UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Transcription

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ZALMEN ASHKENAZI, ) ) Plaintiff, ) ) v. ) Civil Action No (GK) ) ATTORNEY GENERAL OF THE ) UNITED STATES, ET AL., ) ) Defendants. ) MEMORANDUM OF LAW OF AMICUS CURIAE FEDERAL PUBLIC DEFENDER FOR THE DISTRICT OF COLUMBIA IN SUPPORT OF PLAINTIFF'S APPLICATION FOR A PRELIMINARY INJUNCTION AND AN ORDER IN THE NATURE OF MANDAMUS On January 22, 2003, the Court appointed the Federal Public Defender ( FPD ) for the District of Columbia as amicus curiae in this case. The FPD is filing this memorandum in support of the application of Zalmen Ashkenazi for relief from the Bureau of Prisons' ("BOP") redesignation of him to a Federal Prison Camp rather than the originally designated Community Corrections Center ("CCC"). Mr. Ashkenazi seeks a preliminary injunction pursuant to Fed. R. Civ. P. 65(a), enjoining the defendants from transferring him from the Brooklyn CCC pursuant to BOP's new inmate designation policy, and an order in the nature of mandamus under 28 U.S.C to compel BOP to exercise its authority to select and designate a place for service of his sentence under 18 U.S.C. 3621(b), in accordance with a correct interpretation of its statutory power. Both forms of relief are appropriate in this case.

2 I. BOP'S POLICY CHANGE CATEGORICALLY PRECLUDING DESIGNATION TO CCC'S TO SERVE SENTENCES OF IMPRISONMENT CONTRAVENES CONGRESS'S CLEAR STATUTORY DIRECTIVE, CONFLICTS WITH CONTROLLING CASE LAW, AND MISINTERPRETS THE SENTENCING GUIDELINES A. BOP's Policy Change Is Based Upon An Erroneous Interpretation Of Its Statutory Authority Prior to December 2002, and at least as early as 1985, BOP had consistently construed its statutory authority to authorize the designation of a CCC as an available correctional facility for service of a federal sentence of imprisonment. BOP's designation policy continued uninterrupted after the Sentencing Guidelines took effect in Consistent with this understanding of BOP's designation authority, federal judges have recommended CCC placement for certain offenders and BOP has generally followed those recommendations. Moreover, federal prosecutors nationally have routinely consented to, or at least agreed not to oppose, halfway house placement for certain offenders, including some, like Mr. Ashkenazi, who received sentences in Zone D of the Guidelines' Sentencing Table. Amicus is not aware of any case in this district prior to December 2002, where the government had ever questioned or challenged BOP's authority to designate a CCC for service of a sentence of imprisonment. However, as of December 20, 2002, BOP's long-standing designation practice abruptly changed. BOP's "procedure change" (see Memorandum from Kathleen Hawk Sawyer for Federal Judges, 12/20/02) resulted from a directive from the Department of Justice ("DOJ"), which, in turn, was based exclusively upon its Office of Legal Counsel's ("OLC") unprecedented and mistaken reinterpretation of BOP's designation authority. OLC's conclusion that BOP's designation of a CCC to serve a sentence of imprisonment was unlawful is fundamentally flawed 2

3 because it is based upon an erroneous interpretation of BOP's statutory authority. In its legal opinion, OLC asserts that BOP's designation of a CCC as a substitute for imprisonment conflicts with the language of U.S.S.G. 5C1.1, which distinguishes between a sentence of "community confinement" and a sentence of "imprisonment." See OLC Memorandum for Deputy Attorney General Larry D. Thompson, 12/13/02. This opinion rests on the faulty premise that by authorizing promulgation of the Sentencing Guidelines, Congress intended to limit BOP's statutory designation authority. To the contrary, the plain language of the controlling statutes, as construed by various courts, as well as the pertinent legislative history, clearly indicate that Congress provided BOP with broad authority to designate a CCC as a place for imprisonment, unconstrained by the Sentencing Guidelines. Accordingly, this Court should hold invalid OLC's interpretation of BOP's designation authority and direct BOP to designate Mr. Ashkenazi in accordance with its well-established, published designation policies and procedures. B. The Plain Meaning And Legislative History Of The Controlling Statutes Give BOP Authority To Designate A CCC As A Place Of Imprisonment The statutory analysis begins with 18 U.S.C. 3621(b), which provides, in pertinent part: 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 minimal 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 3

4 (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 U.S.C. 3621(b). The statute also provides that, taking into consideration the same factors, BOP "may at any time,... direct the transfer of a prisoner from one penal or correctional facility to another." The plain language of 3621(b) gives BOP the authority to designate "any available penal or correctional facility... whether maintained by the Federal Government or otherwise" (emphasis added). See McCarthy v. Doe, 146 F.3d 118, (2d Cir. 1998) (BOP has authority under 3621(b) to consider prisoner's request for nunc pro tunc designation of state prison in which he was incarcerated as place of confinement for service of federal sentence of imprisonment). Although the statute does not define the terms "penal or correctional facility," the derivation of the statutory language clearly establishes that a CCC constitutes such a facility 1 Section 3621(b)'s predecessor statute, 18 U.S.C. 4082(b), which applied to commitments prior to November 1, 1987, read as follows: The Attorney General may designate as a place of confinement any available, suitable and appropriate institution or facility, whether maintained by the Federal Government or otherwise, and whether within or without the judicial district in which the person was convicted, and may at any time transfer a person from one place of confinement to another. 1 While the OLC s recent legal opinion assumes arguendo that a CCC may constitute a penal or correctional facility under 3621(b), it draws the contradictory conclusion that a CCC cannot constitute a place of imprisonment under that statute, See OLC Memorandum at 7 n. 8. OLC s current position also conflicts with an opinion it rendered in a992 in which it concluded that the plain language of 3621(b) granted BOP broad designation authority, without distinguishing between residential community facilities and other types of secure facilities. See Statutory Authority to Contract with the Private Sector for Secure Facilities, 16 Op. O.L.C. 65, (1992). 4

