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No.

IN THE SUPREME COURT OF THE UNITED STATES

CHRISTOPHER CLOSE,
Petitioner,

V.

JEFF E. THOMAS,

Warden,

Respondent.

MOTION FOR LEAVE TO PROCEED IN FORMA PA UPERIS

The petitioner, Christopher Close, requests leave to file the attached petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit without prepayment of costs and to proceed informa pauperis pursuant to Rule 39.1 of this Court and 18 U.S.C.

3006A(d)(7).

The petitioner was represented by counsel appointed under the Criminal Justice Act in the District of Oregon and on appeal in the Ninth Circuit Court of Appeals, and therefore no affidavit is required. Respectfully submitted this 9th day of Jan r
2012.

Stephen Sady Attorney for Petitioner

No.

IN THE SUPREME COURT OF THE UNITED STATES

CHRISTOPHER CLOSE, Petitioner,


V.

JEFF E. THOMAS, Warden, Respondent.

On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Stephen R. Sady Chief Deputy Federal Public Defender 101 SW Main Street, Suite 1700 Portland, Oregon 97204 (503) 326-2123 Attorney for Petitioner

QUESTION PRESENTED In 1994, Congress created an incentive for nonviolent offenders, administered by the Bureau of Prisons, that provides for a sentence reduction of up to one year for successful completion of inprison residential substance abuse treatment. 18 U.S .C. 3621 (e)(2)(B). In the adjacent subsection, Congress requires that priority for the treatment program be accorded based on an eligible prisoners proximity to release date. 18 U.S.C. 3621(e)(1)(C). After initially construing

proximity to release date as including the potential 3621(e) sentence reduction, the Bureau of Prisons changed its interpretation of the statute to incorporate only consideration of the date of release with good time credits under a statute enacted in 1984. 18 U.S.C. 3624(a). The Ninth Circuit supported this construction as unambiguous, even though the changed interpretation created a troubling situation that delayed nonviolent prisoners entry into the program, thereby reducing or even eliminating the sentence reduction incentive. The question presented is: Where 18 U.S.C. 3621(e)(1)(C) requires that prisoners participation in treatment be prioritized by proximity to release date, whether the statute can be construed to include the potential sentence reduction for nonviolent offenders under 18 U.S.C. 362 1(e)(2)(B), thereby avoiding what the Ninth Circuit termed a troubling situation that diminishes or outright eliminates the sentence reduction incentive.

TABLE OF CONTENTS Page


Table of Authorities 1. 2. 3. 4. Opinions Below Jurisdictional Statement Constitutional And Statutory Provisions Statement Of The Case Reasons For Granting The Writ The Court Should Grant The Writ Of Certiorari Because The Ninth Circuits Construction Causes Extraordinary Harm To Large Numbers Of Prisoners, At Great And Unnecessary Expense To Taxpayers, And Thwarts Explicit Congressional And Agency Policies This Courts Governing Rules of Statutory Construction Require Interpretation Of The Statute To Include The 362 1(e) Sentence Reduction In Determining The Proximity To Release. 1. The Ninth Circuit Failed To Follow This Courts Precedent On Statutory Construction That Requires That The Relevant Words Be Given Their Ordinary And Natural Meaning In Their Statutory Context The Ninth Circuit Should Have Rejected An Interpretation That Is At Odds With Congressional Purposes The Court Should Expressly NalTow The Canon Regarding Similar Language To Contemporaneous Statutes Where More Directly Relevant Canons Do Not Apply iii 1 2 2 5 6

5.
A.

B.

10

2.

13

3.

15

C.

Especially Where Both The BOP And The District Court Previously Construed Proximity To Release Date To Include The Section 362 1(e) Sentence Reduction, The Court Should, lii The Alternative, Apply Tie-Breaker Rules Of Statutory Construction 1. The Legislative History Supports Inclusion Of The Reduction In Calculating Proximity To Release

18

3621(e) Sentence
18

2.

Ambiguity In This Penal Statute Should Be Resolved By The Rule Of Lenity 22

6.

Conclusion

23

Certificate of Service and Mailing

INDEX TO APPENDIX
Appendix A Appendix B Appendix C AppendixD Appendix E District Court opinion (9/20/10) Ninth Circuit opinion (8/3/11) Denial of Rehearing and Rehearing En Banc (10/12/11) 18U.S.C.3621(e) Bureau of Prisons Program Statement 5880.28 (May 25, 1995) (as amended) (excerpts) Bureau of Prisons Program Statement 5330.10 (October 9, 1997) (excerpts) Bureau of Prisons Program Statement 5330.11 (Mar. 16, 2009) (excerpts) Bureau of Prisons Program Statement 5331.02 (Mar. 16, 2009) (excerpts) District Court opinion in Thurman v. Thomas, No. 06- 1400-HA, 2009 WL936663 (D. Or. 2009)
. . .

1 6
13 14

17 28 30

Appendix F Appendix G Appendix H Appendix I

..

46

59

11

TABLE OF AUTHORITIES Page FEDERAL CASES


Arthur Andersen v. United States, 544 U.S. 696 (2005) Atlantic Cleaners & Dyers, Inc. v. United States, 286U.S. 427 (1932) Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003) Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438 (2002) Bifulco v. United States, 447 U.S. 381 (1980) Burns v. United States, 501 U.S. 129 (1991) Carlsbad Tech., Inc. v. HIF Bio, Inc., 129 S. Ct. 1862 (2009) Chevron, US.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) Clark v. Martinez, 543 U.S. 371 (2005) Clinton v. City of New York, 524 U.S. 417 (1998) Close v. Thomas, 653 F.3d 970 (9th Cir. 2011) Crandon v. United States, 494 U.S. 152 (1990) Dean v. United States, 129 S. Ct. 1849 (2009)

10

15

22

10

22

22

11

23

22

15

1,6

23

11

111

Dolfi v. Pontesso, 156 F.3d 696 (6th Cir. 1998) Environmental Defense v. Duke Energy Corp., 549 U.S. 561 (2007) Fernandez-Vargas v. Gonzales, 548 U.S. 30(2006) Fogerly v. Fantasy, 510 U.S. 517 (1994) Judulang v. Holder, 132 S. Ct. 476 (2011) Leocal v. Ashcroft, 543 U.S. 1(2004) Metropolitan Life Insurance Company v. Taylor, 481 U.S. 58 (1987) Motor Vehicle Manufacturers Association of US., Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983) Nken v. Holder, 129 S. Ct. 1749 (2009) Northcross v. Board of Education, 412U.S. 427 (1973) Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986) Perry v. Commerce Loan Co., 383 U.S. 392 (1966) Robinson v. Shell Oil Co., 519 U.S. 337 (1997) Russello v. United States, 464 U.S. 16 (1983)

23

15, 16

18

16

11

11

16

21

12

16,17

18

13

12, 16

10, 17

iv

Secy of the Interior v. W. Oil & Gas Association, 464 U.S. 312 (1984) Skidmore v. Swift & Co., 323 U.S. 134 (1944) Skilling v. United States, 130 S. Ct. 2896 (2010) Smith v. City of Jackson, Miss., 544 U.S. 228 (2005) Thurman v. Thomas, 2009 WL936663 (D. Or. 2009) TRW Inc. v. Andrews, 534U.S. 19 (2001) United States v. America Trucking Ass ns., 310 U.S. 534 (1940) United States v. Granderson, 511 U.S. 39(1994) United States v. McGoff, 831 F.2d 1071 (D.C. Cir. 1987) United States v. Novak, 476 F.3d 1041 (9th Cir.2007) United States v. R.L. C., 503 U.S. 291 (1992) United States v. Santos, 553 U.S. 507 (2008) FEDERAL STATUTES AND MATERIALS
18 U.S.C. 18 U.S.C.

21

23

22

16

5,6,9

11

..

13

11,22

...

23

6, 16, 17

18, 22

22

3006A(d)(7) 3621(e)(2) 3624(a)


V

1
passim passim

18 U.S.C.

28 U.S.C. 1254(1) (2008) 103 Cong. Rec. H8728 138 Cong. Rec. S8001-02 139 cong. Rec. H6956-02 139 cong. Rec. H8723-01 139 cong. Rec. 512388-04 l55cong.Rec.H13631-03 Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, Title II, 212(a)(2), 98 Stat. 2008 (1984) Consolidated AppropriationsAct of 2010, Pub. L. 111-117, 123 Stat. 3034 (Dec. 16, 2009) Crime Control Act of 1990, Pub. L. No. 101-647, 2903, 104 Stat. 4789, 4913 (1990) Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 32001, 108 Stat. 1796, 1896 (1994) H.R. Rep. No. 103-711 (Conf. Rep.), reprinted in 1994 U.S.C.C.A.N. 1839, 1849

2 19 19 20 20 20 21

8, 20, 21 2

2 20 8

H.R. Rep. No. 111-366 (2009), reprinted in 2010 U.S.C.C.A.N. 1105, 1181
Annual Determination of Average Cost of Incarceration, 76 Fed. Reg. 57081-02 (Sept. 15, 2011)

MISCELLANEOUS
2B Norman I. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction 16 53:5(7thed.2011) Antonin Scalia, A Matter of Interpretation (Princeton University Press 1997) Federal Bureau of Prisons, State of the Bureau 2009 Senate Office Of The Legislative Counsel, Legislative Drafting Manual 105(a) (2000) vi
....

17
7 10

No.

IN THE SUPREME COURT OF THE UNITED STATES

CHRISTOPHER CLOSE, Petitioner,


V.

JEFF E. THOMAS, Warden, Respondent.

On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit

The petitioner, Christopher Close, respectfully requests that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Ninth Circuit entered on August 3, 2011, affirming the denial of habeas corpus relief.

1.

Opinions Below
The District Court denied habeas corpus relief in an unpublished opinion on September 20,

2010 (Appendix A). The Ninth Circuit affirmed the denial of habeas corpus relief in a published opinion on August 3, 2011. Close v. Thomas, 653 F.3d 970 (9th Cir. 2011) (Appendix B). The Ninth Circuit denied panel and en banc rehearing on October 12, 2011 (Appendix C).

2.

Jurisdictional Statement This Courts jurisdiction is invoked under 28 U.S.C. 1254(1) (2008).

3.

Constitutional And Statutory Provisions In 1984, the Sentencing Reform Act included abolition of parole and establishment of the

date of release as the full term less any time credited toward the service of the prisoners sentence as provided in the good time credit provisions of the statute. Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, Title II, 212(a)(2), 98 Stat. 2008 (1984) (codified at 18 U.S.C.

3 624(a)). In 1990, Congress amended the Sentencing Reform Act to mandate that the BOP make
available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse, including in-prison residential treatment. Crime Control Act of 1990, Pub. L. No. 101-647, 2903, 104 Stat. 4789, 4913 (1990) (codified at 18 U.S.C. 3621(b)). In 1994, Congress enacted 18 U.S.C. 3621(e) to provide nonviolent prisoners with an early release incentive because too few prisoners volunteered to undergo the intensive residential drug program. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 32001, 108 Stat. 1796, 1896 (1994) (codified at 18 U.S.C. 3621(e)) (Appendix D). The provision of 362 1(e) related to phase-in of the residential program states: In order to carry out the requirement of the last sentence of subsection (b) of this section, that every prisoner with a substance abuse problem have the opportunity to participate in appropriate substance abuse treatment, the Bureau of Prisons shall, subject to the availability of appropriations, provide residential substance abuse treatment (and make arrangements for appropriate aftercare)

(C) for all eligible prisoners by the end of fiscal year 1997 and thereafter, with priority for such treatment accorded based on an eligible prisoners proximity to release date.

