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Bottinelli v. Salazar

United States Court of Appeals, Ninth Circuit

July 15, 2019

DARREN BOTTINELLI; PAMELA MARIE MCGOWAN; TIMOTHY LASHAWN ALLEN; RICARDO CESAR RAMIREZ; JUAN JESUS BORREGO; MICHAEL EUGENE DAVIS; MARK NUTTER; ALEX DURAND WILLIAMS-DAVIS, Petitioners-Appellants,
v.
JOSIAS SALAZAR; WILLIAM BROWN, Respondents-Appellees.

          Argued and Submitted July 8, 2019

          Appeal from the United States District Court for the District of Oregon No. 3:19-cv-00256-MO Michael W. Mosman, District Judge, Presiding

          Before: Ferdinand F. Fernandez, Susan P. Graber, and John B. Owens, Circuit Judges.

          OPINION

          OWENS JUDGE

         Darren Bottinelli and seven other federal prisoners ("Petitioners") appeal from the district court's denial of their joint petition for a writ of habeas corpus. They argue that the recently enacted First Step Act's amendment to the good time credit provision requires the Bureau of Prisons ("BOP") to re-calculate their sentences immediately, which would accelerate their dates for release or transfer to prerelease custody. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

         I. BACKGROUND

         A federal prisoner who is serving more than a one-year term of imprisonment may earn good time credit toward his or her sentence so long as the prisoner "display[s] exemplary compliance with institutional disciplinary regulations." 18 U.S.C. § 3624(b)(1). Section 3624(b) controls how the BOP calculates good time credit. Until recently, although the statute provided that prisoners could earn "up to 54 days" each year for exemplary compliance, the BOP used a calculation that allowed a maximum of only 47 days. See Barber v. Thomas, 560 U.S. 474, 476-79 (2010) (discussing § 3624(b)(1)). Courts, including ours, upheld this 47-day calculation. See id. at 492; Pacheco-Camacho v. Hood, 272 F.3d 1266, 1271 (9th Cir. 2001).

         On December 21, 2018, the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, was enacted. The Act implemented a number of prison and sentencing reforms. We limit our focus to subsection 102(b), which made two amendments relevant to this appeal.

         First, paragraph 102(b)(1) amends § 3624(b) - the good time credit provision - to require the BOP to permit up to 54 days per year. § 102(b), 132 Stat. at 5210. Second, paragraph 102(b)(1) amends § 3624 by adding subsection (g), which is relevant to the Act's creation of an earned time credit system.[1] Id. at 5210-13. The Act requires that, within 210 days of its enactment, the Attorney General establish a "risk and needs assessment system" to, broadly speaking, review each prisoner's recidivism risk level, award earned time credit as an incentive for participation in recidivism reduction programming, and "determine when a prisoner is ready to transfer into prerelease custody or supervised release in accordance with section 3624." § 101(a), 132 Stat. at 5196-97. Section 3624(g) details the criteria for when a prisoner becomes eligible, considering earned time credit, for transfer to prerelease custody or supervised release. § 102(b), 132 Stat. at 5210-13.

         Subsection 102(b) also includes an effective-date provision in paragraph 102(b)(2), and a retroactivity provision in paragraph 102(b)(3).

SEC. 102. IMPLEMENTATION OF SYSTEM AND RECOMMENDATIONS BY BUREAU OF PRISONS.
(b) PRERELEASE CUSTODY.- . . .
(2)EFFECTIVE DATE.-The amendments made by this subsection shall take effect beginning on the date that the Attorney General completes and releases the risk and needs assessment system under subchapter D of chapter 229 of title 18, United States Code, as added by section 101(a) of this Act.
(3)APPLICABILITY.-The amendments made by this subsection shall apply with respect to offenses committed before, on, or after the date of enactment of this Act, except that such amendments shall not apply with ...

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