Brown v. Hogsten , 214 F. App'x 124 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
1-30-2007
Brown v. Hogsten
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3521
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Recommended Citation
"Brown v. Hogsten" (2007). 2007 Decisions. Paper 1728.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-3521
________________
ROBERT BROWN,
Appellant
v.
WARDEN K. HOGSTEN,
BUREAU OF PRISONS
_____________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civil No. 06-cv-0262)
District Judge: Malcolm Muir
_____________________
Submitted Under Third Circuit LAR 34.1(a)
January 10, 2007
Before: RENDELL, COWEN and VAN ANTWERPEN, Circuit Judges.
(Filed: January 30, 3007 )
________________
OPINION OF THE COURT
________________
PER CURIAM
Robert Brown appeals the denial of his habeas corpus petition by the United States
District Court for the Middle District of Pennsylvania. For the reasons below, we will
affirm the District Court’s order.
On March 30, 2000, Brown was sentenced in the United States District Court for
the Southern District of New York to a 240 month term of imprisonment, a three year
term of supervision, and a felony assessment of $100.00, for conspiracy to commit
murder in violation of 18 U.S.C. § 1959 (a)(5). Brown’s projected date of release from
prison is July 13, 2016, via Good Conduct Time release. On February 3, 2006, Brown
filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. In the petition,
Brown argued that his continued confinement in prison violated a liberty interest because
he should be released to a community correctional center (CCC) to serve the remainder of
his sentence. The District Court denied the habeas petition. Brown timely appeals.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary
review over the District Court’s legal conclusions. See Cradle v. United States, 290 F.3d
536, 538 (3d Cir. 2002). Brown argues that he is eligible for immediate transfer to a CCC
pursuant to 18 U.S.C. § 3621(b) and this court’s recent decision in Woodall v. Federal
Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005). The District Court concluded that a
transfer to a CCC at this time would be premature.
The Bureau of Prisons (BOP) has the authority under § 3621(b) to determine the
location of an inmate’s imprisonment. The statute not only grants the BOP placement
authority, but also lists factors for consideration in making placement and transfer
determinations:
(b) Place of imprisonment. The Bureau of Prisons shall
designate the place of the prisoner’s imprisonment. The
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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 regard for the same matters, direct the
transfer of a prisoner from one penal or correctional facility to
another.
18 U.S.C. § 3621(b). However, the grant of authority in § 3621(b) must be read in
conjunction with § 3624(c), which obligates the BOP to prepare prisoners for community
re-entry by, inter alia, placing them in community confinement:
(c) Pre-release custody. 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, or 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
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confinement.
18 U.S.C. § 3624(c).
In Woodall, we held that the BOP’s regulations1 regarding placement in a CCC
were invalid because they
do not allow the BOP to consider the nature and
circumstances of an inmate’s offense, his or her history and
pertinent characteristics, or most importantly, any statement
by the sentencing court concerning a placement
recommendation and the purposes for the sentence. And yet,
according to the text and history of § 3621, these factors must
be taken into account. The regulations are invalid because the
BOP may not categorically remove its ability to consider the
explicit factors set forth by Congress in § 3621 (b) for making
placement and transfer determinations.
432 F.3d at 244 (footnote omitted). Therefore, we concluded that “the BOP may transfer
an inmate to a CCC or like facility prior to the last six months or ten percent of his
sentence.” Id. at 251. We reminded the BOP that “[i]n exercising its discretion . . ., the
BOP must consider the factors set forth in § 3621(b).” Id. However, we noted “that the
BOP may assign a prisoner to a CCC does not mean that it must.” Id. Rather, the BOP is
required “to consider – in good faith” whether to transfer an inmate to a CCC. Id. In
making this decision, the BOP should consider all of the factors in § 3621, as well as any
other appropriate factors it routinely considers but without reference to the 2002 and 2005
policies. Id.
1
See 28 C.F.R. §§ 570.20, 570.21.
4
Contrary to Brown’s assertions, Woodall does not require his immediate transfer to
a CCC to serve the remainder of his sentence. Instead, Woodall prescribes the steps the
BOP should take when considering “in good faith” a prisoner’s placement in a CCC. The
District Court correctly held that Brown is not entitled to immediate placement in any
particular facility, including a CCC. See Levine v. Apker, 455 F.3d 71, 80 (2d Cir. 2006).
Brown also argues that the BOP’s application of its regulations violates the ex post
facto clause. This argument is waived because Brown raises it for the first time on
appeal. See Gass v. Virgin Islands Tel. Corp., 311 F.3d 237, 246 (3d Cir. 2002) (“It is
well established that failure to raise an issue in the district court constitutes a waiver of
the argument.”).
Based on the foregoing, we will affirm the order of the District Court.
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