18 U.S.C. 3621(e)(1) (emphasis added). The immediately adjacent subsection of 3621(e)

provides for a reduction of the period a prisoner remains in custody of up to one year upon successful completion of the program: (A) Generally. Any prisoner who, in the judgment of the Director of the Bureau of Prisons, has successfully completed a program of residential substance abuse treatment provided under paragraph (1) of this subsection, shall remain in the custody of the Bureau under such conditions as the Bureau deems appropriate. If the conditions of confinement are different from those the prisoner would have experienced absent the successful completion of the treatment, the Bureau shall periodically test the prisoner for substance abuse and discontinue such conditions on determining that substance abuse has recurred.

(B) Period of custody. The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.

18 U.S.C. 3621(e)(2) (emphasis added). The definitional sections of 3621(e) address residential substance abuse treatment, eligible prisoner, and aftercare: (5) Definitions.

As used in this subsection

(A) the term residential substance abuse treatment means a course of individual and group activities and treatment, lasting at least 6 months, in residential treatment facilities set apart from the general prison population (which may include the use of pharmocotherapies, where appropriate, that may extend beyond the 6month period); (B) the term eligible prisoner means a prisoner who is

(i) determined by the Bureau of Prisons to have a substance abuse problem; and (ii) willing to participate in a residential substance abuse treatment program; and (C) the term aftercare means placement, case management and monitoring of the participant in a community-based substance abuse treatment program when the participant leaves the custody of the Bureau of Prisons.

Initially, the BOP adopted program statements that required BOP personnel to make an early determination of 3261(e) sentence reduction eligibility and to prioritize participation by the release date assuming that the prisoner would receive the maximum one year reduction: The formula for computing a tentative 3621E Release Date, based on the tentative one year sentence reduction, is a simple arithmetical calculation. The formula is: Projected SRD minus one year = Tentative 3621E Release Date.

SENTRY is programmed to subtract one year from the projected SRD to produce the tentative 3621E Release Date. BOP Program Statement 5880.28 at 1-78C to 78D (June 30, 1997) (emphasis in original) (SRD means Statutory Release Date). Appendix at 19-20. The rules provided that prisoners were selected for program admittance based upon the time remaining on their sentence, which incorporated the Tentative 3621E Release Date. BOP Program Statement 5330.10 Ch. 5 at 3 (May 25, 1995) (Appendix at 29). In 2009, the BOP significantly revised its program statements. BOP Program Statement 5330.11 (March 16, 2009) (Appendix G); BOP Program Statement 5331.02 (Mar. 16, 2009) (Appendix H). As pertinent here, the BOP no longer interviewed prisoners for the residential drug abuse program (RDAP) and made early release determinations when the prisoner tendered an application, but would conduct interviews based on the inmates proximity to release, ordinarily no less than 24 months from release. BOP Program Statement 5330.11, at 13 (Mar. 16, 2009) (Appendix at 36). The determination of a prisoners eligibility for RDAP became a two-step process. A preliminary eligibility determination is made during the clinical interview, followed by a review of the prisoners current offense and criminal history. Only then is the prisoners RDAP

eligibility status entered into the BOP s computer system. A prisoners projected release date is not changed to a 3621(e) release date until a qualified prisoner begins RDAP. 4. Statement Of The Case This case arose when the BOP changed its interpretation of the proximity to release phrase in 18 U.S.C. 3621(e)(1)(C). When the BOP stopped including the 3621(e) sentence reduction, many prisoners had their sentence reductions reduced

and sometimes eliminated

because they

were ranked on the wait list according to their good time release date and could not be timely placed in the program. In the initial litigation, prisoners at the Federal Correctional Institution at Sheridan petitioned for and won habeas corpus relief because proper statutory construction required that the

3621(e) sentence reduction be counted in determining proximity to release, thereby allowing


eligible prisoners to enter the program sooner: [P]roper statutory construction compels the conclusion that the BOP is required to perform wait list calculations that include the prisoners projected 3621(e) release date. Failing to do so currently results in a significant diminution or the outright elimination of the statutorily created incentive of sentence reductions for prisoners who seek and complete RDAP.
Thurman v. Thomas, No. 06-1400-HA, 2009 WL 936663, at *4 (D. Or. 2009) (Appendix at 62).

In the present litigation, Mr. Close is the lead petitioner for nine other consolidated cases who challenged the BOP s continuing refusal to include the potential 3621(e) sentence reduction in determining the proximity to release. The district court first found that its prior ruling in Thurman was neither binding nor dispositive. Appendix at 3. On the statutory issue, the district court found in the present cases that proximity to release date in 3621(e) must be construed in accordance with the definition of date of release provided in 3624(a), which was enacted years earlier.

On appeal, the Ninth Circuit rejected the petitioners arguments based on the plain meaning of proximity to release, on the context of the phrase given the proximity of subsections (e)(1) and (e)(2) of 3621, and on the legislative purposes thwarted by the BOPs interpretation. Instead, the Ninth Circuit relied on a canon of construction that gave the same meaning to similar terms: Courts generally interpret similar language in different statutes in a like manner when the two statutes address a similar subject matter. United States v. Novak, 476 F.3d 1041, 1051 (9th Cir. 2007) (en banc). Therefore, we apply 3624(a)s definition of date of release to the nearly identical term release date in 3621(e)(1)(C). Close, 653 F.3d at 975. Despite the BOPs different construction for over a decade, and the district courts earlier opposite construction, the Ninth Circuit found no ambiguity and therefore did not follow rules of construction, such as the rule of lenity, to resolve statutory uncertainty. Id. Nonetheless, the court recognized the incongruity of a statutory direction that, as applied, undermined the statutory incentive, calling for legislative or executive action to address the troubling situation created by its statutory interpretation. We note, however, that BOPs administration of RDAP, combined with the programs insufficient capacity, has created a troubling situation that calls for a legislative or regulatory remedy. As the district court observed in Thurman, the current system results in a significant diminution or the outright elimination of the statutorily created incentive of sentence reductions for prisoners who seek and complete RDAP. 2009 WL 936663, at * 4. Nonetheless, given the text of 18 U.S.C. 3621(e)(1)(C) and 3624(a), Petitioners challenge to the RDAP priority scheme adopted by BOP must necessarily fail. Close, 653 F.3d at 976. 5. Reasons For Granting The Writ The Court should grant certiorari because, by reading the statute in a manner that avoids the troubling situation identified by the Ninth Circuit, the Courts decision would have an

extraordinary and immediate effect: over 4,500 prisoners would be eligible for earlier release each year, potentially saving over $42 million annually by effectuating a policy increasing the 3621(e)

sentence reduction

that Congress and the BOP itself have endorsed. Under governing rules of

statutory construction, this Court should interpret proximity and release in the common sense manner that, given the prisoners eligibility for the one year sentence reduction, achieves congressional goals by fully implementing the incentive for successful participation in and completion of residential treatment. By doing so, especially given the BOP s initial construction to include the sentence reduction in calculating proximity to release, the statute would not need to be applied in a manner that thwarts congressional goals. The Court would also address the primacy of rules of construction that favor the ordinary and natural meaning of the terms in context, not speculation on whether similar words should be read to mean the same thing. At the very least, the contradictory interpretations of the BOP and the district court demonstrate sufficient ambiguity to implicate the tie-breaker rules of construction favoring the prisoners interpretation, thereby preventing unnecessary waste of fiscal and human resources. A. The Court Should Grant The Writ Of Certiorari Because The Ninth Circuits Construction Causes Extraordinary Harm To Large Numbers Of Prisoners, At Great And Unnecessary Expense To Taxpayers, And Thwarts Explicit Congressional And Agency Policies. The 362 1(e) incentive program provided sentence reductions for over 4,500 nonviolent federal prisoners in 2009. Federal Bureau of Prisons, State of the Bureau 2009, at
27.1

However,

since the BOP changed its interpretation of proximity to release, the amount of each sentence reduction has declined to an average of less than 8 months. Id. (As a result of their successfully

Available at http://www.bop.gov/news/PDFs/sob09.pdf.

completing RDAP, during FY09, 4,518 inmates received an early release that averaged 7.53 months.) The differential between the full potential sentence reduction and the limited availability under the new rules implicates millions of wasted taxpayer dollars every year (4,500 x $28,000 x 1/3
=

$42,000,000).2 Congress has explicitly recognized and disapproved the trend toward lower 362 1(e)

sentence reductions. In the conference report of the Consolidated Appropriations Act of2Ol 0, Pub. L. No. 111-117, 123 Stat. 3034 (Dec. 16, 2009), Congress directed the BOP to prioritize the participation of nonviolent offenders in the Residential Drug Abuse Treatment Program (RDAP) in a way that maximizes the benefit of sentence reduction opportunities for reducing the inmate population. H.R. REP. No. 111-366, 673 (2009) (Conf. Rep.), reprinted in 2010 U.S.C.C.A.N. 1105, 1181. This explicit statement supports the B OPs original interpretation that gave nonviolent offenders priority for participation in RDAP so their opportunities for early release were maximized, not diminished or extinguished. The direct statement of congressional intent correlates with testimony by the Director of the B OP articulating the policies in favor of increasing 3621(e) sentence reductions from the average of eight months to the full 12 months allowed by statute: Because certain non-violent offenders who successfully complete all components of this recidivism-reducing program are eligible for an incentive of up to one year off their sentence, inmates are strongly motivated to participate. Due to limited capacity, however, inmates receive, on average, only an eight month reduction. The FY 2012 budget request funds an expansion of the drug treatment capacity. An expansion of the drug treatment capacity will allow more inmates to participate in the program and The average cost of incarceration for federal inmates in 2010 was $28,284. Annual Determination of Average Cost of Incarceration, 76 Fed. Reg. 5708 1-02 (Sept. 15, 2011). The unutilized four months of a one-year potential sentence reduction is 1/3 of the annual cost of housing a prisoner.
2

earn an early release, thereby reducing crowding and costs. Specifically, such expansion will allow the BOP to treat all eligible inmates and extend the sentence reductions for those who qualify from the current 8 months average to the full 12 months allowed by statute.
Fiscal 2012 Appropriations: Hearing Before the House Appropriations Subcomm. on Commerce,

Justice, Science andRelatedAgencies, 112th Cong. (Mar. 15,2011) (Statement of HarleyG. Lappin, 3 Contrary to these legislative and administrative objectives, Director, Federal Bureau of Prisons). the current system results in a significant diminution or the outright elimination of the statutorily created incentive of sentence reductions for prisoners who seek and complete RDAP. Appendix
at 12 (citing Thurman, supra).

