                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                     PUBLISH
                                                                    February 20, 2007
                   UNITED STATES CO URT O F APPEALS                Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT



 EDW AR D J. W EDELSTEDT,

              Petitioner-Appellee,
       v.                                                No. 06-1461
 RON W ILEY, W arden, Federal
 Correctional Institution - Camp
 Florence, Colorado,

              Respondent-Appellant.



         A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                   FOR T HE DISTRICT OF COLORADO
                       (D .C . NO. 06-CV-1337-W YD)


John M . Hutchins, Assistant United States Attorney (Troy A. Eid, United States
Attorney, with him on the briefs), Office of the U nited States A ttorney, Denver,
Colorado, for Appellant.

Kerri L. Ruttenberg (Henry W . Asbill with her on the brief), LeBoeuf, Lamb,
Greene & M acRae, W ashington, D.C., for Appellee.


Before M U RPH Y, M CW ILLIAM S, Senior Judge, and HA RTZ, Circuit Judges.


M U RPH Y, Circuit Judge.
I. IN TR OD UC TIO N

      Petitioner-Appellee Edward J. W edelstedt, a federal inmate housed at the

Federal Prison Camp in Florence, Colorado, applied to the district court for a writ

of habeas corpus pursuant to 28 U.S.C. § 2241. W edelstedt challenged the

lawfulness of Bureau of Prisons (“BOP”) regulations prohibiting his transfer to a

Community Correctional Center (“CCC”) until ten percent of his sentence

remains. W edelstedt argued the regulations, codified at 28 C.F.R. §§ 570.20 and

570.21, are inconsistent with clear congressional intent articulated in 18 U.S.C.

§ 3621(b). Adopting the reasoning of the Second, Third, and Eighth Circuits,

which previously considered the same issue and invalidated the regulations, the

district court granted W edelstedt’s writ and ordered the BOP to consider placing

W edelstedt in a CCC without regard to the BOP regulations. Wedelstedt v. Wiley,

No. 06-cv-01337, 2006 W L 2475268, at *5 (D. Colo. Aug. 24, 2006). 1

      Respondent-Appellant, Ron W iley, W arden of the Florence Federal

Correctional Institution, filed a timely appeal. Respondent contends the



      1
        The Second, Third, and Eighth Circuits are the only circuit courts to have
considered the BOP regulations at issue and each invalidated them. See Levine v.
Apker, 455 F.3d 71, 87 (2d Cir. 2006); Fults v. Sanders, 442 F.3d 1088, 1092 (8th
Cir. 2006); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 237 (3d Cir. 2005).
       Additionally, the First and Eighth Circuits previously concluded a 2002
BOP policy, which similarly prohibited CCC transfer prior to the last part of a
prisoner’s term, constituted an impermissible restriction on the BOP’s discretion
in prisoner assignment. See Elwood v. Jeter, 386 F.3d 842, 847 (8th Cir. 2004);
Goldings v. Winn, 383 F.3d 17, 28-29 (1st Cir. 2004).

                                        -2-
regulations are premised on a reasonable interpretation of 18 U.S.C. § 3621(b)

and § 3624(c), are permissible under Lopez v. Davis, 531 U.S. 230 (2001), and

were promulgated in accordance with the Administrative Procedure Act.

      Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court adopts the

reasoning of the Second, Third, and Eighth Circuits. The BOP regulations

contradict Congress’ clear intent that all inmate placement and transfer decisions

be made individually and with regard to the five factors enumerated in 18 U.S.C.

§ 3621(b). The regulations at issue supplant the five factors and, therefore, are

invalid. This court, accordingly, affirms the district court’s grant of

W edelstedt’s habeas writ and its order that W edelstedt be considered for CCC

placement without regard to 28 C.F.R. §§ 570.20 and 570.21.

II. B AC KGR OU N D

A.    Regulatory and Statutory Provisions

      Section 570.21 of the BOP’s regulations states the BOP “will designate

inmates to community confinement only . . . during the last ten percent of the

prison sentence being served, not to exceed six months.” 28 C.F.R. § 570.21(a).

Section 570.20 establishes the purpose of the regulations as a “categorical

exercise of discretion for designating inmates . . . to community confinement only

as part of pre-release custody and programming which w ill afford the prisoner a

reasonable opportunity to adjust to and prepare for re-entry into the community.”

