                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  April 19, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 06-20427
                           Summary Calendar


CLAUDIA OJEDA,

                                      Petitioner-Appellant,

versus

FEDERAL BUREAU OF PRISONS,

                                      Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No.4:05-CV-2327
                       --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Claudia Ojeda, federal prisoner # 27596-051, appeals the

district court’s denial of her motion for reconsideration of its

order denying her 28 U.S.C. § 2241 habeas petition.

     Ojeda argues that the Bureau of Prisons (BOP) violated her

rights under the Ex Post Facto Clause and the Due Process Clause

when it terminated the Intensive Confinement Center (ICC)

Program, for which she had been recommended at the time of her

sentencing.    Ojeda also argues that the termination of the



     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                            No. 06-20427
                                 -2-

program without providing notice and a chance to comment violated

regulations under the Administrative Procedure Act (APA).

     A change in a policy that merely affects an inmate’s

“opportunity to take advantage of provisions for early release”

does not violate the Ex Post Facto Clause.   Wottling v. Fleming,

136 F.3d 1032, 1037 (5th Cir. 1998) (internal quotation and

citation omitted).   The termination of the ICC program did not

increase the penalty imposed and, thus, did not violate the Ex

Post Facto Clause.

     Ojeda argues that she was denied due process at sentencing

because the parties and the district court were acting under the

mistaken assumption that she could participate in the ICC

program.   Ojeda cannot show a due process violation based on a

postsentence change in policy thwarting the subjective intent of

the district court at sentencing.   United States v. Addonizio,

442 U.S. 178, 187-88 (1979); United States v. DeLario, 120 F.3d

580, 582 (5th Cir. 1997).

     Insofar as Ojeda is challenging the validity of her plea or

the lawfulness of her sentence, rather than the manner in which

her sentence is being executed, her remedy is to file a 28 U.S.C.

§ 2255 motion in the district court in which she was sentenced.

Addonizio, 442 U.S. at 185.

     With respect to the alleged violations of the notice and

comment requirements of the APA, agency action is not subject to

judicial review if such action “is committed to agency discretion
                           No. 06-20427
                                -3-

by law.”   Lincoln v. Vigil, 508 U.S. 182, 190-91 (1993).   The

allocation of a lump-sum appropriation is an administrative

decision that is generally committed to agency discretion, and

the courts will not interfere if the funds are used to meet

“permissible statutory objectives.”   Id. at 193.   The ICC program

was funded by lump-sum Congressional appropriations, and the

decision to terminate the program was discretionary.    It was

merely a change in a rule of agency organization, which is exempt

from the notice requirements.   5 U.S.C. § 553(b)(A).   Thus, the

change is policy was exempt from the notice and comment

requirements of the APA.   Lincoln, 508 U.S. at 195-98.

     The judgment of the district court is AFFIRMED.