This Court should grant certiorari simply based on the recognition by Congress, the BOP, and the Ninth Circuit that under-utilization of the 3621(e) sentence reduction is terrible public policy. In effect, the BOP claims that the unambiguous statute forecloses the very sensible way the agency previously administered the statute. With the stakes so high, this Court should apply the rules of statutory construction that at least permit, if not require, the interpretation of the statute that best effectuates its purposes, thereby ameliorating wasteful spending and unnecessary over-incarceration in an already straitened federal prison system. B. This Courts Governing Rules of Statutory Construction Require Interpretation Of The Statute To Include The 3621(e) Sentence Reduction In Determining The Proximity To Release. The Court should grant certiorari because the Ninth Circuits analysis is inconsistent with this Courts governing rules of statutory construction. First, this Court requires resort to the ordinary and natural meaning of priority based on proximity to release, especially given the context of

Available at http ://appropriations .house.gov/_files/03 1511 BOPDirectorStatement.pdf.

the phrase in the statute adjacent to the sentence reduction subsection. Second, this Courts precedent should have been followed in construing the statute to achieve, rather than thwart, its purposes. Third, this Court should clarify that courts should only apply the canon regarding similar words meaning the same thing as a last resort, especially where an opposite canon has the same or greater authority. 1. The Ninth Circuit Failed To Follow This Courts Precedent On Statutory Construction That Requires That The Relevant Words Be Given Their Ordinary And Natural Meaning In Their Statutory Context.

The Ninth Circuit placed primary reliance on a canon of construction far removed from the plain meaning of the statute: Courts generally interpret similar language in different statutes in a like manner when the two statutes address a similar subject matter. Appendix at 10. This reliance ignores the contrary principles upon which the petitioners relied, including a canon directly contradicting reliance on similar language: We refrain from concluding here that the differing language in the two subsections has the same meaning in each. We would not presume to ascribe this difference to a simple mistake of draftsmanship. Barnhartv. Sigmon Coal Co., Inc., 534 U.S. 438,454(2002) (quoting Russello v. Un ited States, 464 U.S. 16, 23 (1983)). Not only is there a principle of statutory construction directly supporting the petitioners, Congress uses written manuals that specifically guard against the ambiguities of using similar instead of identical language. See Senate Office Of The Legislative Counsel, Legislative Drafting Manual

105(a) at 6 (2000) (Consistent Usage).

The ordinary and natural meaning of priority based on proximity to release date includes the reduction of up to one year that an eligible prisoner remains in custody in deciding when a prisoner begins the program. See Arthur Andersen v. United States, 544 U.S. 696, 705-06 (2005) 10

(statutory language should be interpreted in accordance with its ordinary or natural meaning); Leocal v. Ashcroft, 543 U.S. 1, 8-12 (2004) (same). Under standard dictionary definitions of the relevant words, the phrase simply means that prisoners must be ranked for participation in the program based on the nearness in time of the anticipated date they will be freed from custody. See Dean v. United States, 129 S. Ct. 1849, 1853 (2009) (using dictionary definitions to determine statutory meaning). Because each petitioner had been determined eligible for the sentence reduction, the priority reasonably and naturally encompassed the tentative implemented the statute. The reliance on similar language is inappropriate because this Court has provided guidance that specifically addressed the type of interpretation involved in this case. First, because the sentence reduction and proximity provisions immediately follow one another within the same subsection passed at the same time, they should be read in pan materia based on being part of the same section.
See Carlsbad Tech., Inc. v. HIFBio, Inc., 129 S. Ct. 1862, 1865-66 (2009) (immediately following

3621(e) release date, as the BOP originally

subsections read inpani materia). Second,

3624(a) and 362 1(e) were passed ten years apart, so

the failure to use the direct reference to the earlier subsection indicates an intended different
meaning. See TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001) (Expressio unius est exclusio

altenius.). Third, because the earlier statute could not possibly have addressed the sentence reduction because

3621(e) did not then exist, the proximity language should not be read as

relating to a discrete, differently worded provision relating to service of the sentence plus good
time credits. See United States v. Granderson, 511 U.S. 39, 51(1994); see also Judulang v. Holder,

132 5. Ct. 476, 484 (2011) (finding an agencys action arbitrary and capricious when based on the chance correspondence between statutory categories). Governing rules of interpretation foreclose 11

reliance on a different phrase in a different section of the statute, which preceded the existence of

362 1(e) by almost ten years.


Finding no definition of proximity to release date, the Ninth Circuit by-passed this Courts rules, jumping to date of release from an entirely different statute. In doing so, the Ninth Circuit failed to look first to the specific context of the statute, then the broader context of the statute to determine its meaning. See Nken v. Holder, 129 S. Ct. 1749, 1756(2009); Robinson v. Shell Oil Co.,
519 U.S. 337, 341 (1997) (The plainness or ambiguity of statutory language is determined by

reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.). The context of the two subsections of 18 U.S.C. 3621(e) require that they be read together. Section 3621(e) directs the B OP to provide a sentence reduction of up to one year as an incentive for nonviolent offenders to enter and to complete RDAP. 18 U.S.C. 3621(e)(2)(B). The same section of the statute also provides, in the adjacent subsection, that priority shall be given to prisoners based on the time remaining on their sentences

their proximity to release date. 18

U.S.C. 3621(e)(1)(C). Read together in context, the juxtaposition of the phrase proximity to release date with the sentence reduction incentive supports the plain meaning: the proximity phrase reflects the time the prisoner remains in custody including the potential sentence reduction. The ordinary and natural meaning of proximity to release date is how soon the prisoner, with all available mitigation of the time to be served, will complete the term of imprisonment.

12

2.

The Ninth Circuit Should Have Rejected An Interpretation That Is At Odds With Congressional Purposes.

The Ninth Circuit recognized the troubling situation created by its interpretation of statute: by forbidding the BOP from considering the potential sentence reduction, the statutory policy of creating a one-year sentence reduction was stymied in practice. Even if the language were more direct, the Court had the authority to consider the policy behind the legislation in interpreting the statute: {Ejven when the plain meaning did not produce absurd results but merely an unreasonable one plainly at variance with the policy of the legislation as a whole this Court has followed that purpose, rather than the literal words. Perry v. Commerce Loan Co., 383 U.S. 392, 400 (1966)
(quoting United States v. Am. Trucking Ass ns., 310 U.S. 534, 543 (1940)). The meaning of the

statutory language can be determined as including the 3621(e) sentence reduction because, unlike the contrary reading, the BOPs initial correct interpretation using the Tentative 3621E Release Date does not create a troubling situation in which the statutory incentive is diminished or eliminated. By grafting 3624(a) onto 3621(e)(1)(C), the Ninth Circuit served no statutory purpose while undermining the incentive program the statute intended to promote. As proved by the current practical problems, the program is administered in a manner that shortens or eliminates the incentive. For those who receive even a partial incentive, the actual release date is studiously disregarded in establishing priority for participation. Contrary to the face of the statutory language, the BOP routinely does not prioritize by the date of actual release, which is most closely approximated by using the BOPs old Tentative 3621E Release Date. Every recipient of any 3621(e) incentive is actually released before the 3 624(a) good time credit date.

13

By placing violent and nonviolent inmates (or non-eligible or eligible prisoners) in the same position vis-a-vis the proximity to release date, nonviolent inmates are being denied the benefit of the maximum available sentence reduction that Congress clearly intended as a part of the treatment program. Proximity to release must be determined with the 3621(e) sentence reduction in mind or eligible nonviolent inmates are systematically denied the statutorily conferred benefit, which Congress expressly determined should not be accorded by the same priority as for prisoners convicted of violent offenses. Sections 362 1(e) and 3 624(a) serve distinct statutory objectives that are not interchangable. Section 3 624(a) provides the general rule that prisoners are released at the expiration of the term of imprisonment, less any time credited for good behavior. By its plain terms, 3624(a) does not address prisoner releases any earlier than the statutory good time release date. No other

administrative sentence reduction existed when it was promulgated. hi contrast, 3621(e) created an earlier release date based on reduction of the term of imprisonment by up to one-year if the nonviolent offender successfully completes RDAP. Although proximity to release date and date of release share common words, their position in the statutory scheme denotes disparate meaning

the former references the Tentative 3621 E Release Date. The Ninth Circuit concluded that 3621(e) itself does not provide any indication that

nonviolent RDAP-eligible offenders should be subject to a different system of priority for RDAP placement than violent RDAP-eligible offenders. Appendix at 11. On the contrary, Congress very deliberately described two classes that received different treatment: nonviolent prisoners received a release date up to one year earlier than violent prisoners. By disregarding the earlier release date,

14

the Ninth Circuit undermined Congresss decision that nonviolent and violent prisoners should receive different treatment

including in priority of participation

under 3621(e).

The discretionary nature of the sentence reduction is irrelevant. The Ninth Circuit stated: Proximity to release date cannot logically be equated with proximity to earliest potential release date. Appendix at 11. Before the predicates occur, all time short of serving every day of a sentence is potential. Good time can be lost; there can be failure in treatment. The release date for determining priority of participation only makes sense assuming maximum available benefits. Which is exactly how the BOP operated the program from its inception when it used the easily calculated Tentative 3621E Release Date. The troubling situation identified by the Ninth Circuit is an absurd and unjust result which Congress could not have intended. Clinton v. City of New York, 524 U.S. 417, 429 (1998). The Court should grant certiorari to apply governing rules of construction to reach a result consonant with the purposes of the statute.
3. The Court Should Expressly Narrow The Canon Regarding Similar Language To Contemporaneous Statutes Where More Directly Relevant Canons Do Not Apply.

Reliance on similar words should be recognized as the weakest of construction aids. Even the rule that identical words in different parts of the same act are intended to have the same meaning is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the
act with different intent. Envtl. Def v. Duke Energy Corp., 549 U.S. 561, 574 (2007) (citing Atl. Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932)). Accordingly, [a] given term

in the same statute may take on distinct characters from association with distinct statutory objects

15

calling for different implementation strategies. Envtl. Def., 549 U.s. at 574; see also Robinson, 519 U.S. at 343 -44 (each section of a statute must be analyzed to determine whether the context gives the term a further meaning that would resolve the issue in dispute). Here, the phrases are different, they were used in statutes passed at different times, and they are in statutes with distinct purposes. In holding that proximity to release date in 362 1(e) and date of release in 3 624(a) unambiguously mean the same thing, the Ninth Circuit over-relied on a construction aid that this Court has noted is inapplicable where the goals and objectives of the statutes are dissimilar. Fogerly v. Fantasy, 510 U.S. 517, 524(1994); see 2B Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction 53:5 (7th ed. 2011) (The interpretation of one statute by reference to an analogous but unrelated statute is considered an unreliable means to discern legislative intent); see also Smith v. City ofJackson, Miss., 544 U.S. 228,260-61(2005) ([Wi e have not hesitated to give a different reading to the same language whether appearing in separate statutes

or in separate provisions of the same statute if there is strong evidence that Congress did not intend

the language to be used uniformly.) (OConnor, J., concurring). The Ninth Circuit anchored its holding on an interpretive canon derived from two Supreme Court cases: Metropolitan Life
Insurance Company v. Taylor, 481 U.S. 58(1987), and Northcross v. Board ofEducation, 412 U.S.