28 C.F.R. § 570.20(a). The BOP’s notice accompanying the publication of its

                                         -3-
proposed rules explained that its prohibition on placing inmates in CCCs prior to

the final portion of their sentences was consistent with considerations articulated

by Congress in 18 U.S.C. § 3621(b), sentencing policy articulated by Congress in

18 U.S.C. § 3624(c), Congress’ general interest in deterring future criminal

conduct, and policies articulated by the United States Sentencing Commission in

§ 5C1.1 of the Sentencing Guidelines. See Community Confinement, 69 Fed.

Reg. 51213, 51214-15 (proposed Aug. 18, 2004) (to be codified at 28 C.F.R. pt.

570). 2 The BOP identified 18 U.S.C. § 3621(b) as authorizing this categorical

exercise of discretion, and viewed the promulgation of a categorical rule as

permissible under Lopez v. Davis, 531 U.S. 230 (2002). Id. at 51213; see also

Community Confinement, 70 Fed. Reg. 1659, 1659, 1661 (Jan. 10, 2005)

(codified at 28 C.F.R. pt. 570).

      The statute Respondent alleges authorized the promulgation of §§ 570.20

and 570.21, 18 U.S.C. § 3621(b), confers qualified discretion on the BOP to

designate a prisoner’s place of imprisonment. Section 3621(b) provides in

relevant part:

      The Bureau of Prisons shall designate the place of the prisoner’s
      imprisonment. The Bureau may designate any available penal or
      correctional facility that meets minimum standards of health and
      habitability established by the Bureau, . . . , considering—
      (1) the resources of the facility contemplated;

      2
       For a more thorough discussion of the BOP’s adoption of the current ten-
percent policy in 2002 and the promulgation of its current regulations, see Fults,
442 F.3d at 1089-91, and Woodall, 432 F.3d at 240.

                                         -4-
         (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).

         Section 3624(c), the provision on which Respondent relies for the position

that CCC facilities can only be considered as “places of imprisonment” for the

last portion of a prisoner’s sentence, addresses the BOP’s affirmative obligations

to a prisoner as the prisoner nears the end of a term of imprisonment. The statute

directs

         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, of 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.

18 U.S.C. § 3624(c). The relationship between the two statutes and between

§ 3621(b) and the regulations at issue lie at the core of the dispute before this

court.




                                           -5-
B.    Facts and Procedural History

      W edelstedt pleaded guilty in the Northern District of Texas to one count of

interstate transportation of an obscene movie for sale and distribution and one

count of conspiracy to defraud the United States by paying a cash bonus to an

employee. W edelstedt was sentenced to thirteen months’ imprisonment followed

by one year of supervised release. Upon the recommendation of the district court

and the government, the BOP placed W edelstedt at the Federal Prison Camp in

Florence. 3 W edelstedt reported to the Florence facility on June 1, 2006. Because

of anticipated good-time credit, W edelstedt’s projected release date is M ay 9,

2007. At a meeting held to establish W edelstedt’s pre-release plan, the BOP told

W edelstedt he would be eligible for transfer to a CCC on April 6, 2007, the date

on which thirty-three days, or ten percent, of his sentence would remain.

      W edelstedt filed an application for a writ of habeas corpus, pursuant to 28

U.S.C. § 2241, in the district court for the District of Colorado. He contended the

BOP’s regulations impermissibly restrict the discretion Congress gave the BOP in

18 U.S.C. § 3621(b) to consider transferring him to a CCC prior to the last ten

percent of his sentence. 4 Respondent asserted the regulations are valid as a


      3
       The record is silent as to whether the sentencing judge recommended
W edelstedt serve any portion of his sentence in a CCC. See 18 U.S.C.
§ 3621(b)(4)(B).
      4
       W edelstedt’s § 2241 application also alleged the manner in which the B OP
regulations were promulgated violated the Administrative Procedure Act.
                                                                    (continued...)

                                         -6-
permissible exercise of the BOP’s discretion under § 3621(b) and § 3624(c). The

district court granted the writ and Respondent appealed, again asserting the

validity of the BOP regulations.