5 18 U.S.C. 4082(b). In 1965, Congress amended the statute to allow designation of a "facility" as well as an "institution" in specifying the types of places that could be designated for service of a sentence of imprisonment. Act of Sept. 10, 1965, Pub. L. No , 79 Stat. 674 (former 4082(b), reprinted in 18 U.S.C note). The amendment defined "facility" to "include a residential community treatment center." 4082(g) (former provision, reprinted in 18 U.S.C note). Thus, the predecessor statute to 3621(b) expressly authorized a direct designation to a CCC as a place of imprisonment. As part of the 1984 Sentencing Reform Act, 4082(b) was replaced by 3621(b), effective November 2, The reenacted statute transferred the authority to designate places of confinement from the Attorney General under the former provision directly to BOP under 3621(b). Morever, Congress changed the statutory language and substituted "penal or correctional facility" in the current statute for "institution or facility" in the former provision. Congress also deleted 4082(g) s definition of "facility." 2 Finally, the amended statute included a list of factors that BOP could consider in making designations. According to its legislative history, "[p]roposed 18 U.S.C. 3621(b) follows existing law.... After considering [specified] factors, the Bureau of Prisons may designate the place of imprisonment in an appropriate type of facility...." Sen. Judiciary Comm., "Comprehensive Crime Control Act of 1983," S. Rep , 98 th Cong., 1 st Sess., at (1983). Examination of the Sentencing Reform Act as a 2 In its 1992 legal opinion, OLC concluded that the deletion of the definition of "facility" in the amended statute indicated that Congress did not intend to distinguish between residential community facilities and other types of secure facilities OLC Mem. Op., pt. II. ("Because the plain language of section 3621(b) allows BOP to designate 'any available penal or correctional facility,' we are unwilling to find a limitation on that designation authority based on legislative history.") 5

6 whole indicates that imprisonment, as used in 3621(b), is to be distinguished from other types of sentences, such as probation or a fine. Under the Act, imprisonment covers various restrictions on a defendant s liberty, including time spent on furlough (18 U.S.C. 3622) and time spent in home confinement (18 U.S.C. 3624(c)). Neither the language nor legislative history of 3621(b) evinces a congressional intent to restrict BOP's authority to designate a CCC as an initial place of imprisonment. Therefore, it is to be inferred that Congress intended 3621(b) to continue BOP's broad designation authority. See Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 227 (1957) ("[I]t will not be interfered that Congress, in revising and consolidating the laws, intended to change their effect unless such intention is clearly expressed."). Given its derivation, the plain language of 3621(b) reflects BOP's continued authority to designate a CCC as a "correctional facility" to serve a sentence of imprisonment. See McCarthy, 146 F.3d at 118 ( 3621 was not intended to change pre-existing law with respect to the authority of the Bureau. ) (quoting Barden v. Keohane, 921 F.2d 476, 481 (3d Cir. 1990)). The insertion in the amended statute of the term "correctional facility" after the term "penal," clearly indicates that BOP's designation authority extends beyond "penal" facilities, to other types of "correctional" facilities, such as halfway houses, as places of imprisonment. Any other interpretation of the statute would render meaningless the term "correctional facility." See Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) ("In construing a statute we are obliged to give effect, if possible, to every word Congress used."). The Supreme Court's construction of 3621(b) as allowing initial designations to CCC's is consistent with the statute's plain meaning and legislative history. In Reno v. Koray, 515 U.S. 6

7 50, 58 (1995), the Court held that a defendant was not entitled to sentence credit under 18 U.S.C. 3585(b) for time spent on pretrial release in a halfway house. In finding that a defendant is not detained under the Bail Reform Act of 1984 until he is committed to the custody of the Attorney General, rather than when he is released on bail even on restrictive conditions, the Court noted that under 3585(a), a federal sentence does not commence until the defendant is received for transportation to or arrives at "the official detention facility at which the sentence is to be served." Id. at 58. Referring to 3621(b)'s language authorizing BOP to designate an appropriate "penal or correctional facility" for service of a sentence of imprisonment, the Court concluded that the term "official detention facility" in 3585(a) necessarily refers to "a correctional facility designated by [BOP] for the service of federal sentences...." Id. The Court denied sentence credit not because the defendant was in a halfway house but because he was released on bail and therefore not subject to BOP s control. Id. at Implicit in the Court's ruling is the recognition that a CCC is a correctional facility which BOP may designate as an initial place of imprisonment. The conclusion that 3621(b) authorizes BOP to designate a CCC as a place of imprisonment is reinforced by other statutory provisions governing BOP's designation authority. For example, 18 U.S.C. 3622(c) gives BOP authority to release a prisoner from his place of imprisonment for a limited period to "work at paid employment in the community while continuing in official detention at the penal or correctional facility...." Therefore, the work release privilege offered at a CCC is consistent with its designation as a "correctional facility." Another provision, 18 U.S.C. 3624(c), directs BOP "to the extent practicable," to assist prisoners who were not deemed suitable for initial CCC placement, for release during the last ten 7