427 (1973) (per curiam). Appendix at 10-11 (citing Novak, 476 F.3d at 1051). However, in both
Metropolitan Life and Northcross, the Court only utilized the similar language construction aid

when the Court determined that Congress intended for the newer statutory language to incorporate or track the language of the older statute. Metropolitan Life, 481 U.S. at 66 (noting that the legislative history of ERISA expressly stated that the statute would operate in [a] similar fashion as the Labor Management Relations Act of 1947, thereby bolstering the argument that the similar 16

language in the two labor law statutes has similar meaning); Northcross, 412 U.S. at 428 (noting that because the Emergency School Aid Act of 1972 tracks the wording of the Civil Rights Act of 1964, and because both statutes were enacted for the same purpose, there is a strong indication that the two statutes should be interpreted in a similar manner). Even in Novak, the Ninth Circuit only relied on the similar language rationale after determining that the language in the Mandatory Victims Restitution Act was derived from the similarly-worded tax levy statute. 476 F.3d at 1053. Given Russello s rule that different language indicates different meaning, the Ninth Circuit should not have resorted to the similar language rationale absent a thorough analysis regarding the goals and objectives of a statute. By treating the Russello rule as coequal with the similar language construction aid, the lower court encouraged the cynical and inaccurate view that any result can be justified by a canon of construction. See Antonin Scalia, A Matter ofInterpretation 26-27 (Princeton University Press 1997). The Ninth Circuits reliance on the similar language used in 3621(e) and

3624(a), while simultaneously disregarding the legislative history and context of the two
provisions, resulted in the incorrect holding that the language in 362 1(e) unambiguously prohibits the interpretation that best effects Congresss intention to provide a full sentence reduction incentive of up to one year for nonviolent offenders. The Ninth Circuits reliance on an overly flexible canon of construction warrants grant of certiorari. The Court should determine that the Russello rule of construction applies in this context, providing the best method for determining congressional intent. The Court should also clarify that application of the similar language canon is narrowly circumscribed to cases where other, more apt, canons are not available, and to cases where a statute intentionally incorporates or tracks the language of an earlier statute that utilized similar language for a similar purpose. At the very least, 17

the Court should grant certiorari because, given the contradictory rules of construction, there was sufficient ambiguity in the meaning of 3621(e) that the Ninth Circuit should have applied tie-breaker rules of interpretation. C. Especially Where Both The BOP And The District Court Previously Construed Proximity To Release Date To Include The Section 3621(e) Sentence Reduction, The Court Should, In The Alternative, Apply Tie-Breaker Rules Of Statutory Construction. This case involves an unprecedented showing of ambiguity: both the BOP and the district court initially interpreted the statute exactly as do the petitioners. The words of the statute have not changed. The BOP is just as capable of calculating the Tentative 3621E Release Date that the agency calculated without problem for many years. If the BOP is not unambiguously required to include the 3621(e) sentence reduction in calculating proximity to release date, the legislative history conjoining the sentence reduction and priority for participation calls for the same result. See
United States v. R.L. C., 503 U.k. 291, 305-06 (1992). If ambiguity persists, the rule of lenity should

apply. Id. at 305.


1. The Legislative History Supports Inclusion Of The Calculating Proximity To Release. 3621(e) Sentence Reduction In

Normal principles of statutory construction require the Court to give effect to the subtleties of language that Congress chose to employ, particularly where Congress isolated certain sections for special consideration by way of amendment. Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222 (1986). When Congress amends a law, the amendment is made to effect some purpose.
Fernandez-Vargas v. Gonzales, 548 U.S. 30, 39 (2006) (deliberate selection of language
.

differing from that used in the earlier Acts can indicate that a change of law was intended) (citing
Brewster v. Gage, 280 U.S. 327, 337(1930)). Assuming that lack of clarity in a penal statute can be

18

resolved by legislative history, the legislative history supports inclusion of the 362 1(e) reduction in determining proximity to release. Prior to 1994, 3621 only required drug treatment but included no incentives. Good time credit was the only administrative device for shortening the time to release. Initially, the BOP offered incentives such as small financial awards and additional halfway house placement that had
only limited effectiveness. Violent Crime Control and Law Enforcement Act of 1993: Hearing on H.R. 3131 Before the H. Comm. on the Judiciary, 103d Cong. (1993) (statement of Paul Kamenar,

Executive Legal Director, Washington Legal Foundation), available at 1993 WL 664306. In order to reach the great number of inmates in need of treatment, stronger incentives, such as the one-year reduction in sentence, were needed to increase voluntary participation. Id. The legislative history of the addition of 3621(e) demonstrates congressional intent to create an incentive for inmates to enter and to remain in treatment and to provide priority for programming depending on proximity to release. 103 Cong. Rec. H8728 (daily ed. Nov. 3, 1993) (statement of Rep. Schumer), available at 1993 WL 448576. Congress concluded that the incentive is necessary to draw into treatment many inmates who may otherwise not be willing to undergo a
difficult and painful treatment program. Residential Substance Abuse Treatment in Federal

Prisons, H.R. Rep. No. 103-320 (1993), available at 1993 WL 537335 (emphasis added). The original version of 3621(e), introduced in 1991 as the Drug Treatment in Federal Prisons Act of 1991, did not distinguish between violent and nonviolent offenders or include the proximity to release language. 138 Cong. Rec. S8001-02, 8034-5 (daily ed. June 11, 1992),
available at 1992 WL 127222. The following year, the bill was again introduced as part of the

Violent Crime Control and Law Enforcement Act of 1993: 19

Drug Treatment in Federal Prisons. Establishes a schedule for the Bureau of Prisons to place all eligible prisoners into residential substance abuse treatment programs for between 9 and 12 months, in facilities separate from the general prison population. Eligible prisoners would be those with substance abuse problems who are willing to participate in the program. At least 50% of eligible prisoners would have to be in treatment by the end of FY 1995, 75% by the end of FY 1996, and 100% by the end of FY 1997. A prisoner who successfully completes such programs could receive a reduction in sentence of up to one year. 139 Cong. Rec. H6956-02, 6960 (daily ed. Sept. 23, 1993), available at 1993 WL 373661; see also 139 Cong. Rec. S 12388-04, 12444 (daily ed. Sept. 23, 1993), available at 1993 WL 373577. The bill debated on the floor of the House included the proximity to release language and made the sentence reduction available to all prisoners. 139 Cong. Rec. H8723-01, 8723 (daily ed. Nov. 3, 1993), available at 1993 WL 448576. During the debate, concerns were expressed that the sentence reduction should not be offered to violent offenders. Id. At conference, the Senate acceded to the House version of the bill with the addition of the language limiting the early release incentive to nonviolent offenders, leaving the proximity to release language intact. H.R. Rep. No. 103-711, at 381 (Conf. Rep.), reprinted in 1994

U.S.C.C.A.N. 1839, 1849. This amendment clearly indicates that Congress intended for the incentive to go hand-in-hand with the treatment program, and that, as a matter of congressional policy, nonviolent offenders would be treated differently from violent offenders, including on priority for entering the program. Congress recently reiterated its intent that nonviolent offenders be given priority placement in RDAP in order to maximize the early release benefit. The conference report for the Consolidated Appropriations Act of 2010 states expressly that the BOP shall prioritize nonviolent offenders participation in RDAP, echoing the priority language of 18 U.S.C. 3621(e)(1)(C):

20

To the greatest extent possible, BOP shall prioritize the participation of nonviolent offenders in the Residential Drug Abuse Treatment Program (RDAP) in a way that maximizes the benefit of sentence reduction opportunities for reducing the inmate population.
155 Cong. Rec. H1363 1-03, 13887 (daily ed. Dec. 8, 2009), available at 2009 WL 4667416. The

bill was enacted into law on December 16, 2009. Consolidated Appropriations Act of 2010, Pub. L. 111-117, 123 Stat. 3034 (Dec. 16, 2009). Congress considered the conference report directives to be binding on the agency: The conferees expect that each department and agency funded in this Act shall follow the directions set forth in this Act and the accompanying report, and shall not reallocate resources or reorganize activities except as provided herein. 155 Cong. Rec. at H 13851;
see also Motor Vehicle Mfrs. Ass n of US., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 45

(1983) (post-enactment legislative events can inform agency interpretation); Sec y of the Interior v. W Oil & GasAssn, 464 U.S. 312, 330 (1984). The CAA s priority language explicitly complements the priority for treatment language of 18 U.S.C.

3621(e)(1)(C), which in turn references proximity to release. Congress also

pointedly referenced nonviolent offenders as the persons who should be prioritized by their proximity to release. Thus, the text of the legislative directive necessarily incorporates the incentive for nonviolent offenders in order to give effect to the specific distinction made for that class of prisoners within 18 U.S.C.

3621(e)(2)(B). The BOPs interpretation, in contrast, negates the plain

statutory language for nonviolent eligible prisoners and is irreconcilably inconsistent with the appropriations act. The legislative history includes no reference to 3624(a) in determining proximity to release. Although the Ninth Circuit noted no explicit reference in

3621(e)(1)(C) to the 3621(e)(2)

21

sentence reduction, neither was there a reference to 3624(a), which would have been more logical i so intended. Further, [am inference drawn from congressional silence certainly cannot be

credited when it is contrary to all other textual and contextual evidence of congressional intent. Burns v. United States, 501 U.k. 129, 136 (1991). The lack of reference to a different section creates a fair inference that omission of 3624(a) was a deliberate choice, not inadvertence. Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (citation omitted). Here, the legislative history of the proximity to release date language demonstrates that it was enacted in tandem with the

3621(e) incentive to nonviolent offenders. There was no need to either include a definitional
section or include clarifying language because proximity to release date logically included the adjacent eligibility for the sentence reduction. 2. Ambiguity In This Penal Statute Should Be Resolved By The Rule Of Lenity.

There is at least ambiguity sufficient to apply the rule of lenity to this penal statute. United States v. Granderson, 511 U.S. 39, 54 (1994); R.L. C., 503 U.S. at 305 (the rule of lenity resolve[s] issues about the substantive scope of criminal statutes [and] about the severity of sentencing) (citing Bifulco v. Un ited States, 447 U.5. 381,387(1980)). Underthis doctrine, proximityto release must be interpreted to reflect a prisoners eligibility for early release. See Skilling v. United States, 130 5. Ct. 2896,2932(2010); United States v. Santos, 553 U.S. 507,514(2008) (under the rule of lenity, the tie must go to the defendant). Because the practice of excluding the sentence reduction from proximity to release adversely affects the length of the sentence reduction for a broad class of prisoners, proximity to release must be interpreted to reflect eligibility for the sentence reduction. See Clark v. Martinez, 543 U.S. 371, 380-8 1 (2005).

22

This case does not involve agency deference. The BOP conceded that Chevron deference did not apply. Although the BOP invoked Skidmore, the BOP silently changed its rule, articulating no empirical evidence, no reliance on expertise, no reasoned decision-making, and no rationale for the change. Cf Skidmore v. Swift & Co., 323 U.S. 134, 139 (1944) (deference to agency requires thorough consideration, valid reasoning, consistency with earlier pronouncements, and persuasive power). In any event, the rule of lenity in this context is a traditional tool[] of statutory

construction that narrows the statutes meaning, making agency deference unnecessary. Chevron, US.A., Inc. v. Natural Res. Def Council, Inc., 467 U.S. 837, 843 n.9 (1984). Conferring Skidmore deference in this context would turn the normal construction of criminal statutes upside-down, replacing the doctrine of lenity with a doctrine of severity. Crandon v. United States, 494 U.S. 152, 178 (1990) (Scalia, J., concurring); see Dolfi v. Pontesso, 156 F.3d 696, 700 (6th Cir. 1998) ([Cjriminal law and the interpretation of criminal statutes is the bread and butter of the work of federal courts); United States v. McGoff, 831 F.2d 1071, 1077, 1080 n.17 (D.C. Cir. 1987) (no deference to executive interpretation of criminal statute). 6. Conclusion The Court should grant certiorari to vindicate core purposes of the writ. The legal issue is extraordinarily important because the freedom of thousands of prisoners and millions of taxpayer dollars are at stake. The Courts function of providing precedential guidance is also at issue because the Ninth Circuit failed to rely on governing precedent on determining the statutes meaning, while expounding a highly questionable and inappropriately flexible rule that similar words mean the

23

same thing. To address an exceptional issue and to vindicate this Courts precedent on statutory construction, the Court should issue a writ of certiorari. Dated this 9th day of January, 2012.