C.    Other Circuits’ Precedent and the District Court’s Decision

      1. Second, Third, and Eighth Circuit Decisions

      The district court relied heavily in its decision to grant W edelstedt’s habeas

petition on decisions from the Second, Third, and Eighth Circuits. Levine v.

Apker, 455 F.3d 71 (2d Cir. 2006); Fults v. Sanders, 442 F.3d 1088 (8th Cir.

2006); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005). The

Levine, Fults, and Woodall courts each determined that the BOP regulations at 28

C.F.R. §§ 570.20 and 570.21 contradicted the clear and unambiguous

congressional intent expressed in 18 U.S.C. § 3621(b). Levine, 455 F.3d at 87;

Fults, 442 F.3d at 1092; Woodall, 432 F.3d at 249. Each court interpreted

§ 3621(b) to clearly and unambiguously require the BOP to consider the five

factors set out in § 3621(b)(1)-(5) when making placement and transfer decisions,

and interpreted the C CC placement restrictions in § 570.21 as preventing the B OP

from fully considering of each of these factors. Levine, 455 F.3d at 87 (“Section

3621(b) establishes clear parameters for the BOP’s exercise of discretion in



      4
        (...continued)
Because it determined the BOP regulations were contrary to clear congressional
intent, the district court did not reach W edelstedt’s Administrative Procedure Act
claim.

                                         -7-
making prison placements and transfers. By sorting prisoners’ eligibility for

[CCCs] only according to the portion of time served, the BOP has unlaw fully

excised these parameters from the statute.”); Fults, 442 F.3d at 1092 (“[T]he

BOP’s regulation necessarily conflicts with § 3621(b) by excluding an entire class

of inmates— those not serving the final ten percent of their sentences— from the

opportunity to be transferred to a CCC.”); Woodall, 432 F.3d at 249 (“[W ]e are

faced with a statute providing that the BOP must consider several factors in CCC

placement, and a regulation providing that the agency may not consider those

factors in full. The conflict between the regulations and the statute seems

unavoidable.”). Under Chevron, U.S.A. v. Natural Resources D efense Council,

467 U.S. 837, 842 (1984), these courts ruled the regulations were invalid.

Because each court determined § 3621(b) includes a clear assertion of

congressional intent, each rejected the B OP’s argument that, under Lopez v.

Davis, 531 U .S. at 242, the promulgation of §§ 570.20 and 570.21 was a

permissible exercise of the BOP’s categorical rulemaking authority. Levine, 455

F.3d at 85; Fults, 442 F.3d at 1091; Woodall, 432 U.S. at 246-47. 5

      5
       The statutory provision at issue in Lopez was 18 U.S.C. § 3621(e)(2)(B),
which provides the B OP with discretion to reduce a nonviolent offender’s
sentence by up to one year after the prisoner successfully completes a substance
abuse treatment program. Lopez v. Davis, 531 U.S. 230, 232 (2001). The BOP
promulgated a regulation to categorically exclude from the possibility of early
release any inmate whose current offense was a felony that involved the carrying,
possession, or use of a firearm or other dangerous weapon. Id. (citing 28 C.F.R.
§ 550.58). The Lopez Court interpreted the statute authorizing the BOP rule to
                                                                      (continued...)

                                         -8-
      2. The District Court Decision

      The district court was guided by the reasoning of Levine, Fults, and

Woodall in invalidating the BOP’s categorical refusal to consider placing an

inmate in a CCC until the last ten percent of his sentence. Wedelstedt, 2006 W L

2475268, at *4. The court recognized the regulations were enforced in two other

district court decisions from the District of Colorado. 6 Id. at *3 (citing M ontoya

v. Rios, No. 05-cv-00606, 2005 W L 3271489 (D . Colo. Nov. 30, 2005); Hurley v.

Sherrod, No. 05-cv-01177 (D. Colo. Sept. 21, 2005)). The district court in this

case, however, concluded that Congress spoke directly to the “precise question at

issue” and determined, accordingly, no deference was owed to the BOP’s

interpretation of 18 U.S.C. § 3621(b). Id. at *3 (citing Chevron, 467 U.S. at 842).

The district court distinguished Lopez on the same ground as the Levine, Fults,

and Woodall courts. Id. at *4.




