The opinion of the court was delivered by: Barry Moskowitz, District Judge
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
On September 27, 2002, petitioner Deborah Benton pled guilty to one count of mail fraud in violation of 18 U.S.C. § 1341. At the December 23, 2002, sentencing hearing, the Court determined petitioner's offense level to be 10, thereby falling within Zone C of the United States Sentencing Guidelines. Pursuant to the guidelines, petitioner was sentenced to five months imprisonment and five months of home confinement. The Court recommended that the custodial part of the sentence be served at the Urban Work Camp. Petitioner's self surrender date was set for February 21, 2003.
On December 13, 2002, Deputy Attorney General Larry Thompson was advised, through a memorandum prepared by the Department of Justice's Office of Legal Counsel, that the Bureau of Prisons' ("BOP") long-standing policy of interpreting the term "imprisonment" to encompass community confinement was unlawful. According to the memorandum, U.S.S.G. § 5C1.1 vests only limited authority in the sentencing court to designate an offender to [ Page 2]
community confinement after having sentenced him to a term of imprisonment. Further, the federal circuit courts addressing the issue have uniformly distinguished between "imprisonment" and "community confinement." Therefore, the memorandum concluded that it would be unlawful for a federal district court to order that the custodial portion of a Zone C or D sentence be served through community or home confinement. Moreover, because a community corrections center is not a place of imprisonment, the BOP does not have discretion pursuant to 18 U.S.C. § 3621 (b) to place a Zone C or D offender in community confinement where the sentencing guidelines specify a term of imprisonment.*fn1 According to the memorandum, "the [BOP's] authority to select the place of imprisonment is not the same as the authority to decide whether the offender will be imprisoned." (Emphasis in the original).
By a memorandum dated December 20, 2002, Kathleen Hawk Sawyer, the Director of the Bureau of Prisons, informed federal judges of the BOP's procedural change regarding the direct placement of offenders in community confinement centers. The memorandum stated that effective immediately, the BOP would no longer honor the sentencing judge's recommendation to place inmates in community confinement for the custodial portion of the sentence. In addition, the procedural change would be applied retroactively to those inmates who had been designated to community confinement centers and who, as of December 16, 2002, had more than 150 days remaining on the custodial portion of their sentences. At the time of Benton's sentencing, the Court was not yet aware of the new BOP policy.
On January 23, 2003, petitioner was informed by the BOP that she had been designated to serve the custodial portion of her sentence at FCI Victorville. On February 7, 2003, petitioner filed an application for a preliminary injunction and a petition for writ of habeas corpus, seeking to enjoin the BOP from designating her to FCI Victorville pursuant to the new policy. On February 21, 2003, this Court denied the application for a preliminary injunction, [ Page 3]
stayed petitioner's surrender date and issued an order to show cause why the petition for writ of habeas corpus should not be granted.
Benton attacks the decision of the BOP designating her to a federal correction institution (FCI Victorville). She contends that under 18 U.S.C. § 3621(b), the BOP has discretion to designate her to serve her sentence of imprisonment in community confinement. She relies on the recommendation of the Court that she serve her sentence in the Urban Work Camp.
The Court sentenced Benton to five months imprisonment in the custody of the BOP. The Court did not recommend that she serve her sentence in community confinement in general. Rather, the Court recommended that she serve her sentence in the Urban Work Camp. While inmates participating in the Urban Work Camp resided in community confinement centers they were nevertheless in custody. Their privileges were more restricted than those in regular community confinement in that they had to work at one of two government facilities doing labor that benefits the Border Patrol (Imperial Beach project) or the Navy (North Island Naval Air Station project). The Court recognized that Benton may not be accepted into the program given her prior convictions. Sentencing TR, December 23, 2002, at 64. If the Defendant was not accepted for the Urban Work Camp, the Court recommended that she serve her five months of imprisonment at FCI Dublin. Id. at 68. It appears that Benton would not have been ineligible for the Work Camp due to her convictions. The Court did not recommend that she serve her sentence in community confinement in general. Indeed, the structure of the sentence was that she receive five months imprisonment and five months home confinement. See, Sentencing TR at 66.
Three days prior to sentencing, the BOP eliminated direct placement to community confinement centers as satisfying a sentence of imprisonment. This resulted in the effective termination of the San Diego Urban Work Camp. Had the Court known this at the time of sentencing, it would not have altered the sentence other than not recommending placement in the Urban Work Camp. No other departures would have been granted as it was the Court's intention that Benton serve five months imprisonment. [ Page 4]
Since the Urban Work Camp no longer exists, the question before the Court is whether the BOP's change in interpretation of § 3621(b) violates Benton's alleged right to have the BOP discretionarily place her in community confinement for the service of her five month sentence, not withstanding that such was and is not the recommendation of this Court.
Since the implementation of the BOP's procedural change, several district courts have addressed various statutory and constitutional challenges to the new BOP rule, with varying results. The parties are familiar with all the cases and they need not be listed here. In this petition for writ of habeas corpus, petitioner argues that the BOP's interpretation of 18 U.S.C. § 3621 (b) constitutes an erroneous reading of the statute, and should be given no deference pursuant to Chevron U.S.A., Inc. v. Natural Resources Defense Counsel. Inc., 467 U.S. 837 (1984). She further contends that the procedural change violates the Administrative Procedure Act, because the BOP failed to provide a 30-day notice and comment period. Petitioner also contends that the retroactive application of the procedural change violates the Ex Post Facto Clause and constitutes an impermissible retroactive application.
By its February 21, 2003, order, this Court issued an order to show cause why the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 should not be granted. Benton is effectively in custody as she is on bail and subject to an order to surrender. Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 (1984) (for purposes of federal habeas corpus statutes, petitioner was in "custody" even though his conviction was vacated when he applied for trial de novo and he had been released on personal recognizance); Hensley v. Municipal Court, 411 U.S. 345 (1973) (release on own recognizance after conviction while awaiting sentencing, and had exhausted state remedies is in custody). Because ...