Stephen R. ady Attorney for Petitioner

24

No.

IN THE SUPREME COURT OF THE UNITED STATES

CHRISTOPHER CLOSE, Petitioner,


V.

JEFF E. THOMAS, Warden, Respondent.

On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit

CERTIFICATE OF SERVICE AND MAILING

I, Stephen R. Sady, counsel of record and a member of the Bar of this Court, certify that pursuant to Rule 29.3, service has been made of the within PETITION FOR WRIT OF CERTIORARI on the counsel for the respondent by hand-delivery on January 10, 2012, an exact and full copy thereof addressed to: Kevin C. Danielson U.S. Attorney 1000 SW Third, Suite 600 Portland, Oregon 97204

and by depositing in the United States Post Office, in Portland, Oregon on January 9, 2012, first class postage prepaid, an exact and full copy thereof addressed to: Donald B. Verrilli, Jr. Solicitor General of the United States Room 5614 Department of Justice 950 Pennsylvania Avenue, N. W. Washington, DC 20530-000 1 Further, the original and ten copies were mailed to the Honorable William K. Suter, Clerk of the United States Supreme Court, by depositing them in a United States Post Office Box, addressed to 1 First Street, N.E., Washington, D.C., 20543, for filing on this 9th day of January, 2012, with first-class postage prepaid. Dated this 9th day of January, 2012.

Stephen R. Sady Attorney for Petitioner Subscribed and sworn to before me this 9th day of January, 20

COMMISSION NO. 442717 MY COMMISSION EXPIRES OCTOBER 28,2013

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

CHRISTOPHER C. CLOSE, Petitioner, v. J.E. THOMAS, Warden, Federal Correctional Institution, Sheridan, Oregon, Respondent. ORDER Civil No. 09-1172-HA LEAD CASE

HAGGERTY, District Judge: This action is designated as Lead Case for a series of consolidated prisoner actions that

involve a common issue regarding assertions from prisoner-petitioners that the Bureau of Prisons
(BOP) has misconstrued the scope of this courts ruling in Thurman v. Thomas, Civil No. 061400-HA, 2009 WL 936663 (D. Or. March 30, 2009). Specifically, petitioners contend that their

entries into the BOPs Residential Drug Abuse Program (RDAP) have been wrongfully delayed because they have not been prioritized on RDAP waiting lists in accordance with proper Proximity to Release dates. For the reasons that follow, these petitions are denied.

ORDER

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BACKGROUND

Section 362 1(b) of the United States Code directs the BOP to provide substance abuse treatment to prisoners who have a treatable condition of substance addiction or abuse. 18 U.S.C.

362 1(b). As an incentive for a prisoner to participate in substance abuse treatment

while in custody, Congress has provided that {t]he period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the [BOP], but such reduction may not be more than one year from the term the prisoner must otherwise serve. 18 U.S.C.

362 1(e)(2)(B). The reduction provided by 362 1(e) is

recognized as a tangible, significant incentive to prisoners to complete a drug abuse program. Cortv. Crabtree, 113 F.3d 1081, 1085 (9thCir. 1997). The statute provides that enrollment in treatment programs is subject to availability of appropriations and is to be based on an eligible prisoners proximity to release date. 18 U.S.C.

362 1(e)(1)(C). Petitioners assert that their confinement is in violation of federal law because
of the way that the BOP has interpreted this eligibility standard. Petitioners refer to the Thurman litigation, in which prisoners maintained that they were

362 1(e) eligible prisoners (inmates eligible for the discretionary sentence reduction for up to

one year for completing RDAP), and sought relief in the form of being ranked on the RDAP wait list according to projected

362 1(e) release dates. Counsel in that litigation explored the 3621(e)(1)(C). The court

meaning of the phrase proximity to release date as it is used in

for purposes of determining whether the BOP had acted vindictively toward the petitioners and tailoring an appropriate remedy

attempted to determine what the BOPs practice had been

2 -ORDER

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regarding wait-list rankings. The court concluded in Thurman that the appropriate relief for those petitioning inmates was to rank their eligibility for the discretionary sentence reduction for up to one year for completing RDAP in accordance with their projected

3621(e) release dates.

This result was described as the most reasonable conclusion that can be drawn from the discovery produced in the litigation, and the absence of persuasive evidence regarding how prisoners were ranked for eligibility was noted. Thurman, Civil No. 06-1400-HA 2009 WL 936663, at *4 ANALYSIS Petitioners in the present litigation assert that their confinement is illegal because the BOP has not evaluated their eligibility in the manner ordered for the petitioners in the Thurman case. In so arguing, petitioners seek a definitive ruling on RDAP-eligibility rankings for prisoners. Although this matter was addressed extensively in Thurman, it was done so as a collateral matter in response to an effort to tailor equitable remedies for those prisoners who petitioned the court on claims regarding the BOPs refusal to process repeated requests for admission into RDAP. This court finds that the conclusions in Thurman are neither binding nor dispositive in this matter. An examination of the issues presented here yields an analysis that departs from the reasoning compelled by the unique circumstances confronted in Thurman. As noted above, enrollment in the treatment programs at issue is subject to availability of appropriations and is to be based on an eligible prisoners proximity to release date. 18 U.S.C.

3621(e)(1)(C).

ORDER

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Release date is not defined in Section 3621, but is defined within the same subchapter of Title 18: (a) Date of Release A prisoner shall be released by the Bureau of Prisons on the date of the expiration of the prisoners term of imprisonment, less any time credited toward the service of the prisoners sentence as provided in subsection (b).

18 U.S.C.

3624(a).

Subsection (b) refers to credit toward service of sentence for satisfactory behavior, or Good Conduct Time. Petitioners oppose this interpretation on grounds that it purportedly reads the word proximity out of the statute. This court disagrees. This construction provides full meaning to the term proximity, and reasonably and logically equates release date with date of release. Similarly, petitioners argument that relying upon the definition provided in error because both subsections of 362 1(e) were enacted in concert well after

3 624(a) is

3624(a)s

enactment, is unpersuasive. Pet. Reply at 5. Congress elected to employ terms in the later statute that are virtually indistinguishable from exisitng, specifically defined terms in the same Subchapter. This court finds that the term release date in Section 362 1(e) must be construed in accordance with the definition of date of release provided in Section 3624(a)

that is, Section

362 1(e) is fairly read to provide that enrollment in RDAP is subject to availability of appropriations and is to be based on an eligible prisoners proximity to the date of release (as defined in 18 U.S.C.

3624(a)

the prisoners full term release date less any good conduct

time the inmate earns).

ORDER

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The court has scrutinized the extensive evidence provided in this action by respondent regarding how petitioners were ranked for RDAP eligibility, and how their possible release dates were calculated in accordance with this conclusion. The Declarations attached to respondents Motion to Dismiss and respondents Motion for Summary Judgment establish that policies regarding these issues have evolved

although the

the BOPs calculations regarding these petitioners

eligibility for admission into RDAP and for a possible, discretionary reduction in their sentences have not rendered petitioners confinement unlawful. Because this court finds no legal error in the BOPs calculations regarding these petitioners and their RDAP eligibility, and because petitioners have otherwise failed to show that they are in custody in violation of the Constitution or laws of the United States, habeas relief for these petitioners is precluded. CONCLUSION For the reasons provided herein, habeas relief for these petitioners is denied. Counsel for respondent shall file Proposed Orders and Judgments reflecting this conclusion for the petitions pending in Close v. Thomas, Civil No. 09-1172-HA-LEAD, and each of the petitions consolidated therein. These proposed rulings shall be filed within thirty days of this Order. Any objections to any proposal must be filed by petitioners within ten days after that proposal is filed. IT IS SO ORDERED. DATED this day of September, 2010.

Is! Ancer L. Haggerty Ancer L. Haggerty United States District Judge

ORDER

Appendix A Page 5

WstLa
Page 1 653 F.3d 970, 11 Cal. Daily Op. Serv. 9767, 2011 Daily Journal D.A.R. 11,684 (Cite as: 653 F.3d 970)

C
United States Court of Appeals, Ninth Circuit. Christopher CLOSE, PetitionerAppellant,
V.

FN * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). FiledAug. 3, 2011. Background: Federal prisoners petitioned for writ of habeas corpus regarding manner in which Bur eau of Prisons (BOP) prioritized prisoners eligibil ity for entering into Residential Drug Abuse Treat ment Program. The United States District Court for the District of Oregon, Ancer L. Haggerty, Senior District Judge, denied petitions. Prisoners appealed. Holdings: The Court of Appeals, Paez, Circuit Judge, held that: (1) Court had jurisdiction over petitions and (2) BOP could calculate proximity to release without incorporating possibility of early release. Affirmed. West Headnotes [II Habeas Corpus 197 617.1 197 Habeas Corpus 197111 Jurisdiction, Proceedings, and Relief 197111(B) Jurisdiction and Venue 197111(B) 1 In General I 97k61 7 Federal Courts l97k6l7.l k. In general. Most Cited Cases Habeas petitions challenging system that Bur eau of Prisons (BOP) used to rank all inmates eli gible for Residential Drug Abuse Treatment Pro gram (RDAP) on RDAP wait list, alleging that BOP action is contrary to its statutory authority, were within jurisdiction of federal courts, since pe titioners challenged system applying to all RDAP eligible inmates, not individualized determinations. 18 U.S.C.A. 3621; 28 U.S.C.A. 2241. [2] Habeas Corpus 197 842

Jeff E. THOMAS, Warden, RespondentAppellee. Danny R. Sass, PetitionerAppellant,


V.

Jeff Thomas, Warden, RespondentAppellee. Michael Lee Stockton, PetitionerAppellant,


V.

Jeff E. Thomas, RespondentAppellee. Bradley Alan Moschetti, PetitionerAppellant,


V.

Jeff E. Thomas, Warden, Federal Prison Camp, Sheridan, Oregon, RespondentAppellee. Rafi Shotland, PetitionerAppellant,
V.

Jeff E. Thomas, RespondentAppellee. Edelmiro Tamez, Jr., PetitionerAppellant,


V.

Jeff E. Thomas, Warden, Federal Prison Camp, Sheridan, Oregon, RespondentAppellee. Larry D. Beverly, PetitionerAppellant,
V.

Jeff E. Thomas, RespondentAppellee. Kevin Jerome Snoozy, PetitionerAppellant,


V.

Jeff E. Thomas, Warden, Federal Prison Camp, Sheridan, Oregon, RespondentAppellee. Edward Anderton, PetitionerAppellant,
V.

Jeff E. Thomas, RespondentAppellee. Robert Scott Merry, PetitionerAppellant,


V.

Jeff E. Thomas, Warden, Federal Prison Camp, Sheridan, Oregon, RespondentAppellee. Nos. 1035850, 1035851, 1035853, 1035852, 1035854, 1035855, 1035856, 1035857, 1035858, 1035859. Submitted June 6, 2011.