      5
       (...continued)
contain a gap that the regulation reasonably filled in accordance with Chevron,
U.S.A. v. Natural Resources D efense Council, 467 U.S. 837, 844 (1984). Id. at
242.
      6
       This court’s opinion will resolve several conflicting decisions of the
Colorado district court. Com pare Bichon v. Wiley, No. 06-cv-0011 (D. Colo.
Nov. 13, 2006), M ontoya v. Rios, No. 05-cv-00606, 2005 W L 3271489 (D. Colo.
Nov. 30, 2005), and Hurley v. Sherrod, No. 05-cv-01177 (D. Colo. Sept. 21,
2005), with Bassett v. Wiley, No. 06-cv-00374 (D . Colo. Sept. 25, 2006), appeal
docketed No. 06-1514 (10th Cir. Nov. 28, 2006), and Pflum v. Wiley, No.
06-cv-00404 (D. Colo. Sept. 25, 2006).

                                          -9-
III. ANALYSIS

A.    Standard of Review and Governing Legal Principles

      This court’s review of district court statutory interpretation is de novo.

Prows v. Fed. Bureau of Prisons, 981 F.2d 466, 469 (10th Cir. 1992). This court

first looks at the statute to determine whether Congress “has spoken directly to

the precise question at issue” in such a way that its intent is clear and

unambiguous. Chevron, 467 U.S. at 842. If congressional intent is clear and

unambiguous, our inquiry is complete. Id. at 842-43. W e owe no deference to

the agency’s interpretation and must give effect to the statute as Congress

intended it. Id. If the statutory scheme involves an ambiguity or silence on the

precise question at issue, however, we must next consider whether the agency’s

interpretation is permissible. Id. at 843. A reviewing court must uphold an

agency regulation that relies on a reasonable construction of an ambiguous or

silent statute as long as the regulation is not “arbitrary, capricious, or manifestly

contrary to the statute.” Id. at 844.

      Although this court is not bound by other circuits’ precedent, see United

States v. Carson, 793 F.2d 1141, 1147 (10th Cir. 1986), we are guided in our

decisions by their well-reasoned and thoughtful opinions. See Owens v. M iller (In

re M iller), 276 F.3d 424, 429 (8th Cir. 2002) (“‘[W ]e strive to maintain

uniformity in the law among the circuits, wherever reasoned analysis will allow

. . . .’”). This court joins the Second, Third, and Eighth Circuits in concluding 28

                                         -10-
C.F.R. §§ 570.20 and 570.21 impermissibly conflict with the clear and

unambiguous congressional intent articulated in 18 U.S.C. § 3621(b) and are,

therefore, invalid. Levine, 455 F.3d at 87; Fults, 442 F.3d at 1092; Woodall, 432

F.3d at 237. Our conclusion is the result of an analysis of the relevant statutory

language and an examination of the BOP regulations to determine whether they

are consistent or inconsistent with § 3621(b)’s statutory mandate.

B.    Statutory Language

      An analysis of statutory language begins with the statute’s text. Levine,

455 F.3d at 80. Section 3621(b) requires the BOP to “designate the place of the

prisoner’s imprisonment.” 18 U.S.C. § 3621(b). The statute gives the agency

discretion in making this designation by stating the BOP may assign the prisoner

to “any available penal or correctional facility” meeting minimum health and

safety standards. Id. This delegation of discretion, however, is cabined by

further mandatory direction to the BOP to “consider[]” the five factors

enumerated in the statute when making its designation. See id. § 3621(b)(1)-(5). 7

The statute’s use of the word “and” between the fourth and fifth factors provides

a clear indication that all five factors are to be considered. Accord Levine, 455



      7
        Although we need not look at legislative history when statutory language
is clear, Levine, 455 F.3d at 82, the legislative history associated with 18 U.S.C.
§ 3621(b) confirms that Congress intended the B OP to consider the five factors
prior to designating a place of imprisonment. See id. (citing S. Rep. No. 98-225
(1983), as reprinted in 1984 U.S.C.C.A.N. 3182, 3324-25); Woodall, 432 F.3d at
245-46.

                                         -11-
F.3d at 81; Fults, 442 F.3d at 1092; Woodall, 432 F.3d at 245. The statute,

furthermore, delegates to the BOP the ability to “direct the transfer of a prisoner

from one penal or correctional facility to another.” 18 U.S.C. § 3621(b).