8 percent of their sentence, not to exceed six months, by placing them in a CCC or in home confinement. Contrary to OLC's interpretation that the time limitations in 3624(c) restrict BOP's authority to designate a CCC as an initial place of imprisonment (OLC Memorandum, 12/13/02, at 6-7 & n. 6), this statutory provision directing BOP to facilitate the pre-release process has no bearing whatsoever on BOP's initial designation authority to utilize a CCC as a place of imprisonment. This conclusion is consistent with BOP's own interpretation of the ten percent restriction in 3624(c) as applying only to home confinement and not to a CCC, which qualifies under 3621(b) as a "penal or correctional facility." Bureau of Prisons Program Statement No ("Community Corrections Center (CCC) Utilization and Transfer Procedure"), 2, at 2 (4/30/93). According to the Program Statement's clear explanation: [T]he Bureau is not restricted by Section 3624(c) in designating inmates to a CCC and can place inmates in a CCC for more than the 'last ten per centum of the term' or more than six months if appropriate. P.S , 2, at 2. Accordingly, other statutory provisions relating to BOP s designation authority support the construction of 3621(b) as authorizing BOP to designate a CCC as an initial place of imprisonment. See Digital Equip. Corp. v. Desktop, Direct Inc., 511 U.S. 863, 879 (1994) ("[W]hen possible, courts should construe statutes... to foster harmony with other statutory and constitutional law."). C. BOP Has Consistently Interpreted Its Statutory Authority To Allow Designation Of A CCC As A Place Of Imprisonment At least as early as the 1965 amendment to former 4082(b), 3621(b)'s pre-sentencing Reform Act predecessor, and continuing until its recent implementation of a new rule in response to DOJ's directive, BOP construed the statutes governing its designation authority to authorize the designation of a CCC as a "penal and correctional facility" for service of a sentence of 8

9 imprisonment. See BOP Program Statements ("Community Corrections Center ("CCC") Utilization and Transfer Procedures"), 5, at 4 (12/16/98) (current version) (incorporating text consistent with prior versions, including earliest, P.S (4/30/93)). The Program Statement clearly explains that under 3621(b), "[a] CCC meets the definition of a 'penal or correctional facility.'" P.S , 5, at 4. Accord BOP Op. Mem ("Program Components in a Contract Community Treatment Center (CTC)"), 2, at 1 (7/20/88) ("occasionally offenders have been committed directly to [CTC's] to serve short sentences when courts recommend it... the number of such commitments may increase under the Sentencing Reform Act...."). In its 1998 "State of the Bureau" report, BOP noted that CTC's were used primarily for three types of offenders: Those nearing release from BOP institutions as a transitional service while the offender is finding a job, locating a place to live, and reestablishing family ties. Those under community supervision who need guidance in support of services beyond what can be provided through regular supervision. Those serving short sentences of imprisonment and terms of community confinement State of the Bureau, at 34, reprinted at Oversight Hearings on Corrections: Overcrowding and Alternatives to Incarceration, Hearings before the Subcommittee on Courts, Intellectual Property, and the Administration of Justice, House Committee on the Judiciary, 101st Cong., 1st Sess., July 27 and September 27, 1989, at 173. The report further indicated that each CTC provided two separate components within the facility a Pre-release Component, which assisted offenders transitioning from an institutional setting to the community, or as a resource while under supervision, and a Community Corrections Component, which was designed as a 9

10 "punitive sanction and was "more restrictive" because it required the offender to remain at the CTC, [e]xcept for employment and other required activities." Id. A recent BOP Program Statement reiterated its long-standing position that it had the discretion to designate a CCC as an initial place of imprisonment. See BOP Program Statement ("Security Designation and Custody Classification Manual"), ch. 4, at 2 (1999) (with 1/31/02 changes) ("DIRECT COMMITMENTS TO CCCs. Direct commitments to CCCs may be made on the court's recommendation. If an offender appears to be a candidate for a CCC and it appears that the court did not consider placement in a CCC, the CCM [Community Programs Manager] shall contact the court for concurrence of such placement."). Numerous BOP publications restated this position. See, e.g., P.S ("Community Corrections Manual"), at 1 (1/12/98) (indicating that "direct court commitments" occur where court has imposed sentence of one year or less, or longer with approval from Regional Designator, of confinement with recommendation sentence be served in CCC); Bureau of Prisons, "Judicial Resource Guide to the Federal Bureau of Prisons," at 16 (2000) (describing Direct Designation to a Community Correction Center"); Bureau of Prisons, "A Judicial Guide to the Federal Bureau of Prisons," at (1995) (indicating that under 3621, BOP determines, with court concurrence, whether defendant might appropriately be placed in CCC). There is no question that BOP's uniform construction of its statutory designation authority, which is consistent with and fully supported by the language and legislative history of 3621(b), has been that the statute authorizes designation to a CCC as an initial place of imprisonment. Through its program statements, manuals, and other publications, BOP's statutory construction has been "fully brought to the attention of the public and Congress," and because the latter has not sought to alter that interpretation although it has amended the statute in other 10

