                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-3500
                                      ___________

                                    DUANE GUESS,
                                                        Appellant

                                            v.

       WARDEN ROBERT WERLINGER; U.S. DEPARTMENT OF JUSTICE;
                    FEDERAL BUREAU OF PRISONS
                ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 10-cv-00182 )
                       District Judge: Honorable Kim R. Gibson
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    March 9, 2011

          Before: FUENTES, GREENAWAY, JR. and ROTH, Circuit Judges

                              (Opinion filed: April 5, 2011)

                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

       Duane Guess filed a habeas petition pursuant to 28 U.S.C. § 2241 in District

Court. Serving a sentence of 240 months, he stated that his projected release date is in


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August 2012 and that he expected to be reviewed for prerelease custody options at

approximately 17 to 19 months before his projected release date. He requested that the

Bureau of Prisons (“BOP”) conduct his individualized review under 18 U.S.C. § 3621

immediately so that he could be afforded 18 months in the prerelease custodial

arrangements described in 18 U.S.C. § 3624. He also asked the BOP be directed to show

cause why the writ should not be granted.

       A Magistrate Judge screened the petition and recommended that it be dismissed as

meritless and for failure to exhaust administrative remedies. More specifically, the

Magistrate Judge noted that the District Court does not issue writs to have the BOP justify

why it had not conducted Guess’s review sooner. The Magistrate Judge also stated that to

the extent Guess wanted the District Court to grant him 18 months in a halfway house or

home confinement, he had not exhausted his administrative remedies as to that claim.

The Magistrate Judge noted that Guess had completed only the first stage of the

administrative review process before filing suit.

       Guess filed objections. He again requested an immediate prerelease review by the

BOP. He also conceded that he had not exhausted his administrative remedies. He

argued that his claim should be heard nonetheless because exhaustion would be futile

given that he was challenging the validity of the BOP’s regulation not its application.

Expanding on his argument, Guess contended that the BOP’s policy of refusing to

conduct a prelease evaluation before 17 to 19 months before a projected release date is

invalid and violates 18 U.S.C. §§ 3621(b) & 3624(c). He also stated that the BOP’s


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decision to wait to hold his hearing was invalid as to him and contrary to the

individualized determinations intended by statute.

       The District Court denied Guess’s objections, specifically rejecting his argument

that he should be excused from exhausting his administrative remedies. The District

Court also noted that Guess had offered nothing to suggest that the BOP has abused or

will abuse its discretion in determining his prerelease custody placement. The District

Court then adopted the Magistrate Judge’s report and recommendation as its opinion.

Guess appeals.

       In his brief, Guess challenges the validity of the BOP’s policy of waiting until 17

to 19 months before a prisoner’s release to conduct the hearing on prerelease custody. He

claims that he is not challenging the application of the regulations, but he also contends

that the BOP erred in denying his request for a review before 17 to 19 months and asks us

to order the BOP to conduct an immediate review in his case. In response to the

Government’s contention that Guess’s petition was properly dismissed for failure to

exhaust, Guess states that he succeeded in exhausting his administrative remedies after

the District Court ruled. In addition to pursuing the exhaustion argument, the

Government states that Guess’s petition lacked merit.

       We have jurisdiction pursuant to 28 U.S.C. '' 1291 and 2253. Our review of the

District Court=s legal conclusions is plenary. See Rios v. Wiley, 201 F.3d 257, 262 (3d

Cir. 2000).

       We conclude that, in part, Guess challenged and continues to challenge the validity


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of the BOP policy that sets the prerelease custody hearing at 17 to 19 months before the

projected release date. He presents a challenge that sounds in habeas under § 2241

because he alleges that the time of the hearing forecloses a prerelease custodial placement

of 18 months, the amount of time that he says is available under law. That is, Guess’s

challenge implicates the execution of his sentence. See Woodall v. Fed. Bureau of

Prisons, 432 F.3d 235, 243 (3d Cir. 2005).

       To the extent that Guess contested the validity of the BOP’s policy, he did not

need to exhaust his administrative remedies. See Woodall, 432 F.3d at 239 n.2.

However, the District Court did not err in concluding the claim lacks merit. Guess’s

claim fails because it proceeds from a misunderstanding of 18 U.S.C. § 3624. The statute

provides up to 12 months in the prerelease custodial arrangements it describes. See

Krueger v. Martinez, 665 F. Supp. 2d 477, 480 (M.D. Pa. 2009). More specifically, the

statute provides generally for the following prerelease custody:

       The Director of the Bureau of Prisons shall, to the extent practicable, ensure
       that a prisoner serving a term of imprisonment spends a portion of the final
       months of that term (not to exceed 12 months), under conditions that will
       afford that prisoner a reasonable opportunity to adjust to and prepare for the
       reentry of that prisoner into the community. Such conditions may include a
       community correctional facility.

18 U.S.C. ' 3624(c)(1). The authority for prerelease custody found in subsection (c)

includes the authority to Aplace a prisoner in home confinement for the shorter of 10

percent of the term of imprisonment of that prisoner or 6 months.@ See id. at

' 3624(c)(2). The 6 months of home confinement is not additional to the 12 months of

prerelease custody.
                                             4
       We also reject Guess’s contention that the scheduling of the prerelease hearing at

17 to 19 months before a projected release date runs afoul of 18 U.S.C. § 3621(b). In this

provision, section 3621 sets forth the factors that the BOP must consider when exercising

its discretion in determining prerelease custody under § 3624(c). See Woodall, 432 F.3d

at 251. As Guess states, the determination must be individualized for each prisoner. See

id. at 248. However, because the 18 month period that Guess describes is not available

under § 3624(c), a hearing at 17 to 19 months before a projected release date does not

fail to take into account individual circumstances (such as the circumstances he describes,

a supposed entitlement to 18 months of prerelease custody).

       Guess also filed his habeas petition to take issue with how the policy was applied

to him. He appears to seek a hearing in advance of 17 to 19 months before the end of his

sentence or even release into one of the prerelease custodial options at 18 months before

his projected release date. To some extent, the passage of time has made his claims moot:

we are within 18 months of his projected release date. To the extent they are not moot,

he is not entitled to relief on them anyway because he did not exhaust his administrative

remedies. He conceded as much in the District Court. Although he filed a document on

appeal in which he asserted that he took additional steps to exhaust his administrative

remedies after the District Court ruled, he did not exhaust his claims before he filed his

petition. In any event, under the circumstances at issue, the BOP’s policy does not violate

18 U.S.C. § 3621(b) or § 3624(c), as we explained above.

       For the reasons given, we will affirm the District Court’s judgment.


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