MEMORANDUM OPINION AND ORDER

SHIRA SCHEINDLIN, District Judge

Joseph A. Crapanzano, a pro se petitioner moving under 28 U.S.C. § 2241, challenges a change in policy implemented by the Bureau of Prisons ("BOP") which now dictates that an inmate may not serve more than the last ten percent of his sentence, up to a maximum of six months, in a community corrections center ("CCC") (otherwise known as the "10% Rule"). Petitioner seeks injunctive relief pursuant to Federal Rule of Civil Procedure 65 to compel Respondent to immediately make a determination of his eligibility for pre-release designation to a CCC pursuant to the BOP's previous practice of routinely placing inmates in CCC confinement for the last six months of their sentences without regard to the 10% Rule. For the reasons that follow, petitioner's request is granted.

I. BACKGROUND

A. The Conviction and Sentence

Crapanzano was convicted in the United States District Court for the Middle District of Florida of possessing and uttering a forged security in violation of 18 U.S.C. § 513(a), and conspiracy to commit wire and mail fraud in violation of 18 U.S.C. § 371. See Judgment and Commitment Forms, Ex. C to the Declaration of Patrick W. Ward, Attorney Advisor to BOP ("Ward Decl.") On January 6, 2003, Crapanzano was sentenced to two twenty-one month terms of imprisonment, to run concurrently. See id. Crapanzano began serving his sentence on March 27, 2003. See Sentence Monitoring Computation Data, Ex. B to the Ward Decl. He is currently incarcerated at the Federal Prison Camp in Otisville, New York. B. The Change in Policy

Federal law provides for the placement of prisoners in non-prison sites such as CCCs and halfway houses shortly before the conclusion of their sentences to give them an opportunity to adjust to the community before release. Such "back-end entry" is governed by 18 U.S.C. § 3624(c), enacted in 1984, which provides that placement in this type of pre-release custody may not exceed six months or the last ten percent of a prisoner's sentence, whichever is less. Prior to December 2002, the BOP typically placed non-violent inmates in CCCs for the last six months of their sentences regardless of the length of their sentences. See Program Statement 7310.03 (12/98) ¶ 5 ("[T]he Bureau is not restricted by § 3624(c) in designating a CCC for an inmate and may place an inmate in a CCC for more than the `last ten percentum of the term,' or more than six months, if appropriate."), Ex. D to the Declaration of John P. Cronan, Assistant United States Attorney ("Cronan Decl."). This practice ended in December 2002, in response to guidance from the United States Department of Justice's Office of Legal Counsel ("OLC").

On December 13, 2002, the OLC issued a Memorandum Opinion for the Deputy Attorney General ("OLC Opinion") advising the BOP that it must comply with section 3624(c) when placing prisoners in pre-release custody.

Your office has advised us that BOP, in exercising its authority under section 3624(c), has sometimes not abided by the time limitation set forth in that section. The authority conferred under section 3624(c) to transfer a prisoner to a non-prison site is clearly limited to a period "not to exceed six months, of the last 10 per centum of the term to be served," 18 U.S.C. § 3624, and we see no basis for disregarding this time limitation.

OLC Opinion at 6 n. 6, Ex. A to the Cronan Decl. On December 16, 2002, the Deputy Attorney General forwarded the OLC Opinion to Kathleen Hawk Sawyer, Director of BOP, with a memorandum stating,

while BOP does have limited statutory authority in 18 U.S.C. § 3624(c) to transfer an offender to a CCC prior to his release so as to "afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community," there are firm restrictions on such transfers. Specifically, the transfer may not exceed the lesser of (i) the last ten percent of the sentence imposed on the offender, i.e., the period of time in which the offender was committed to the custody of the BOP, or (ii) six months. The OLC opinion concludes that there are no bases for disregarding these time limitations.

12/16/02 Memorandum, Ex. B to the Cronan Decl., at 2 (emphasis in original). In response, the Warden of FCI-Otisville, the Respondent herein, issued a Memorandum for Inmate Population stating that as of December 20, 2002, the BOP has changed its procedures for designating inmates to CCCs.

[The] . . . change which affects most inmates in Bureau custody involves limitations on pre-release CCC designations. Specifically, pre-release CCC designations are now limited to the last 10% of an inmate's prison term to be served, not to exceed six months. This limitation complies with 18 U.S.C. § 3624(c).

12/30/02 Memorandum from Fredrick Menifee, Ex. C to the Cronan Decl.

C. The Effect on Petitioner

Crapanzano's projected release date, assuming he receives all good time credit available, is September 15, 2004. See Ex.B to the Ward Decl. Based on this projected release date, Crapanzano's six month date — the earliest date he would have been eligible for a CCC transfer under the pre-December 2002 policy — is March 15, 2004. Under the 10% rule, Crapanzano's transfer to a CCC can occur no sooner than July 23, 2004, over four months later.

Crapanzano argues that this change in policy: (1) relies on an incorrect interpretation of the underlying law; (2) violates the Administrative Procedure Act ("APA") because it was not subject to notice and comment; and (3) is being applied to him retroactively in violation of the Ex Post Facto Clause.