Transfer decisions must also, however, be made with “regard for the same

matters” set out at § 3621(b)(1)-(5). Id. The Levine and Woodall courts

undertook a more rigorous textual analysis which we adopt but need not replicate

here. See Levine, 455 F.3d at 80-82; Woodall, 432 F.3d at 245-46.

      R espondent asserts 18 U .S.C. § 3621(b) is ambiguous if read alone. He

contends this provision should, instead, be read in combination with 18 U.S.C.

§ 3624(c), a more specific provision signaling Congress’ intent that CCCs and

other means of community confinement be used only at the end of a prisoner’s

sentence. In support of this argument, Respondent directs this court’s attention to

the dissenting opinions in several of the circuit courts that have addressed the

issue. See Fults, 442 F.3d at 1093 (Riley, J., dissenting); Woodall, 432 F.3d at

251 (Fuentes, J., dissenting); Elwood v. Jeter, 386 F.3d 842, 847-48 (8th Cir.

2004) (Riley, J., dissenting). Aside from referencing the congressional “policy”

articulated in § 3624(c), however, Respondent provides no support for the

position that Congress intended § 3624(c) to modify or limit the BOP’s placement

discretion under § 3621(b). Nowhere does Respondent explain why or how

§ 3621(b) is incomplete or ambiguous unless it is read in context w ith § 3624(c).




                                         -12-
      After considering the language of § 3621(b) and the relationship between

its qualified grant of discretion and § 3624(c)’s affirmative obligation, this court

sees no conflict between these statutory provisions. The statutory command in

§ 3621(b) stands alone as a clear and unambiguous articulation of congressional

intent regarding the process by which the BOP should make placement and

transfer determinations. Accord Levine, 455 F.3d at 82; Woodall, 432 F.3d at

246. Although § 3624(c) surely imposes an affirmative obligation on the BO P,

whenever practicable, to place an inmate in a CCC or other form of community

confinement as the inmate’s release date nears, § 3624(c) has no bearing on

whether a CCC may be considered as a place of imprisonment at some earlier

point in a prisoner’s period of incarceration. See Prows, 981 F.2d at 469

(interpreting § 3624(c) as imposing a mandatory obligation on the BOP to

facilitate a prisoner’s pre-release transition, but explicitly stating § 3624(c) does

not affect the agency’s discretion in determining an individual prisoner’s place of

imprisonment prior to the pre-release period); accord Woodall, 432 F.3d at 250

(“[Section] 3624[(c)] does not determine when the BOP should consider CCC

placement, but when it must provide it.”); Elwood, 386 F.3d at 847 (“Under

§ 3621(b), the BO P may place a prisoner in a CCC for six months, or more.

Under § 3624(c) the BO P must formulate a plan of pre-release conditions.”

(emphasis added)); Goldings v. Winn, 383 F.3d 17, 26 (1st Cir. 2004) (same). In

this court’s view , § 3624(c) has no bearing on whether §§ 570.20 and 570.21 are

                                          -13-
consistent with the § 3621(b) statutory scheme for BOP placement and transfer

determinations.

      Section 3621(b) articulates clear and unambiguous congressional intent that

all placement and transfer determinations be carried out with reference to each of

the five factors enumerated in § 3621(b)(1)-(5). 8 In promulgating regulations

pursuant to this statute, the BOP must not contradict Congress’ clear intent.

Chevron, 467 U.S. at 843 n.9 (“The judiciary . . . must reject administrative

constructions w hich are contrary to clear congressional intent.”). Accordingly, if

28 C.F.R. §§ 570.20 and 570.21 are inconsistent with § 3621(b), this court must

determine them to be invalid.

C.    Relationship Between 18 U.S.C. § 3621(b) and 28 C.F.R. §§ 570.20 and
      570.21

      Section § 570.20(a), the policy statement explaining the BOP’s ten-percent

rule, defines the rule as a “categorical exercise of discretion for designating

inmates to community confinement.” 28 C.F.R. § 570.20(a). Section 570.21(a)

then provides that the BOP “will designate inmates to comm unity confinement

only as part of pre-release custody and programming” and only “during the last



      8
        The Second Circuit concluded the BOP may consider other factors in
addition to five enumerated in the statute, but that it must, at a minimum, consider
all five factors. See Levine, 455 F.3d at 82 n.6. Like the Third Circuit, we agree
that whether the BOP may consider other factors in addition to the five factors
enumerated in the statute, is “separate and unrelated to the question whether it
can ignore altogether the very factors delineated by Congress in the governing
statute itself.” Woodall, 432 F.3d at 247.