11 respects, then presumably the legislative intent has been correctly discerned." Bolden v. Blue Cross & Blue Shield Assoc., Inc., 848 F.2d 201, 209 (D.C. Cir. 1988) (quoting United States v. Rutherford, 442 U.S. 544, 554 n. 10 (1979)) (additional citations and internal quotations omitted). Amicus is unaware of any express congressional reservation or objection to BOP's statutory interpretation. In the absence of any such evidence, BOP's statutory interpretation "must be given great weight." Howe v. Smith, 452 U.S. 473, (1981). Because the plain language and legislative history of 3621(b) unambiguously express Congress's intent to authorize BOP to designate a CCC as an initial place of imprisonment, this Court is not necessarily required to decide whether it must defer to BOP's own interpretation of its statutory designation authority. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984) (in reviewing agency's construction of statute it administers, court first decides whether congressional intent is clear; if so, "that is the end of the matter...."). However, even assuming for purposes of this argument, that Congress's intent is not clear from the language and legislative history of 3621(b), BOP's uniform interpretation of the statute prior to December 2002, as set forth in program statements, manuals, and other publications, would be entitled to "some deference" if it is a "permissible construction of the statute." Reno v. Koray, 515 U.S. at (BOP's permissible statutory interpretation contained in program statement entitled to judicial deference) (quoting Chevron, 467 U.S. at 837). Given the derivation of the language of 3621(b) and its clear legislative history, BOP's consistent interpretation of the statute is not only permissible, but constitutes the only reasonable statutory construction. Thus, even if this Court finds the statute ambiguous as to BOP s designation authority, BOP's long-standing interpretation is entitled to judicial respect because it has "the power to persuade." Christensen v. Harris County, 529 U.S. 576, 587 (2000) (agency's policy 11

12 statements "entitled to respect" only to extent interpretations have "power to persuade") (additional citations and internal quotations omitted). In contrast, BOP's new interpretation of its designation authority is not entitled to any deference because it conflicts with Congress's unambiguous intent in authorizing BOP to designate a CCC as an initial place of imprisonment. See District of Columbia Hospital Assoc. v. District of Columbia, 224 F.3d 776, 780 (D.C. Cir. 2000) (court owes no deference to agency's contrary construction of unambiguous statute). Alternatively, assuming arguendo that 3621(b)'s language is ambiguous on this point, BOP's new interpretation is not a reasonable construction of the statute because it ignores the distinction between "penal and correctional facilities," as well as the clear legislative history authorizing initial designation to a CCC to serve a sentence of imprisonment. See Kimberlin v. DOJ, 150 F. Supp. 2d 36, (D.D.C. 2001) (BOP s opinion letter containing unreasonable interpretation of ambiguous statutory language lacked power to persuade and therefore not entitled to any judicial deference). Moreover, judicial deference to BOP's new rule is not required because its "procedure change" did not result from the exercise of its independent judgment in construing its statutory designation authority but, instead, was compelled by DOJ s erroneous statutory interpretation. Therefore, BOP's new interpretation is not entitled to any deference whatsoever. See Holland v. National Mining Association, 309 F.3d 808, 816 (D.C. Cir. 2002) (Chevron deference only applies to agency's "own reasoned judgment on the meaning of the statute."); Arizona v. Thompson, 281 F.3d 248, 254 (D.C. Cir. 2002) ("Deference to an agency's statutory interpretation 'is only appropriate when the agency has exercised its own judgment'....") (emphasis and original) (quoting Phillips Petroleum Co. v. FERC, 792 F.2d 1165, 1169 (D.C. Cir. 1986)). Under these circumstances, the court should reject BOP's compelled interpretation that the CCC cannot be designated as a place 12

13 of imprisonment and order it to implement its prior rule, consistent with the correct construction of its statutory authority. D. The Sentencing Guidelines Do Not Restrict BOP's Authority to Designate A CCC As a Place of Imprisonment In its recent memorandum, OLC concluded that the distinction drawn by the Sentencing Guidelines between a "sentence of imprisonment" and "community confinement" precludes BOP from designating a CCC as an initial place of imprisonment. Specifically, the OLC memorandum argues that under 5C1.1(d)(2) of the Guidelines, in imposing a Zone C split sentence, a sentencing court only has limited authority to include a period of community confinement as a condition of supervised release as part of a sentence of imprisonment, provided that at least onehalf of the minimum term of the applicable guideline range is satisfied by imprisonment. OLC Memorandum, 12/13/02, at 2-3. According to the OLC memorandum, 5C1.1 provides no authority for the sentencing court to otherwise substitute community confinement for any portion of a Zone C or Zone D sentence of imprisonment. Id. at 3. Relying upon that single guideline provision, the OLC memorandum concludes that BOP's policy of designating a CCC as a place to serve an entire Zone C split sentence or a Zone C or Zone D sentence of imprisonment, violates the Guidelines. Id. at 6-7. Contrary to OLC s interpretation, 5C1.1 merely constrains a sentencing judge s authority to regulate the place of incarceration when imposing a term of imprisonment. However, the guideline constrains the court s sentencing options, not BOP s designation authority. Although OLC's determination was based upon several cases holding that under 5C1.1(d), "community confinement" cannot constitute "imprisonment" for purposes of fulfilling the required imprisonment portion of a split sentence, see, e.g., United States v. Serafini, 233 F.3d 13