2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

1/6/20 12

Page 1 of7

Appendix B Page 6

Page 2 653 F.3d 970, 11 Cal. Daily Op. Serv. 9767, 2011 Daily Journal D.A.R. 11,684 (Cite as: 653 F.3d 970) 197 Habeas Corpus 197111 Jurisdiction, Proceedings, and Relief 197111(D) Review 197111(D)2 Scope and Standards of Review 197k842 k. Review de novo. Most Cited Cases De novo review applies to a district courts denial of a habeas corpus petition. 28 U.S.C.A. 2241. 131 Habeas Corpus 197 818 197 Habeas Corpus 197111 Jurisdiction, Proceedings, and Relief 197111(D) Review 197111(D)1 In General 197k817 Requisites and Proceedings for Transfer of Cause 197k8l8 k. Certificate of probable cause. Most Cited Cases A certificate of appealability (COA) is not re quired to appeal the denial of a habeas petition filed by a person in federal custody. 28 U.S.C.A. 2241. 361 Statutes 361 VI Construction and Operation 36lV1(A) General Rules of Construction 361k2l3 Extrinsic Aids to Construction 361 k2 19 Executive Construction 36lk219(4) k. Erroneous construc tion; conflict with statute. Most Cited Cases Under the Chevron two-step analysis, court must first determine whether the statute directly ad dresses the precise issue before it, and if the intent of Congress is clear, that is the end of the matter; but if the statute is silent or ambiguous in express ing congressional intent, the court must then de termine whether the agencys interpretation is based on a permissible construction of the statute. [6j Statutes 361 223.2(.5) 361 Statutes 361V[ Construction and Operation 361 Vi(A) General Rules of Construction 361 k223 Construction with Reference to Other Statutes 36Ik223.2 Statutes Relating to the Same Subject Matter in General 361k223.2C5) k. In general. Most Cited Cases Courts generally interpret similar language in different statutes in a like manner when the two statutes address a similar subject matter.

151 Statutes 361 219(2)


361 Statutes 361 VI Construction and Operation 361 VI(A) General Rules of Construction 361 k2 13 Extrinsic Aids to Construction 361 k2 19 Executive Construction 361k2i9(2) k. Existence of ambigu ity. Most Cited Cases Statutes 361 t219(4)

[41 Prisons 310 245(4)


310 Prisons 31011 Prisoners and Inmates 31011(F) Duration of Confinement 310k243 Good Conduct or Other Earned Credits Against Sentence 31 0k245 Right to Credits; Eligibility and Entitlement 3l0k245(4) k. Participation in treat ment programs. Most Cited Cases Phrase, proximity to release, in statute gov erning Residential Drug Abuse Treatment Program (RDAP), did not require that Bureau of Prisons (BOP) give nonviolent offenders priority placement in RDAP to maximize opportunity for one-year sentence reduction upon successful completion of the program; plain language of statute unambigu ously allowed BOP to calculate proximity to re lease without incorporating possibility of early re lease. 18 U.S.C.A. 362 1(e), 3624(a).

171 Statutes 361 188


361 Statutes 361 VT Construction and Operation

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Appendix B Page 7

Page 3 653 F.3d 970, 11 Cal. Daily (Cite as: 653 F.3d 970)

Op. Serv. 9767, 2011

Daily Journal D.A.R. 11,684

361 VI(A) General Rules of Construction 361k187 Meaning of Language 361k188 k. In general. Most Cited Statutes 361 217.4 361 Statutes 361 VI Construction and Operation 361 VI(A) General Rules of Construction 36lk213 Extrinsic Aids to Construction 361k2l7.4 k. Legislative history in general. Most Cited Cases If the plain meaning of the statute is unambigu ous, that meaning is controlling and a court need not examine legislative history as an aid to inter pretation unless the legislative history clearly indic ates that Congress meant something other than what it said. 18] Statutes 361 241(1) 361 Statutes 361 VI Construction and Operation 36lVl(B) Particular Classes of Statutes 361 k24l Penal Statutes 361k241(1) k. In general. Most Cited Cases Court did not need not consider whether rule of lenity applied, where statute was unambiguous on its face. *972 Stephen R. Sady, Chief Deputy Federal Public Defender, District of Oregon, Portland, OR, for pe titioner-appellants Christopher Close, et al. Dwight C. Holton, United States Attorney District of Oregon, Kelly A. Zusman, Appellate Chief United States Attorney District of Oregon, Kevin Danielson, Assistant United States Attorney Dis trict of Oregon, Portland, OR, for respondent-ap pellee Jeff E. Thomas, Warden, FCI Sheridan.

3:09cv0 1224HA, 3:09cv-01 172HA, 3 :09cv0 1349HA, 3 :09cv0 1290HA, 3 :09cv0 1347HA, 3 :09cv--0 1368HA, 3:09cv0 1365HA, 3:09cv-01 385HA, 3: lOcv00007HA, 3:09cv0l367HA. Before: RAYMOND C. FISHER, RONALD M. GOULD, and R[CHARD A. PAEZ, Circuit Judges.

OPINION PAEZ, Circuit Judge: Petitioner Christopher Close and nine other similarly situated prisoners (collectively Close or Petitioners) appeal the district courts judgment denying their 28 U.S.C. 2241 habeas corpus peti tions. These consolidated habeas petitions require us to consider the manner in which the Bureau of Prisons prioritizes a prisoners eligibility for enter ing into a Residential Drug Abuse Treatment Pro gram. We have jurisdiction pursuant to 28 U.S.C. 1291 and 2253. Finding no error in the Bureau of Prisons interpretation of the governing statute, 18 U.S.C. 3621(e)(l), we affirm the district courts judgment. I. Factual and Procedural Background In 1990, Congress required that the Bureau of Prisons (BOP) provide substance abuse treatment for inmates with a treatable condition of substance addiction or abuse. 18 U.S.C. 3621(b). As a res ult, BOP instituted Residential Drug Abuse Treat ment Programs (RDAP). Four years later, Con gress amended 3621, providing that BOP could reward inmates who successfully completed RDAP with early release. 18 U.S.C. 3621(e)(2)(B). The statute permits BOP to consider only nonviolent of fenders for this early release incentive, and it per mits early release of up to only one year. Id. Even though violent offenders cannot benefit from the early release provision, those with substance abuse problems are still eligible for participation in RDAP. Congress directed that BOP place RDAP eligible inmates into programs with priority for such treatment accorded based on an eligible pris oners proximity to release date. 18 U.S.C.

Appeal from the United States District Court for the District of Oregon, Ancer L. Haggerty, Senior Dis trict Judge, Presiding. D.C. Nos.

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Page 4 653 F.3d 970, 11 Cal. Daily Op. Serv. 9767, 2011 Daily Journal D.A.R. 11,684 (Cite as: 653 F.3d 970) 362 1(c)(l)(A). Neither the statute nor its regulations, 28 .57, indicate whether BOP C.F.R. 550.50 should factor in the early release incentive when it determines how close inmates are to their release date. The issue is significant because demand for RDAP far exceeds its availability and proximity to release date dictates inmates*973 priority on the long RDAP wait list. So if a nonviolent inmate is 24 months from the end of his term of imprison ment, should BOP rank him on the RDAP wait list as though he were only 12 months from the end of his term of imprisonment because he would be eli gible for 362i(c)s early release upon successful RDAP completion? BOP has answered this ques tion both ways at different times. For some time, BOP did factor in potential early release for eligible inmates when ranking them on the RDAP wait list. As a result, a nonviolent offender scheduled to be released in 24 months would be ranked on the wait list at the same level as a violent offender with only 12 months remaining in his term of imprisonment. Currently, however, as reflected in an internal policy statement, BOP does not take the potential early release into account when calculating a nonvi 1 olent inmates proximity to release. FNI. On March 16, 2009, BOP issued a Program Statement titled Early Release Procedures Under 18 U.S.C. 362 1(e). The purpose of the document is to re-establish criteria and procedures when considering an inmate for early release pursuant to 18 U.S.C. 3621(e)(2)(B) for successful completion of the Residential Drug Abuse Program. Section 9 of the Program Statement reads, in pertinent part: Upon a qualified inmates entry into the RDAP, the [Drug Abuse Program Coordin forward a Notice ator], or designee, will of 3621(e) Date form [] to the [1 team responsible for the inmates sentence com putation requesting computation of a release method conditional 3621(e)
...

date In March 2009, an Oregon district court found that proper statutory construction compels the con clusion that the BOP is required to perform wait list calculations that include the prisoners projected 3621(e) release date. Thurman v. Thomas, No. 06i400, 2009 WL 936663, at *4 (D.Or. March 30, 2009). The district court observed that [flailing to do so currently results in a significant diminution or the outright elimination of the statutorily created in centive of sentence reductions for prisoners who seek and complete RDAP. Id. The district court concluded that inmates eligible for the discretion ary sentence reduction for up to one year for com pleting RDAP should be ranked on the wait list ac cording to their projected 362 1(c) release dates. Id. Petitioner Close is an RDAP-eligible nonviol ent offender housed in BOPs Sheridan, Oregon fa cility. After learning of the district courts order in Thurman, Close filed a pro se 28 U.S.C. 2241 habeas corpus petition on October 1, 2009. The only issue Close raised in this petition was whether BOP should rank him on the RDAP wait list in con formity with the district courts order in Thurman that is, taking into account his potential eligibil ity for 3621(e) early release. On January 26, 2010, the district court consolidated Closes petition with nine others raising the same issue and desig nated Closes case as the lead. The district court subsequently granted BOPs motion for summary judgment, denying all of the consolidated habeas petitions. The district court found that the conclu sions in Thurman are neither binding nor disposit ive in this matter. All Petitioners filed timely no tices of appeal. II. Standard of Review and Jurisdiction [1][2j[3] We review de novo a district courts denial of a 28 U.S.C. 2241 habeas corpus petition. vferaz v. Thomas, 601 F.3d 933, 9.39 (9th 1 Moraj Cir.2010). We recently held that federal courts lack jurisdiction to review the BOPs individualized RDAP determinations made pursuant to 18 U.S.C.

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Page 5 653 F.3d 970, 11 Cal. Daily Op. Serv. 9767, 2011 Daily Journal D.A.R. 11,684 (Cite as: 653 F.3d 970)

3621. Reeb v. Thomas, 636 F.3d 1224, 1228 (9th Cir.20 11). We clarified, however, that [a]lthough judicial review*974 remains available for allega tions that BOP action is contrary to established fed eral law, violates the United States Constitution, or exceeds its statutory authority, Reebs habeas peti tion alleges only that the BOP erred in his particu lar case. Id. Close and the other petitioners in this case do not challenge individualized determina tions. Rather, they challenge the system that BOP uses to rank all RDAP-eligible inmates on the RDAP wait list. These petitions allege that the its statutory author BOP action is contrary to ity. Id. Therefore, the petitions are within this courts jurisdictionJ 2
...

statute. Id. at 843, 104 S.Ct. 2778. To determine Congresss intent, [a]s always, the starting point is the plain language of the stat ute. Greenivood v. CoinpuCredit Corp., 615 F.3d 1204, 1207 (9th Cir.20l0) cert. granted, U.S. 131 S.Ct. 2874, 179 L.Ed.2c1 1187 (2011). We have explained that [i]f the plain meaning of the statute is unambiguous, that meaning is con trolling. id. The statute at issue here reads, in per tinent part: the Bureau of Prisons shall, subject to the availability of appropriations, provide residen for all eligible tial substance abuse treatment prisoners by the end of fiscal year 1997 and there
...

after, with priority for such treatment accorded based on an eligible prisoners proximity to release
date. 18 U.S.C. 362l(e)(i)(C) (emphasis added). Subsection (e)(2)(B) provides that [t]he period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve. 18 U.S.C. 3621(e)(2)(B).

