (ILG)
November 6, 2003
MEMORANDUM AND ORDER
On March 14, 2002, John Cioffoletti (the petitioner), was sentenced to a term of imprisonment of 24 months, the Court having downwardly departed pursuant to U.S.S.G. § 5H1.6 from a guideline range of 51-63 months. A three year term of supervised release was directed to follow. A recommendation was made that the Bureau of Prisons (BOP) place him in a shock incarceration program in accordance with 18 U.S.C. § 4046. That recommendation was rejected by the BOP for the reason that his history of steady employment made that program inappropriate. The government did not oppose his application to be permitted to voluntarily surrender on or before May 6th, 2002, to the facility to which he would be designated and it was granted. On May 6th, he surrendered to the Satellite Camp at FCI Otisville.
Consistent with the practice, long observed, of allowing eligible inmates to serve up to the last six months of their sentence in a Community Correction Center (CCC) regardless of the term of that sentence, the petitioner's Unit Manager, on November 14th, 2002, recommended in writing that he be permitted to serve the last 5-6 months of his sentence in a CCC.
In a Memorandum Opinion for the Deputy Attorney General dated December 13th, 2002, M. Edward Whelan III, Principal Deputy Assistant Attorney General, Office of Legal Counsel (OLC), concluded that "When a federal offender receives a Zone C or Zone D sentence of imprisonment, section 3621 and section 3622 of title 18 do not give BOP general authority to place the offender in community confinement from the outset of his sentence. Nor do they give BOP general authority to transfer him from prison to community confinement at any time BOP chooses during the course of his sentence," The justification for his conclusion is his opinion that the statutory authority of the BOP to implement sentences of imprisonment must be congruent with the United States Sentencing Guidelines, more specifically, § 5C1.1(d)(2) and that community confinement is not imprisonment as prescribed in that guideline. Stating the reasoning upon which the opinion is bottomed as succinctly and clearly as I can, it is as follows: U.S.S.G. § 5C1.1(d)(2) provides that the minimum term of a Zone C sentence, i.e., one for an offense level of 11 or 12, "may be satisfied by —
(1) a sentence of imprisonment; or
(2) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention . . . provided that at least one-half of the minimum term is satisfied by imprisonment."
The OLC's reading of that guideline is that "community confinement" is not "imprisonment." If, for example, a Zone C sentence of imprisonment for 8 months is imposed by a judge who recommends that the entire sentence be served in a CCC. it would be unlawful for the BOP to adopt that recommendation.
One week after the issuance of that Memorandum, on December 20th, 2002, the then Director of the BOP sent her own memorandum to federal judges informing them that under a new BOP policy "defendants sentenced thereafter to a term of imprisonment would never be committed directly to a CCC regardless of the sentencing judges' recommendation. That Memorandum gave notice that the new policy will be applied prospectively, except that inmates designated to a CCC who, as of December 16th, 2002, had more than 150 days remaining to serve on their prison terms, will be re-designated to a prison. The Memorandum provided no rationale for applying the new policy retroactively to inmates having more than 150 days to serve nor was one offered by the government when asked during the argument of the motion described hereafter.
On December 30th, 2002, the petitioner was advised in a Memorandum from Respondent Menifee, the Warden of FCI Otisville, that CCC designations would be limited to the last 10% of an inmate's term, not to exceed six months. That Memorandum was obviously in response to the OLC's Memorandum which, in turn, reflected what it believed to be mandated by 18 U.S.C. § 3624(C). That statute, captioned "Pre-ReleaseCustody" provides in relevant part that "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. The authority provided by this subsection may be used to place a prisoner in home confinement." (emphasis added, the significance of which will be discussed below).
That Memorandum, in essence, advised the petitioner that he would not be released to a CCC in July, 2003, as recommended by his Unit Manager, but that he would have to wait instead to November, 2003, which would be 2 months (10% of 24 months) before the expiration of his term.