14 758, (3d Cir. 2000); United States v. Jalili, 925 F.2d 889, (6 th Cir. 1991), OLC does not cite any judicial decision invalidating BOP's policy of designating a CCC as a place of imprisonment under 3621(b). Contrary to OLC s interpretation, 5C1.1(d)(2) merely constrains a sentencing judge s authority to regulate the place of incarceration when imposing a term of imprisonment as a condition of supervised release as part of a split sentence. Moreover, other cases even two decided by the same court that decided Jalili cast serious doubt on OLC s conclusion. In United States v. Strozier, 940 F.2d 985, 988 (6 th Cir. 1991), the court held that the community confinement portion of a split sentence under 5C1.1(d)(2) is included within the definition of a sentence of imprisonment under 5D1.1(a) of the Guidelines, requiring a mandatory period of supervised release. The court found that community confinement is the equivalent of imprisonment because community confinement can be substituted for imprisonment under 5C1.1. Id. In United States v. Rasco, 963 F.2d 132, (6 th Cir. 1992), the Sixth Circuit interpreted a different guideline, 4A1.2(e)(1), and held that detention in a halfway house upon parole revocation constitutes a sentence of imprisonment for criminal history calculation purposes. In reaching that decision, the court limited both Jalili and Strozier to the definition of imprisonment in 5C1.1. Id. at 137. In words particularly applicable to the OLC s broad interpretation of 5C1.1's language, the court noted that the Guidelines caution against attempting to achieve definitional coherence across numerous provisions, and explicitly provide that, while [d]efinitions of terms also may appear in other sections[,]... [s]uch definitions are not designed for general applicability; therefore, their applicability to sections other than those expressly referenced must be determined on a case by case basis. Id. (quoting U.S.S.G. 1B1.1, comment. (n.2)). Thus, contrary to OLC s contentions, the Guidelines definition of 14

15 imprisonment is not consistent or controlling, and cannot be construed as a restriction on BOP s statutory designation authority. There is no indication in the Guidelines that the Sentencing Commission considered BOP's designation authority under 3621(b) or intended to restrict BOP's designation of CCC's as places of imprisonment. Indeed, the Sentencing Commission is only authorized by Congress to promulgate and interpret guidelines to accomplish the purposes of sentencing set forth in 18 U.S.C. 3553(a)(2). See 28 U.S.C. 991(b)(1)(A). Moreover, specific guidelines do not inform the proper construction of 3621(b) or the authority of BOP to designate an appropriate place of imprisonment for a Zone D sentence of a year and a day, like Mr. Ashkenazi's. The Sentencing Guidelines cannot and do not bind BOP's designation authority. In fact, the Sentencing Reform Act directs BOP to consider "any pertinent policy statements issued by the Sentencing Commission," as one of five factors to be considered in choosing a designation under 3621(b)(5). However, the statute makes no reference to any authority of the Commission to bar or otherwise restrict BOP's designation authority, by policy statement, guideline, or otherwise. See Halverson v. Slater, 129 F.3d 180, 185 (D.C. Cir. 1997) (Transportation Secretary's erroneous interpretation of statute conflicted with statutory construction principle that "mention of one thing implies the exclusion of another thing.") (additional citation and internal quotations omitted). In a joint report to Congress pursuant to 28 U.S.C. 994(q), the Sentencing Commission and BOP addressed the statutory mandate to consider inmate classification "in placing inmates in the least restrictive facility necessary to ensure adequate security." "Maximum Utilization Of Prisons Resources," at 1 (6/30/94). The joint report noted that CCC's provided a pre-release component and a community corrections component, the latter designed to be sufficiently 15

16 punitive to be a legitimate sanction,...." Id. at The Sentencing Commission certainly would have objected to BOP's well-established policy of designating a CCC as an initial place of imprisonment if it had reason to believe that the practice conflicted with the Guidelines or was otherwise unlawful. At a minimum, the Commission would have stated so in a policy statement pursuant to 3621(b)(5), as authorized by Congress. But, instead, the Commission has not criticized, objected to, or even called into question BOP's direct designation to a CCC as a place of imprisonment. For these reasons, the plaintiff is correct that DOJ s directive to BOP in this case to redesignate him from a CCC to a FPC was based upon a legally erroneous interpretation of BOP s statutory designation authority. II. RETROACTIVE APPLICATION OF BOP'S POLICY CHANGE WOULD VIOLATE PLAINTIFF'S RIGHT TO DUE PROCESS AND PRINCIPLES OF EQUITABLE ESTOPPEL Even if BOP s recent policy change is based upon a correct interpretation of 3621(b), to apply BOP's new rule to plaintiff retroactively would violate his right to due process of law and be inconsistent with principles of equitable estoppel. Judge Huvelle addressed such a claim in her recent decision in Culter v. United States, Cr. No , Civ. No (D.D.C. Jan. 24, 2003). The court in that case recognized that, "[e]ven if one accepts the argument that the [prior] policy was incorrect," due process issues arise when a correction of a sentencing mistake is applied retroactively. Slip op. at 10. After careful analysis, Judge Huvelle held that BOP could not retroactively apply its policy change to Culter, concluding that "[f]or the government to imprison petitioner merely because BOP was misguided about the scope of its authority and this misinterpretation was fostered and shared by both the Executive and Judicial branches for more 16

