                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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"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                                                                 NOT PRECEDENTIAL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

                                             2
             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

                                             3
                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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