                                         -14-
ten percent of the prison sentence being served, not to exceed six months.” 28

C.F.R. § 570.21(a). The regulations, therefore, add a threshold requirement to

any placement or transfer decision the BOP might make under 18 U.S.C.

§ 3621(b). As long as an inmate has more than ten percent of his sentence left to

serve (or as long as ten percent of an inmate’s remaining sentence exceeds the

regulation’s six-month maximum), the BOP w ill categorically refuse to consider

whether the five statutory factors would, nonetheless, weigh in favor of earlier

CCC placement. This categorical refusal to consider the five statutory factors is

in direct conflict with the clear congressional command that the factors be

considered if a transfer is sought or recommended. Based on the foregoing

reasoning, the district court and each of the three circuit courts to consider the

question determined these regulations to be inconsistent with the clear and

unambiguous congressional intent articulated in § 3621(b) and, therefore, invalid

under Chevron’s first step. See Levine, 455 F.3d at 87; Fults, 442 F.3d at 1090;

Woodall, 432 F.3d at 249; Wedelstedt, 2006 W L 2475268, at *4.

      Because he attacks the premise that § 3621(b) is clear and unambiguous,

Respondent urges this court to apply a reasonableness standard under Chevron’s

second step. Respondent’s argument is essentially that, when § 3621(b) and

§ 3624(c) are read in tandem, the statutory scheme as a whole contains gaps that

the BOP regulations reasonably fill. As discussed above, however, there is

nothing in the language of either § 3621(b) or § 3624(c) to suggest these

                                         -15-
provisions are inconsistent or contain gaps when read together, nor is there any

contradiction in congressional intent or policy when these two provisions are read

separately. M oreover, as stated above, the language of § 3621(b) is clear and

unambiguous. This court need not ask or consider, therefore, whether the

agency’s interpretation of the statute is reasonable. Chevron, 467 U.S. at 843. A s

the “final authority on issues of statutory construction” it is our duty to reject

administrative regulations that are inconsistent with clear congressional intent.

Id. at 843 n.9.

      Respondent also attempts to justify the regulations as permissible under the

Supreme Court’s decision in Lopez v. Davis, arguing Lopez permits the

promulgation of a categorical rule governing inmate placement and transfer

decisions because the rule addresses an issue of “general applicability.” See

Lopez, 531 U.S. at 244. Like the other circuit courts that have considered this

argument, this court rejects it. The Supreme Court in Lopez held that agencies

have the authority to promulgate categorical rules even under statutory regimes

that call for individualized determinations. Lopez, 531 U.S. at 241-42. Lopez

makes clear, however, that an agency’s authority to promulgate categorical rules

is limited by clear congressional intent to the contrary. Id. at 243. In other

words, Lopez applies only when Congress has not spoken to the precise issue and

the statute contains a gap. Id. at 242 (explaining its analysis falls within

Chevron’s reasonableness inquiry because “Congress has enacted a law that does

                                          -16-
not answer ‘the precise question at issue’”). The Lopez Court was careful to state

that 18 U.S.C. § 3621(e)(2)(B), the provision at issue in that case, did not identify

any criteria for the BOP to use in either granting or denying early release to

individual nonviolent offenders. Id. Section 3621(b), in contrast, enumerates

five factors, including three that are specific to the individual prisoner, which

must be considered prior to any placement or transfer decision. See § 3621(b)(1)-

(5); accord Levine, 455 F.3d at 85, Fults, 442 F.3d at 1091; Woodall, 432 F.3d at

247. In determining that Lopez did not control their analysis of §§ 570.20 and

570.21, the Second, Third, and Eighth Circuits concluded that because § 3621(b)

contained explicit, inmate-specific factors to guide inmate placement and transfer

decisions, § 3621(b) did not contain a gap similar to the statutory provision in

Lopez. Levine, 455 F.3d at 85; Fults, 442 F.3d at 1091; Woodall, 432 F.3d. at

246-47. Because we determine § 3621(b) to be clear, unambiguous, and

distinguishable from the statutory provision in Lopez, we reject Respondent’s

contention that Lopez validates the BOP’s categorical rule in 28 C.F.R. § 570.21.

