          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                               December 16, 2008
                                No. 08-10282
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

ROBERT BROWN

                                            Petitioner-Appellant

v.

DAVID JUSTICE, Warden, Bureau of Prisons

                                            Respondent-Appellee


                 Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 1:07-CV-179


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
      Robert Brown, federal prisoner # 42463-054, appeals the district court’s
dismissal of a 28 U.S.C. § 2241 petition seeking his placement in home
confinement or a community correctional center (CCC). Brown’s § 2241 petition
asserts that the federal Bureau of Prisons (BOP) has the discretion to place him
in home confinement or a CCC under 18 U.S.C. § 3621(b) and that this discretion
should be exercised because he has served “a reasonable amount of time” and his
elderly mother is caring for his two children. The petition contains several cites

      *
      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should not be published and is not precedent except under the limited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. 08-10282

to Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005), in support
of Brown’s arguments. In Woodall, the Third Circuit invalidated a set of 2005
BOP regulations that prohibit the BOP from considering an inmate for transfer
to a CCC before the last 10 percent or 6 months of his sentence. 432 F.3d at 244-
45. It concluded that the regulations were incompatible with the requirement
in § 3621 that the BOP consider five factors in making an individualized
determination of whether a prisoner is eligible for placement in a CCC, without
temporal constraints. Id. at 244-45, 247-51. In his petition, Brown complains
that the warden of his prison has a “practice of not complying with [Woodall].”
      Giving liberal construction to Brown’s pleadings, see Johnson v.
Quarterman, 479 F.3d 358, 359 (5th Cir. 2007), the district court should address
in the first instance his challenge to the BOP’s application of the 2005
regulations. The court should consider whether Brown’s claim is affected by
Congress’s recent amendment to 18 U.S.C. § 3624 in the Second Chance Act of
2007, Pub. L. No. 110-199, § 251(a), 122 Stat. 657, 692-93 (April 9, 2008), and
any regulations issued pursuant to the amendment.
      Brown also raises for the first time a challenge to the application of the
2005 regulations under the Ex Post Facto Clause. We defer consideration of this
issue until the statutory questions have been resolved. See United States v.
Jackson, 313 F.3d 231, 233 n.2 (5th Cir. 2002) (“We will ‘not grasp a
constitutional question for decision even though properly presented, if there is
also present some other legitimate ground upon which the case can be
decided.’”)(quoting State of Texas v. Grundstrom, 404 F.2d 644, 648 (5th Cir.
1968)). We will not consider Brown’s further assertion that the BOP denies
“PSI’s” to prisoners and commits extortion in the collection of fees and fines. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (“Although we liberally
construe the briefs of pro se appellants, we also require that arguments must be
briefed to be preserved.”)(internal quotations and citation omitted).


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                                 No. 08-10282

      The judgment of the district court is vacated and the case is remanded for
proceedings consistent with this opinion.
      VACATED and REMANDED.




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