FN2. Although Petitioners do not have Certificates of Appealability, a COA is not required to appeal the denial of a 2241 petition filed by a person in federal cus tody. See Forde v. U.S. Parole Con?n?n, 114 F.3d 878, 879 (9th Cir.1997). III. Discussion [4] Close argues that the statutory phrase proximity to release in 18 U.S.C. 3621(e) re quires that BOP give nonviolent offenders priority placement in RDAP to maximize the opportunity for a one-year sentence reduction upon successful completion of the program. BOP contends that the plain language of the statute unambiguously allows it to calculate proximity to release without incor porating the possibility of early release. [5] When we review[ ] an agencys construc tion of the statute which it administers, [we are] confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Con Chev gress is clear, that is the end of the matter U.S.A., Inc. v. Natural Res, Def Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If we determine that the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agencys an swer is based on a permissible construction of the

Subsection (e)(5) contains definitions for cer tain terms [a]s used in this subsection. 18 U.S.C. 3621(e)(5). The terms defined in (e)(5) do not in clude priority, proximity, or release date. Al though 3621 does not define any of these terms, 3 624(a) which appears within the same subchapter as 3621 defines the term date of re lease. Section 3624(a) specifies that date of re lease is the date of the expiration of the prisoners term of imprisonment, less any time credited to ward the service of the prisoners sentence as provided in subsection (b) 18 U.S.C. 3624(a). Subsection (b) explains how good time credits are appropriated; it includes*975 no reference to provi sions for early release by means of any other type of sentence reduction. [6] Courts generally interpret similar language in different statutes in a like manner when the two statutes address a similar subject matter. United States v.Novak, 476 F.3d 1041, 1051 (9th

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Appendix B Page 10

Page 6 653 F.3d 970,11 Cal. Daily Op. Serv. 9767, 2011 Daily Journal D.A.R. 11,684 (Cite as: 653 F.31 970) Cir.2007) (en banc). Therefore, we apply 3624(a) s definition of date of release to the nearly identical term release date in 3621(e)(1)(C). The plain language of the statute contains no indic ation that Congress intended BOP to attribute dif ferent meanings to these terms. Indeed, Congress provided subsection-specific definitions for certain terms in 3621 (e)(5), but release date is not among them. See 18 U.S.C. 362l(e)(5). In addi tion, Congress could have, but did not, add lan guage after proximity to release date specifying that BOP should take into account the possibility of early release for nonviolent offenders provided in subsection (e). Nor does subsection (e) itself provide any indication that nonviolent RDAP-eli gible offenders should be subject to a different sys tem of priority for RDAP placement than violent RDAP-eligible offenders. Thus, we conclude that the statutory language is unambiguous on its face. Congress directed BOP to provide RDAP services to eligible offenders based on an eligible prisoners with priority U.S.C. proximity to release date, 18 3621(e)(l)(C), as calculated by applying the defini tion of date of release in 3624(a). Our conclu sion is buttressed by the fact that the early release at issue here is discretionary: [t]he period a pris oner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Pris ons 18 U.S.C. 3621(e)(2)(B) (emphasis ad ded). Proximity to release date cannot logically be equated with proximity to earliest potential re lease date. Accordingly, Closes argument fails. The statute unambiguously does not require BOP to account for subsection (e) early release when calcu lating inmates proximity to release date and their resulting RDAP wait list placement.
...

Greenwood, 615 F.3d at 1207 what it said. (quoting Carson Harbor Viii., Ltd. v Unocal Cotp.. 270 F.3d 863, 877 (9th Cir.2001) (en banc)). Close argues that this court must give effect to 3621s recent post-enactment legislative history and con strue the statute as the district court did in Thur man. The House Congressional Record on the Con solidated Appropriations Act of 2010 states: To the greatest extent possible, BOP shall prioritize the participation of nonviolent offenders in the Resid ential Drug Abuse Treatment Program (RDAP) in a way that maximizes the benefit of sentence reduc tion opportunities for reducing the inmate popula tion. 155 Cong. Rec. H1363103 at H13887 (Dec. 8, 2009). While this statement could certainly be understood to support Closes argument here, it is not specific enough to clearly indicate[ ] that Con gress meant something other than what it said when it enacted 3621(e) in 1994. Greenwood, 615 F.3d at 1207. The Houses 2009 statement is not sufficiently clear to supersede the statutes unam biguous languaget

[71[$1 Since the plain meaning of the statute is unambiguous, that meaning is controlling and we need not examine legislative history as an aid to in terpretation unless the legislative history clearly indicates that Congress meant something other than

FN3. Because the statute is unambiguous on its face, we give effect to its plain meaning and we need not consider whether the rule of lenity applies. See United States R.LC., 503 U.S. 291, 30506, 112 S.Ct. 1329, 117 L.Ed.2d 559 (1992) ([Wje have always reserved lenity for those situations in which a reasonable doubt persists about a statutes intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute.) (quoting Moskai v. United States, 498 U.S. 103, 108, ill S.Ct. 461, 112 L.Ed.2d 449 (1990)). Nor do we need to consider whether BOPs interpretation is entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161. 89 L.Ed. 124 (1944). See High Sierra Hikers Assn v. .Biackweii, 390 E. 3d 630, 63839 (9th Cir.2004) (If the statute is ambiguous, the agencys decision is en titled to (Jhevron deference if it has the

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Page 7 653 F.3d 970, 11 Cal. Daily Op. Serv. 9767, 2011 Daily Journal D.A.R. 11,684 (Cite as: 653 F.3d 970) force of law.... If the decision does not have the force of law, it is reviewed with respect according to the factors set out in Mead Corp., 533 U.s. United States 218, 121 5.Ct. 2164, 150 L.Ed.2d 292 (2001)] and Skidmore ). *976 IV. Conclusion We affirm the district courts denial of Closes and the other habeas petitions. We note, however, that BOPs administration of RDAP, combined with the programs insufficient capacity, has created a troubling situation that calls for a legislative or reg ulatory remedy. As the district court observed in Thurman, the current system results in a signific ant diminution or the outright elimination of the statutorily created incentive of sentence reductions for prisoners who seek and complete RDAP. 2009 WL 936663, at *4 Nonetheless, given the text of 18 U.S.C. 3621(e)(l)(C) and 3624(a), Petition ers challenge to the RDAP priority scheme adopted by BOP must necessarily fail. AFFIRMED. C.A.9 (Or.),20l 1. Close v. Thomas 653 F.3d 970, 11 Cal. Daily Op. Serv. 9767, 2011 Daily Journal D.A.R. 11,684 END OF DOCUMENT

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Appendix B Page 12

Case: 10-35850

10/12/2011

ID: 7925688

DktEntry: 30

Page: 1 of 1

FILED
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

OCT 122011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

CHRISTOPHER CLOSE, Petitioner Appellant,


-

No. 10-35850 (Lead), 10-35851, 10-35852, 10-35853, 10-35854, 10-35855, 10-35856, 10-35857, 10-35858, 10-35859 D.C. No. 3:09-cv-01 172-HA District of Oregon, Portland

V.

JEFF E. THOMAS, Warden, Respondent Appellee.


-

ORDER

Before: FISHER, GOULD, and PAEZ, Circuit Judges.

The panel has voted unanimously to deny the petition for rehearing. The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing and for rehearing en banc is DENIED.

Appendix C Page 13

Subtitle T-.Substance Abuse Treatment in Federal Prisons


SEC. 320)1. SUBSTANCE ABUSE TREATMENT U4 FEDERAL PRISONS.

Section 3621 of title 18, United States Code, is amended (1) in the last sentence of subsection (b), by striking to the extent practicable,; and (2) by adding at the end the following new subsection:
,

(e) SUBSTANCE ABUSE TREATMENT.

(1) PHAsE-TNin order to carry out the requirement of the last sentence of subsection (b) of this section, that every

prisoner with a substance abuse problem have the opportunity to participate in appropriate substance abuse treatment, the Bureau of Prisons shall, subject to the availability of appropria tions, provide residential substance abuse treatment (and make arrangements for appropriate aftercare) (A) for not less than 50 percent of eligible prisoners by the end of fiscal year 1996, with priority for such treat ment accorded based on an eligible prisoners proximity to release date; (B) for not less than 75 peitent of eligible prisoners by the end of fiscal year 1996, with priority for such treat inent accorded based on an eligible prisoners proximity to release date; and (C) for all eligible prisoners by the end of fiscal year 1997 and thereafter, with priority for such treatment accorded based on an eligible prisoners proximity to release date.

108 STAT. 1896

Appendix D Page 14

VIOLENT CRIMI CONTROL ACT


INCENTIVE FOR PRISONERS SUCCESSFUL COMPLETION TMENT PROGRAM. (A) GENERALLYAny prisoner who, in the judgment

P.L. 103-322

See. 32001

Director of the Bureau of Prisons, has successfully completed a program of residential substance abuse treat ment provided under paragraph (1) of this subsection, shall

of the

for substance abuse and discontinue such conditions on determining that substance abuse has recurred. (B) PERIOD OF CUSTODY.The period a prisoner con victed of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve. (3) REPoRTThe Bureau of Prisons shall transmit to the Committees on the Judiciary of the Senate and the House of Representatives on January 1, 1995, and on January 1 of each year thereafter, a report. Such report shall contain (A) a detailed quantitative and qualitative description of each substance abuse treatment program, residential or not, operated by the Bureau; (B) a full explanation of how eligibility for such pro grams is determined, with complete information on what proportion of prisoners with substance abuse problems are eligible; and (C) a complete statement of to what extent the Bureau has achieved compliance with the requirements of this title. (4) AUTHORIZATION OF APPROPRIATIONS.There are authorized to be appropriated to carry out this subsection (A) $!3,500,000 for fiscal year 1996; (B) $18,900,000 for fiscal year 1997; (C) $25,200,000 for fiscal year 1998; (D) $27,000,000 for fiscal year 1999; and (E) $27,900,000 for fiscal year 2000. (5) DEFINITIONS.AS used in this subsection (A) the term residential substance abuse treatment means a course of individual and group activities, lasting between 6 and 12 months, in residential treatment facilities set apart from the general prison population (i) directed at the substance abuse problems of the prisoner; and (ii) intended to develop the prisoners cognitive, behavioral, social, vocational, and other skills so as to solve the prisoners substance abuse and related problems; (B) the term eligible prisoner means a prisoner who is (i) determined by the Bureau of Prisons to have a substance abuse problem; and (ii) willing to participate in a residential sub stance abuse treatment program; and
-

remain in the custody of the Bureau under such conditions as the Bureau deems appropriate. If the conditions of confinement are different from those the prisoner would have experienced absent the successful completion of the treatment, the Bureau shaU periodically test the prisoner

108 STAT. 1897

Appendix D Page 15

Rh 103-322

LAWS OF 193rd CONG-2nd SESS

Sept. 13

Sec. 32001
(C) the term aftercara means placement, case management and monitoring of the participant in a commu nity-based substance abuse treatment program when the

participant leaves the custody of the Bureau of Prisons. (6) COORDINATION OF FEDERAL ASSISTANCE.-The Bureau of Prisons shall consult with the Department of Health and Human Services concerning substance abuse treatment and related services and the incorporation of applicable components of existing comprehensive approaches including relapse preven tion and aftercare services..