      Respondent lastly claims the BOP’s categorical rule is permissible because

the BOP considered the five factors enumerated in § 3621(b)(1)-(5) when

promulgating the regulations. This argument, like Respondent’s others, must fail.

The statutory language in § 3621(b) clearly indicates the five enumerated factors

are to be applied to individual inmates. See 18 U.S.C. § 3621(b) (“The Bureau of

Prisons shall designate the place of the prisoner’s imprisonment. The Bureau

                                         -17-
may designate any available penal or correctional facility . . . considering [the

five enumerated factors].” (emphasis added)). The BOP cannot validate this

otherwise invalid regulation by claiming to have categorically considered the five

statutory factors during the rulemaking process. The individualized nature of

three of the five factors— the nature of the prisoner’s offense, the prisoner’s

history and characteristics, and the sentencing judge’s statement— made such

consideration impossible. See Fults, 442 F.3d at 1092.

IV . W EDE LST ED T’S R EM E DY

      This court’s determination that the BOP regulations are invalid entitles

W edelstedt to be considered for transfer to a CCC prior to the last ten percent of

his sentence. In determining w hether W edelstedt should be transferred, the BOP

must consider the factors set forth in 18 U.S.C. § 3621(b) without regard to the

invalid regulations. This court, however, takes no position on whether

W edelstedt should be transferred and, as W edelstedt himself acknowledges, he

has no entitlement to such a transfer. The record on appeal does not indicate

whether the sentencing court made any statements recommending that W edelstedt

serve part of his sentence in a CCC, nor is it appropriate for this court to consider

the arguments made in the parties’ briefs about W edelstedt’s character.




                                         -18-
V . C ON CLU SIO N

      For the foregoing reasons, this court affirm s the district court’s grant of

W edelstedt’s habeas writ and affirms the district court’s order that the BOP

immediately consider whether W edelstedt should be transferred to a CCC without

regard to 28 C.F.R. §§ 570.20 and 570.21. The mandate shall issue forthwith.




                                        -19-
06-1461, Wedelstedt v. Wiley

HA RTZ, Circuit Judge dissenting:


      I respectfully dissent. Were it not for the fact that two-thirds of the circuit

judges and a number of the district judges who have considered the matter have

reached a conclusion contrary to mine, I w ould have thought this an easy case.

      The statute at issue, 18 U.S.C. § 3621(b), provides as follow s:

      Place of imprisonment.— The Bureau of Prisons shall designate the
      place of the prisoner’s imprisonment. The 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 w hich the sentence to
            imprisonment was determined to be w arranted; 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 economical 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. The Bureau shall
      make available appropriate substance abuse treatment for each
      prisoner the Bureau determines has a treatable condition of substance
      addiction or abuse.

I have no difficulty agreeing with the panel majority that this language requires

the Bureau of Prisons (BOP) to consider the five listed factors (although it may

also consider others) in deciding where to house a prisoner. The issue is whether

this duty requires the BOP to address each of the factors with respect to the

individual prisoner in every case. I think not. The BOP performs its statutory

duty if it reasonably considers a factor w hen promulgating a general rule.

      The five factors set forth in § 3621(b) are to be used in making housing

determinations in a wide variety of circumstances. Some factors will be more

important, perhaps much more important, than other factors in certain

circumstances. Experience, or common sense, may reveal that in a particular set

of circumstances one of the factors— call it factor A— simply cannot overcome the

weight of the other factors. A ccordingly, there is no need to engage in fact-

finding or analysis regarding factor A in individual cases within that set of

circumstances. Recognition of that reality is not contrary to a directive to

consider all five factors. It is enough that the BOP has considered factor A in that

context and determined that the outcome w ill be the same no matter what the

specific facts regarding the factor.




                                         -2-
      Consider a prisoner sentenced to death for a terrorism offense. The

prisoner seeks to be housed in a minimum-security facility. Is it really necessary

for the BOP to check the prisoner’s file to see whether, under factor (3), he had

bright spots in his history or characteristics? I cannot believe that Congress could

have intended to require such useless effort.