17 than fifteen years is simply arbitrary and unfair." Id. at 17. Judge Huvelle recognized the general rule that the government may correct its mistakes, such as misinterpretation of applicable law, when they are discovered. But the Culter court also recognized that government officials may be estopped when such corrections "'involve[] prejudice and harm beyond frustrated expectations,'" id. at (quoting Lerner v. Gill, 751 F.2d 450, 459 (1 st Cir. 1985)), and that "belated correction of a sentencing mistake can be 'so unfair that it must be deemed inconsistent with fundamental notions of fairness embodied in the Due Process Clause.'" Id. at 11 (quoting DeWitt v. Ventetoulo, 6 F.3d 32, 35 (1 st Cir. 1993)). Citing both due process and equitable estoppel cases, Judge Huvelle concluded that, "[w]hichever rubric is applied, the Court is of the opinion that this is the unusual case where the government's longstanding alleged misinterpretation of the law, and the reliance induced by the misrepresentation, now precludes the government from retrospectively correcting its mistake by sending petitioner to prison." Id. at 12. The Court in DeWitt set out a non-exclusive list of factors bearing on due process claims 3 of this type: the lapse of time between the mistake and the attempted increase in sentence, whether the defendant contributed to the mistake and the reasonableness of his intervening expectations, the prejudice worked by the change, and the diligence exercised by the government in seeking the change. 6 F.3d at 35. As Judge Huvelle noted in considering these factors in 3 The government argues that because BOP has discretion in its designation decisions there is no constitutionally protected liberty interest in this case. Govt. Mem. in Support of Motion to Dismiss at Obviously, a defendant has a liberty interest in not being sent away to prison. The government's argument attempts to "have it both ways" by suggesting that a halfway house and a prison are just interchangeable forms of imprisonment and that BOP therefore has complete discretion to transfer Mr. Ashkenazi from one to the other, when the entire reason for Mr. Ashkenazi's proposed transfer is BOP's determination that a halfway house is not imprisonment and that it therefore does not have discretion to designate him there. 17

18 Culter, BOP's allegedly erroneous policy was "in effect without interruption for over fifteen years." Slip op. at 12. The government made no attempt to correct its supposed error until after BOP had designated Mr. Ashkenazi to serve his sentence at a community confinement facility and he had actually begun serving that sentence. As in Culter, Mr. Ashkenazi in no way contributed to the alleged mistake and his expectations that BOP's long-standing policy would govern were reasonable. Indeed, attached to the Culter opinion is a plea agreement from this jurisdiction in which the U.S. Attorney's Office equated imprisonment and community confinement and agreed not to oppose community confinement for a Zone D offender at the same offense level as plaintiff Ashkenazi. See Culter, Attachment A, 8(g) ("Should the Court determine that a sentence of twelve months under level thirteen of Zone D is appropriate the government will not oppose a defense request that imprisonment be served in a community confinement facility."). In addition, as the Witt court noted, "due process requires a weighing not only of the defendant's interest in finality, but of the state's interest in correcting the error." 6 F.3d 35. Here, the government asserts that community confinement designations for sentences of imprisonment under Zones C and D are illegal, yet it is not attempting to revoke the designations of everyone serving such a sentence. Rather, the government is choosing to correct the supposed illegality only in cases where the defendant has more than 150 days remaining on his sentence. As a result, according to BOP's representations in the Culter case, it is choosing to enforce its new policy retroactively against only 132 inmates nationwide. Culter, slip op. at 9 n.3. The government's decision to enforce the new policy only in part pursuant to an arbitrary cutoff (for which BOP was unable to offer any rationale in Culter) suggests that the government's interest in enforcing its new policy is not particularly compelling. Finally, in this case, as in Culter, and unlike in Davis v. Moore, 772 A.2d 204 (D.C. 2001) 18

19 (en banc), Mr. Ashkenazi can show actual tangible prejudice from the policy change, beyond mere dashing of expectations. Davis involved a challenge by a group of D.C. inmates who had been reimprisoned following revocation of their parole. Although they had been told by D.C. authorities pursuant to a then-existing regulation that they would get credit for their so-called "street time," their sentences were recalculated to eliminate such street time after the D.C. Court of Appeals invalidated the regulation in U.S. Parole Commission v. Noble, 693 A.2d 1084 (D.C. 1997). The Court in Davis held that the retroactive application of Noble did not violate due process where the Noble decision had been entirely forseeable and concluded that "the mistaken representations of officials does not without more" give rise to a due process claim. 772 A.2d at 219. But here, as in Culter, there is "more." In Culter, Judge Huvelle found actual prejudice because her sentencing decision "would undoubtedly have been different" if she had known that BOP policy she was relying on would be reversed as illegal. Slip op. at 15. Here, Mr. Ashkenazi's decision to accept the Level 13 plea offer (which required a departure waiver) rather than the Level 15 plea offer (which carried the possibility of a departure to Zones B or C), would undoubtedly have been different if he had known that the policy he was relying on would be reversed. According to the affidavit of Mr. Ashkenazi's trial counsel, Mr. Bohrer, "[d]uring plea negotiations with the government, the government provided us with two options for the plea agreement: (1) an agreed upon offense level 15, with permission to request a downward departure based on extraordinary family circumstances, and (2) an agreed upon offense level 13, with no permission to argue for a downward departure." Bohrer Aff. 3. Mr. Bohrer told Mr. Ashkenazi that, based on the then-applicable BOP policy, if he was sentenced at the low end of the level 13 19