II. DISCUSSION

"[T]he Constitution places limits on the sovereign's ability to use its lawmaking power to modify bargains it has made with its subjects. The basic principle is one that protects not only the rich and powerful, but also the indigent defendant engaged in negotiations that may lead to an acknowledgment of guilt and suitable punishment." Lynce v. Mathis, 519 U.S. 433 (1997). "[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Weaver v. Graham, 450 U.S. 24, 29(1981) (footnote omitted). Furthermore, a law need not impair a "vested right" to violate the Ex Post Facto Clause, as the presence or absence of an "affirmative, enforceable right" is not relevant. Id. at 29-30. What is critical "is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." Id. at 30.

Relying on Weaver's emphasis on "fair notice," several circuit courts have concluded that the Ex Post Facto Clause applies to administrative rules that purport to correct or clarify a misapplied existing law. However, to implicate the Ex Post Facto Clause, the administrative rules in issue must have the effect of substantive law and not be merely interpretative. Here, the new policy is substantive because it circumscribes the BOP's discretion, under 18 U.S.C. § 362l (b), to place a prisoner in CCC confinement at any point during his sentence so long as the period of CCC confinement does not exceed six months in back-end placements. See Cato v. Menifee, No. 03 Civ. 5795, 2003 WL 22725524, at *5 n. 2 (S.D.N.Y. Nov. 20, 2003) ("The new policy is legislative or substantive because it essentially re-writes section 3621(b) and substantively changes the law by providing that community confinement is not `imprisonment' and that a CCC is not a `penal or correctional facility."'); cf. Ashkenazi v. Attorney General of the United States, 246 F. Supp.2d 1, 6 n. 9 (D.D.C.) (finding change in BOP's policy regarding front-end placement into CCCs to have "the force of law" and therefore "equivalent to new legislation for purposes of the Ex Post Facto Clause"), vacated as moot, 346 F.3d 191 (D.C. Cir. 2003). Accordingly, the following cases provide ample support to conclude that application of the BOP's new policy to Crapanzano violates the Ex Post Facto Clause.

Knuck v. Wainwright, 759 F.2d 856, 858 (11th Cir. 1985), addressed a change in the method of calculating gain time for prisoners. Prior to 1979, the Florida Department of Corrections ("D.O.C.") consistently awarded gain time on a lump sum basis, when a prisoner first entered the prison system, even though the legislature added the words "on a monthly basis, as earned" to the Florida gain time statute in 1976. Then, in 1979, the D.O.C. determined that the lump sum method was in error and re-calculated defendant's gain time based on the number of days actually served. See id. This resulted in a loss to petitioner of approximately one year's worth of gain time. Respondent argued that because the lump sum method was contrary to the statute, the change in calculation was not a change in the law and therefore did not implicate the Ex Post Facto Clause. See id. The court disagreed, noting that petitioner "had over 10 years notice through the established practice and regulations of the D.O.C. that he would be awarded lump sum gain time." Id. at 859. Consequently, the court held that recalculation of petitioner's gain time under the new interpretation of the gain time statute violated the Ex Post Facto Clause. See id.

A similar situation was presented in Love v. C.J. Fitzharris, 460 F.2d 382 (9th Cir. 1972), vacated as moot, 409 U.S. 1100 (1973). There, the California State Department of Corrections received an opinion from the Attorney General that reinterpreted the parole eligibility provisions with respect to narcotics offenders sentenced to consecutive terms of imprisonment. See 460 F.2d at 384. The issue was whether a change in parole eligibility brought about by administrative fiat, rather than legislative action, violated the Ex Post Facto Clause. The court found that it did, stating as follows:

[T]he interpretation of the relationship between the statutes placed upon them by the administrative agency charged with their enforcement has the force and effect of law. And, as the District Court pointed out, not only defendants, in contemplating their pleas, but also trial courts, in imposing sentences, are entitled to rely on such administrative interpretations. A new administrative interpretation which subjects the prisoner already sentenced to more severe punishment has the same effect as a new statute lengthening his present term or a new court decision making what was lawful when done a crime; each alters the situation of the accused to his disadvantage, and each is prohibited by the Constitution.

For years, if not decades, the BOP has followed the practice of placing certain prisoners in CCCs for the last six months of their sentences, irrespective of the length of those sentences and without regard to the 10% Rule. This longstanding practice likely influenced petitioner's decision to plead guilty and may have influenced the sentencing judge's determination of the appropriate term of imprisonment. Requiring the petitioner to spend an additional four months in prison (a penal or correctional facility) in effect increases the punishment for the crimes he committed. Therefore, while I would likely find the new policy valid for defendants sentenced on or after December 20, 2002, its application to this petitioner is impermissible under the Ex Post Facto Clause.

III. CONCLUSION

The instant petition is granted.

Accordingly, Respondent and his staff are hereby ordered to reconsider, in good faith and forthwith, petitioner's application for a six-month placement at a CCC, without regard to the 10% Rule. Respondent's counsel is directed to report the results of these proceedings to the Court by April 14, 2004. After reviewing counsel's report, this Court will determine what, if any, further relief is warranted. The Clerk of the Court is directed to close this case.