      W e should read statutory language as if it w ere written by human beings.

Say the company president sent out a directive stating:

      M anagers shall select the appropriate mode of transportation for each
      trip on company business by a subordinate, considering
             (1)  the cost of the mode of transportation,
             (2)  the travel time using that mode of transportation,
             (3)  the safety of the mode of transportation, and
             (4)  the impact of the mode of transportation on the
                  appearance and functioning of the employee upon arrival
                  at the business destination.

W ould the head of the international-business division be fired for insubordination

if she orders that anyone traveling to Beijing should travel by jet (not, for

example, boat)? O f course not. And if one should read such a mandate in the real

world as permitting general rules, I do not see why we should assume that

Congress is using similar language in a more rigid, unreasonable manner.

      A second, rather different, analogy may also be instructive. The laws of

physics, which are entitled to even greater respect than Congressional enactments,

may declare that a particular phenomenon— say, the path of a projectile— is

governed by a function of five parameters. To calculate precisely the path of a



                                          -3-
projectile, one would need to measure each of those parameters and plug those

numbers into the function. It may be, however, that in a particular setting the

value of one of the parameters (at least within the range of that parameter that

occurs in practice) makes no measurable difference in the path of the projectile.

An engineer preparing a manual for those who need to know the projectile’s path

in that setting would not be failing to consider a binding law of physics by

omitting that parameter in the formula provided for calculating the path. The

engineer had “considered” the parameter when determining that it could not affect

the calculations.

      Similarly, it would be consistent with § 3621(b) (although likely beyond

the present power of social scientists and computer experts) for the BOP to

develop a mathematical function for determining where prisoners should be

housed. Section 3621(b) would require that the function depend on at least five

parameters (one for each of the factors listed in the statute) and the function

w ould have to be a reasonable application of those factors. The task of the BOP

staff assigned to determine a particular prisoner’s placement would be to gather

all the relevant data (making fact findings on disputed evidence as necessary) and

then feed them into the computer to calculate the result determined by the

function. But suppose that the BOP observes that in a certain circumstance, such

as determining whether a prisoner should be housed on death row, the result does

not change no matter how several parameters vary. Surely, the BOP could issue a

                                          -4-
regulation that those inconsequential parameters need not be measured in that

circumstance. No matter how forcefully the sentencing judge advocated severe

punishment for a man convicted of bank fraud, he should not be placed on death

row; so factor (4) in § 3621(b), which relates to statements by the sentencing

judge, is inconsequential in deciding whether that particular housing is

appropriate for someone convicted of that offense. W hy bother collecting the

data when they have no effect? O ne would hope that BOP personnel have better

things to do.

      Therefore, I would conclude that a BOP regulation governing a particular

housing choice can be entirely consistent with § 3621(b) even if the regulation

does not require consideration in some circumstances of one, or more, of the

factors listed in the statute. W hen experience or common sense shows that the

housing decision will be the same no matter what the evidence regarding a

particular factor, the BOP need not go through the motions of collecting the

evidence and noting that the one factor cannot outweigh the others in the

particular circumstance.

      I do not believe that I am saying anything new . Indeed, the Supreme Court

not long ago said essentially the same thing: “Even if a statutory scheme requires

individualized determinations, . . . the decisionmaker has the authority to rely on

rulemaking to resolve certain issues of general applicability unless Congress

clearly expresses an intent to withhold that authority.” Lopez v. Davis, 531 U.S.

                                         -5-
230, 243-44 (2001) (brackets and internal quotation marks omitted). I am

unpersuaded by attempts to exclude that principle from the present context.

      There remain, however, further questions whether the BOP regulation at

issue in this case, 28 C.F.R. § 570.21, was adopted in accordance with proper

procedures and whether the BOP has justified it as a reasonable application of the

statutory factors. I w ould leave those questions for the district court to resolve in

the first instance. I w ould note, however, that the rule appears reasonable.

Prisoners may well not benefit from more than six months in a halfway house.

And providing a prisoner with the relative freedom of such a setting for more than

10% of his or her sentence would seem to undermine the purpose of imposing the

full sentence in the first place.




                                          -6-