On July 1st, 2003, the petitioner obtained an Order directing the defendants to show cause why an Order should not be issued pursuant to Rule 65, Fed.R.Civ.P., compelling the defendants to disregard the "new so-called 10% Rule" and to immediately determine his eligibility for pre-release designation to a CCC in accordance with the pre-December 20th, 2002 policies and practices of the Bureau of Prisons.
The relief which the petitioner seeks is, he claims, warranted by a variety of viable and applicable legal bases, namely, 28 U.S.C. § 2255; ex post facto and due process constitutional violations; violation of the Administrative Procedure Act, 5 U.S.C. § 551 et seq.; equitable estoppel; mandamus and declaratory judgment.
DISCUSSION I. THE OLC MEMORANDUM FALLOUT
A spate of litigation followed almost immediately upon the issuance of the OLC Memorandum. The effect (without characterizing it) that Memorandum had upon the lives of those already sentenced will be dramatically portrayed by a brief statement of the facts in just one of many illustrative cases,
Shawna Lyn Culter pleaded guilty to one count of uttering a forged security. Her adjusted offense level fell within "Zone C" of the U.S.S.G. and she faced a sentence of 10 16 months. Shawna was sexually abused by her father at a young age and was diagnosed with Bipolar Disorder. At the time of her sentence and for some time before, she was treated for that condition, had begun working as a member relation specialist at a library network; was saving part of her salary to pay restitution; had become an active member of her church, where she was serving as a mentor to younger members and was participating in various charitable projects. Every indication pointed to a process of turning her life around.
Recognizing and seeking to encourage her progress, the Court fashioned a sentence that combined punishment while simultaneously enabling the continuation of the strides she was making toward rehabilitation. Relying upon a long-standing policy of the Bureau of Prisons honoring judicial recommendations for placement of offenders whose Guidelines fell into Zone C, the Court sentenced Shawna to 12 months imprisonment with a strong recommendation that she be placed in a CCC. The Bureau of Prisons had assured the Court that its recommendation would be followed, and on June 10, 2002, Shawna began serving her sentence in a CCC. Following the issuance of the OLC Memorandum, Shawna, having 174 days left to serve, was notified by the Bureau of Prisons that she would be moved into a federal prison on or before January 27, 2003. The Court's sentence, in reliance upon the Bureau of Prisons' assurance, was designed to permit Shawna to continue with therapy, to continue to work, to continue to participate in church activities and to pay restitution. The promise of Shawna's rehabilitation and the resumption of her place in society by the Bureau of Prisons' implementation of the OLC Memorandum requires no great leap of imagination. See Culter v. United States, 241 F. Supp.2d 19 (D.C.D. Ct. 2003).
Cases in which the facts are similarly if not more compelling are, for example: lacaboni v. United States, 251 F. Supp.2d (D. Ct. Mass. 2003); Ashkenazi y. Attorney General of the United States, (D.C.D. Ct. 2003); Howard v. Attorney General Ashcroft, 248 F. Supp.2d 518 (D. Ct. M.D. La. 2003); Byrd v. Moore, 252 F. Supp.2d 293 (D. Ct. W.D. N.C. 2003); Tipton v. Federal Bureau of Prisons, 2003 WL 21196487 (D.Md. 2003); United States v. Serpa, 251 F. Supp.2d 988 (D. Mass. 2003).
II. THE LEGAL ANALYSIS OF THE OLC MEMORANDUM
The cases cited above, found the conclusion of the OLC Memorandum and the analysis of the statutes upon which that conclusion was based, wanting on a variety of grounds.
Because I find the conclusions reached and the reasoning which led to those conclusions compelling, I adopt and follow them. To do more would be an exercise in creative re-writing and a pretense of originality.
For the reasons extensively discussed in the above cited cases, which are hereby incorporated by reference, the Bureau of Prisons is hereby directed to transfer the petitioner to a Community Corrections Center forthwith.
A more expansive and detailed Memorandum and Order will follow;
SO ORDERED.