20 range, Mr. Bohrer would request that the court recommend to BOP that he serve his sentence in community confinement. Id. at 4. Mr. Ashkenazi decided to accept the Level 13 plea and waive his right to seek a downward departure based on this understanding that "if I pleaded guilty to a Level 13 felony, I might still be assigned to serve my full sentence in a halfway house." Ashkenazi Aff. 4. This information was accurate at the time and indeed BOP did designate Mr. Ashkenazi to serve his full sentence in a CCC. Id. at 10. Mr. Ashkenazi's affidavit states plainly that "[h]ad I believed that the Bureau of Prisons could not designate me for service of the sentence at a CCC, I would not have agreed to plead guilty to a Level 13 offense without being permitted to seek a downward departure." Id. at 8. The government argues that because Mr. Ashkenazi knew that "he might indeed face incarceration in a prison facility for the entirety of his sentence," his "calculation in accepting and abiding by the plea bargain was indeed based on fully informed awareness of all the possibilities." Govt. Opp. to Preliminary Inj. at 7 n.3 (emphasis added). This argument is wrong. He knew the downside possibilities of his plea but he was materially misled by the government's own policies in existence at the time of his plea as to the upside possibilities. He understood that there was a possibility he could serve a Level 13 sentence in a halfway house when in fact there was no such possibility under the policy change. Thus, he did not understand "all the possibilities." This is critical to Mr. Ashkenazi's showing of actual prejudice because plea agreements are calculated risks and defendants are entitled to make an intelligent choice that is not materially affected by inaccurate information from their adversary. Here, believing -- based on the longstanding policy of the same Department of Justice he was bargaining with -- that a Level 13 plea would afford him a chance at avoiding prison, Mr. Askenazi accepted it over a Level 15 plea, 20

21 which would have given him a chance to avoid prison only if the court granted him a departure. Based on the information he had -- that community confinement was possible at Level he made an intelligent choice and it, in fact, paid off. If he had known the true facts -- that BOP would determine that community confinement was not possible at Level the only choice that would have given him a chance at avoiding prison would have been the Level 15 offer. Under BOP's current policy, the Level 13 deal guaranteed prison for months. The Level 15 deal carried the possibility of 6 more months of prison but also carried the possibility of a departure to Zone B or Zone C, in which case he could do all or part of his sentence in a halfway house. Under these facts, Mr. Ashkenazi has shown real tangible prejudice resulting from his reliance on the then-controlling BOP policy. The D.C. Court of Appeals found no actual prejudice in Davis but that case is clearly distinguishable from this one. The Davis court declined to find actual prejudice based on the theoretical possibility that some defendants might not have pled guilty and that some parolees might not have violated their parole or might have defended more vigorously against revocation if they had known they would lose street time upon revocation. The court found these scenarios "purely hypothetical" and "highly improbable." Davis, 772 A.2d at 221 n.13. The opposite is true here. Mr. Ashkenazi's plea calculus was real, not "hypothetical." His former lawyer has submitted an affidavit establishing that Mr. Ashkenazi was offered two very specific plea options and that the lawyer specifically informed him that it was possible BOP would order him to serve a Level 13 sentence in a halfway house. Mr. Ashkenazi has proffered that he would not have accepted the Level 13 deal, and waived departure, if he had known this information was wrong. Nor is Mr. Ashkenazi's assertion in this regard "improbable." As the government has acknowledged, "harms to family and business are bases upon which a criminal defendant can 21

22 argue for downward departure under the Sentencing Guidelines." Govt. Opp. to Preliminary Inj. at 7. Thus, Mr. Ashkenazi was giving up a genuine chance at a Zone B or Zone C sentence by accepting the Level 13 deal. His assertion that he would not have done so if he had understood that there was no possibility of serving a Level 13 sentence in a halfway house is consistent with common sense and with his goal of avoiding irreparable harm to his family and business. The Davis court also relied on the fact that "it was no secret" that street time might be forfeited inasmuch as that was how federal authorities had been calculating D.C. sentences. Here, as Judge Huvelle persuasively documented, BOP's policy had been in place for years and its reversal came as a surprise to all. Finally, the Davis court discounted the possibility that some Superior Court judges might have imposed lighter sentences had they known that parole revocation would entail loss of street time. But the street time factor, contingent on future parole violation and revocation, and therefore extremely remote from the judge's original sentencing calculus, is not at all comparable to the policy at issue here, which was directly material to the harshness of Mr. Ashkenazi's impending sentence and therefore to his choice of plea options. Mr. Ashkenazi relied to his detriment on the government's old policy in waiving departure and accepting the Level 13 plea offer and therefore, like the defendant in Culter, and unlike the defendants in Davis, has shown actual tangible prejudice resulting from the retroactive reversal of that policy. For these reasons, the proposed transfer would violate due process and BOP should be equitably estopped from now sending Mr. Ashkenazi to prison. 4 4 The government argues that OPM v. Richmond, 496 U.S. 414, (1990), stands for the proposition that "an official representation lacking statutory authority cannot estop the government." Govt. Mem. in Support of Motion to Dismiss at 25. That is not quite right. The (continued...) 22

23 III. BOP S NEW RULE VIOLATES THE EX POST FACTO CLAUSE OF THE CONSTITUTION AND OTHER RULES THAT SIMILARLY PROHIBIT RETROACTIVE IMPLEMENTATION OF NEW LAWS A. The Ex Post Facto Clause Prohibits Retroactive Implementation of the New Rule BOP s new rule is invalid because it violates the Ex Post Facto Clause of the Constitution. To fall within the ex post facto prohibition, a law must be retrospective that is, it must apply to events occurring before its enactment and it must disadvantage the offender affected by it. Lynce v. Mathis, 519 U.S. 433, 441 (1997) (citing Weaver v. Graham, 450 U.S. 24, 29 (1981)). Even if the new rule were a valid interpretation of 18 U.S.C. 3621, BOP would be required to apply it prospectively. Instead, BOP chose to apply it retrospectively, electing to transfer all individuals designated to CCCs with 150 days or more remaining on their sentences to federal prisons. Consistent with the arguments made by Mr. Ashenkazi, the Court in Cutler found that if BOP s prior rule was valid, as we argue, its new rule raises obvious ex post facto concerns.... Culter, slip op. 4 (...continued) Richmond Court made clear that that is ordinarily the rule but left open the possibility that estoppel against the government might be appropriate in some circumstances. The Court was careful to limit its holding only to "estoppel as a basis for money claims against the Government," holding that such claims run afoul of the Appropriations Clause of the Constitution when the payment sought is contrary to a statutory appropriation. This case is analogous to Moser v. United States, 341 U.S. 41 (1951), in which the Supreme Court held that Moser, a Swiss citizen applying for U.S. citizenship, could not be treated as having waived his right to be naturalized by applying for exemption from military service where the State Department has lulled [him] into misconception of the legal consequences of applying for the exemption. Id. at 46. Although the statute plainly required a choice between exemption and citizenship, because of the misleading circumstances of this case, [Moser] never had an opportunity to make an intelligent election between the diametrically opposed courses required as a strict matter of law. The Court therefore found Moser eligible for citizenship despite the statute s clear mandate to the contrary. Similarly, here, due to BOP s long-standing policy, Mr. Ashkenazi never had an opportunity to make an intelligent choice between the government s two plea offers and he should be permitted the benefit of the old policy even if this Court believes that policy violates the Sentencing Guidelines. 23

24 at 10 n.6. The government argues that transfer from a CCC to prison under the new rule does not constitute punishment for purposes of the Ex Post Facto Clause. Gov t Mem. in Support of Motion to Dismiss at Contrary to the government s argument, however, a new law may clearly be prohibited as ex post facto even if it alters punitive conditions outside the sentence. Weaver, 450 U.S. at 32. A new rule mandating imprisonment instead of community confinement is clearly more onerous than the prior law, Miller v. Florida, 482 U.S. 423, 431 (1987) (citing Dobbert v. Florida, 432 U.S. 282, 294 (1977)), and disadvantages Mr. Ashenkazi, along with other similarly situated federal offenders. As noted in Weaver, 450 U.S. at 32, the Supreme Court has prohibited as ex post facto the retroactive application of a statute mandating solitary confinement prior to execution. See In re Medley, 134 U.S. 160, 171 (1890) ( the considerations which we have here suggested show that the solitary confinement to which the prisoner was subjected by the statute of Colorado of 1889, and by the judgment of the court in pursuance of that statute, was an additional punishment of the most important and painful character, and is therefore forbidden by [the ex post facto] provision of the constitution of the United States ); Holden v. Minnesota, 137 U.S. 483, 494 (1890) (provision of act requiring solitary confinement applies only to future offenses, not to those committed prior to its passage, but record did not show that defendant was in fact held in solitary confinement). Consistent with those rulings, the transfer at issue here constitutes punishment that is more severe than that previously imposed for purposes of the Ex Post Facto Clause. The ex post facto prohibition is applicable not only to new legislation but also to new administrative rules adopted by an agency pursuant to delegated authority. See, e.g., Smith, 223 F.3d at 1194; United States v. Ellen, 961 F.2d 462, 465 (4 th Cir. 1992); Knox v. Lanham, 895 F. Supp. 750, (D. Md. 1995), aff d, 76 F.3d 377 (4 th Cir. 1996); Davis v. Moore, 772 A.2d 204,

25 (D.C. 2001) (en banc). Congress delegated the authority to promulgate rules for the management of federal penal and correctional institutions to the Attorney General, who delegated that authority in turn to BOP. 18 U.S.C. 4001(b)(1); 28 C.F.R. 0.96(o). An administrative rule that is interpretive in nature or serves as a guide, or allows for flexible application, is not subject to ex post facto analysis, see, e.g., Ellen, 961 F.2d at 465; Knox, 895 F. Supp. at 756, but BOP applies its new rule to all inmates who were designated to CCCs under BOP s prior policy with more than 150 days remaining on their sentences as of the cut-off date. Thus, the new rule permits no exercise of discretion and is not interpretive, nor does it serve as a guide. See, e.g., Knox, 895 F. Supp. at 756 (Maryland Division of Correction directive constitutes law under Ex Post Facto Clause because it is not a guide, permits no discretion, and has inflexible application). Furthermore, whether the agency itself characterizes its new rule as interpretive cannot be accepted as conclusive because such a result would enable the [agency] to make substantive changes in the guise of clarification. Smith, 223 F.3d at 1195 (citing United States v. Saucedo, 950 F.2d 1508, (10 th Cir. 1991), overruled on other grounds by Stinson v. United States, 508 U.S. 36 (1993)). In these circumstances, the new policy, implemented pursuant to DOJ s directive, constitutes an inflexible rule that is equivalent to new legislation for purposes of the Ex Post Facto Clause. This case differs from Davis because in that case, the D.C. Court of Appeals in Noble had previously determined the correct interpretation of a statute. Davis, 772 A.2d at 216. Here, BOP s self-described correction of its prior interpretation of the statute has not been reviewed by any controlling court. The new rule is unlawful because, as explained above, BOP s prior interpretation of the statute was, in fact, correct. In any event, no controlling judicial decision governs this case. Even if this Court were to view 3621 to be ambiguous, BOP s new rule would still violate the Ex Post Facto Clause. See, e.g., Knuck v. Wainright, 759 F.2d 856, (11 th Cir. 1985) (invalidating 25