Appendix D Page 16

Case 3:09-cv-01172-HA

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Page 1 of 15

Page ID#: 225

U.S. Department of Justice Federal Bureau of Prisons

Prograrri Staterrient

OPI: NU SUBJECT:

CPD 8287/9/99

Sentence Computation Manual (CCA of 1984)

This roqram Sta.nt txai.smits the PURPOSE AND SCOPE. e:.tnc: Computaton 4anua which eszdblishes thc olicies rtd ornputation of sentences imposed or procedurcs for the vioatons of the United States Code urdLr the statutes of th Co,rcr hensive Crime Contro ct of 1984 CCC.) On October 12, 1984, President Reagan signed the Comprehensive Two major components Crime Control Act of 1984 (CCCA) into law. of this law, the Sentencing Reform Act of 1984 (SRA) and the Insanity Reform Act of 1984, completely restructured the sentencing guidelines and policies of the United States Courts. After the effective date of the SRA on November 1, 1987, a number of United States Court decisions found all or parts of the SRA As a result, the SRA was implemented unconstitutional. nationally in various ways.
:h Supreme Court anuary 18, 1989, in Mistretta v. On cons: icred the const.itu :onality of the sente::cinq guidelines and This Manual ruled Lh the guid& ines wcr constitucioial. ic instructions for mputing senerces i:rod under LL :CA both before and after the Mistretta dezsion. DIRECTIVES AFFECTED a. b. Directives Rescinded. Directives Referenced.

None.
None.

Johnson Dec. Attachment 4 Page 1 ofl5

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CN04,

Page ID#: 230

PS 5880.28 June 30, 1997 Page l-78B

The effective date for 3621(e) the Bureau established in the DAPS Manual was June 26, 1995. No prisoner could be released under this provision prior to that date. Prisoners who began participating in the unitbased portion of the comprehensive program on or before August 17, 1995 that could lead to a 3621(e) Release Date, and who had a detainer (including an INS detainer) on file, or who had a detainer filed after participation in the unitbased portion of the comprehensive program began must be released directly from the institution to the authority (or the official acting in their These prisoners behalf) who placed the detainer. are required to participate in institution transitional services for at least 180 days before release to the detairier.

DAPS program determinations and eligibility. (b) ISM staff do not make determinations regarding prisoner They eligibility for a sentence reduction under 3621(e) should, however, be aware of the eligibility requirements in order to provide the DAP Coordinator and Unit Manager with information received through ISM functions that may affect prisoner eligibility for a sentence reduction under 3621(e).
.

Only a new law prisoner is eligible for an early Prisoners not eligible for the early release under 3621(e), release provisions of 3621(e) include:
I

A prisoner with a detainer on file (including a consecutive old law sentence detainer and an INS detainer) who was not in a unit-based portion of the comprehensive program on or before August 17, 1995. A prisoner whose current offense was a crime of violence as defined in the Program Statement on Definition of Term, Crimes of Violence. A prisoner who has a prior conviction for homicide, forcible rape, robbery or aggravated assault. An INS detainee. A pretrial prisoner including a presentenced prisoner. A contract state prisoner.

Johnson Dec.

Attachment 4 Page 6 of 15

Appendix E Page 18

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Page 7 of 15
CN04,

Page ID#: 231


PS 5880.28

June 30, 1997


Page 1

78C

A District of Columbia Code prisoner. An old law prisoner (date of offense occurred prior to November i, 1987) A military prisoner (includes Coast Guard>.

It is important that ISM and unit staff thoroughly research and investigate any information that might lead to the placement or removal of a detainer.
(c) The 3621(e) (2) (B>

Under 3621 Ce) (2) (B),

sentence reduction. a prisoner may receive a sentence

reduction but such sentence reduction may not be more than one year from the term the prisoner must otherwise serve.

The Bureau interprets the statutory language to mean that any sentence reduction of one year or less shall be No sentence deducted from the projected SRD of the sentence. The date produced reduction greater than one year is authorized as a result of the tentative senterce reduction shall be termed
the 3621(e) Release Date. (d) Tentative sentence reduction. ISM staff make

a tentative sentence reduction only after receiving a NOTIFICATION OF INMATE 3621E ELIGIBILITY form (Attachment H to the DAPS Manual) that has been signed by the DAP Coordinator and No tentative sentence reduction shall be awarded the Warden. without the signatures of the DAP Coordinator and Warden on Attachment H. A properly executed Attachment H is ISMs authority to calculate the tentative sentence reduction. Attachment H shall be placed in the Judgment and Commitment File on top of the judgment and commitment document. The SENTRY 3621E Release Date calculation is 1 activated wher the Attachment H date in the sentence that reads He/she is expected to complete the requirements of the residential program on (blank) date, is entered into the This date SENTENCE MONITORING CALC/UPDATE COMPUTATION screen shall be referred to as the 3621E CRPS date. The formula for computing a tentative 3621E Release Date, based on the tentative one year sentence reduction, is a simple arithmetical calculation. The formula is:
Projected SRD minus one year = Tentative 3621E Release Date.

Johnson Dec. Attachment 4 Page 7 of 15

Appendix E Page 19

Case 3:09-cv-01172-HA

Document 13-5

Fed 11/12/09

Page 8 of 15
CN04,

Page ID#: 232

PS 5880.28 June 30, 1997 780 Page 1


-

SENTRY is programmed to subtract one year from the projected SRD to produce the tentative 3621E Release Date SENTRY may procuce a date that is earlier than the date on which the calculation is performed but will not produce a date that is earlier than the 3621E CRPS date since no sentence reduction may occur any earlier than the completion date of the unitbased portion of the DAPS residential program
The SENTRY program will default to the 3621E CRPS date if it is less than one year from the projected SRO and that date will become the tentative 3621E Release Date Definitive SENTRY instructions follow:
I

Enter the access transaction code which will produce the SENTENCE MONITORING CALC/UPDATE COMPUTATION screen.
In the 3621E CRPS MT field, the 3621E CRPS date.

enter

This RPC the computation. transaction will produce the 3621E REL DT, the PROJ SAT DT and the If PROJ SAT METH of 3621E CMPL the 3621E CRPS date is less than one year from the projected SRJJ, then SENTRY will default to the 3621E CRPS date and that date will become the 3621E Release Date.

Notification of CCC placement date. (e) Following receipt of Attachment H, ISM will receive a NOTIFICATION OF CCC PLACEMENT DATE form (BP-S628) if the institution is unable to transfer the prisoner to a CCC for Completion of the Community Program for Substance (CCPS) Abuse In other words, if some of the required as approved by the CEO CCC time encroaches into the full one year sentence reduction, then the Unit Manager shall forward the BP-S628 to ISM which will include the 3621E CRPS date, the date on which the prisoner will be placed in a CCC, and the number of days the prisoner will be required to remain in the CCC for the CCPS Abuse.

ISM staff shall enter the information from form BP-S628 into SENTRY which will produce the final 3621E Release ISM staff must manually calculate a 3621E CCPS date as Date (ISM staff may wish to use the INDEPENDENT explained below SENTENCE COMPUTATION transaction to assist in the calculation of the 362lE CCPS date.
Johnson Dec.

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Appendix E Page 20

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Filed 11/12/09

Page 9 of 15
CN04,

Page ID#: 233

PS 588028 June 30, 1997 Page 1 78E


-

Definitive SENTRY instructions follow:


S

From form BP-S628, following the instructions in the second sentence that states, He/she will be placed in a communitycorrections center on (blank) date for (blank) days, add the number of days to be spent in a community corrections center (CCC) to the date on which the prisoner will be furlough transferred to the CCC (back up one day) This calculation will produce a Completion of Community Program for Substance Abuse date or 3621E CCPS date. Enter into SENTRY the access transaction code which will produce the SENTENCE MONITORING CALC/UPDATE COMPUTATION screen.
In the 3621E CRPS MN field, enter the 3621E CRPS date from form BP 5628.

In the 3621E CCPS MN field, enter the 3621S CCPS date that was manually calculated.
RPC the computation. This transaction will produce the 3621E REL DT, the PROJ SAT DT and the PROJ SAT METH of 3621E CMPL,

(f) Removal of a 3621E Release Date. In short sentence cases, the possibility exists that the 3621E Release Date may be on, or so close to, the 3621E CRPS date that transfer to a CCC cannot be effected on or before arrival of the 362lE As a result, the 3621E Release Date shall be Release Date removed pending further action by the Unit Staff. If a custody time credit to be on or earlier performed, then the sentence is reduced, or additional prior is awarded, and causes the 3621E Release Date than the date on which the calculation is 3621E Release Date shall be removed.

If a sentence becomes inoperative (eg., escape, civil contempt, appeal bond release, etc ) prior to the 3621E Release Date, then the 3621E Release Date shall be removed. Whenever ISM staff remove a 3621E Release Date, Attachment H remains in the Judgment and Commitment File and a memorandum shall be promptly sent to the Unit Manager (copy to the DAP Coordinator) that explains the removal

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Definitive SENTRY instructions follow: From form BP-S628, following the instructions in the second sentence that states, He/she will be placed in a community-corrections center on (blank) date for (blank) days, add the number of days to be spent in a community corrections center (CCC> to the date on which the prisoner will be furlough transferred to This calculation the CCC (back up one day). will produce a Completion of Community Program for Substance Abuse date or 3621E CCPS date. Enter into SENTRY the access transaction code which will produce the SENTENCE MONITORING CALC/UPDATE COMPUTATION screen. In the 3621E CRPS MN field, enter the 3621E CRPS date from form B? $628. In the 3621E CCPS MN field, enter the 3621E CCPS date that was manually calculated. This RPC the computation. transaction will produce the 3621E REL DT, the PROJ SAT DT and the PROJ SAT METH of 3621E CMPL.

In HshortH Removal of a 3621E Release Date. (f) Release the 3621E exists that the possibility cases, sentence Date may be on, or so close to, the 3621E CRPS date that transfer to a CCC cannot be effected on or before arrival of the 3621E As a result, the 3621E Release Date shall be Release Date. removed pending further action by the Unit Staff.

If a custody time credit to ne on or earlier performed, then the

sentence is reduced, or additional prior is awarded, and causes the 3621E Release Date than the date on which the calculation is 3621E Release Date shall be removed.

If a sentence becomes inoperative (e.g., escape, civil contempt, appeal bond release, etc.> prior to the 3621E Release Date, then the 3621E Release Date shall be removed.
Whenever ISM staff remove a 3621E Release Date, Attachment H remains in the Judgment and Commitment File and a memorandum shall be promptly sent to the Unit Manager (copy to the DAP Coorainator) that explains the removal

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-

If the 3621E Release Date is removed as the result of the reasons just discussed in tne preceding paragraphs, ISM should anticipate Cexceot in cases of inoperative time) receiving a form BP-S628 that will cause a new 3621E Release Date to be Local recalculated as discussed in paragraph (e) above. procedures should be established to monitor these situations. Definitive SENTRY instructions follow for removal Release Date: 3621E the of
Enter the access transaction code which will produce the SENTENCE MONITORING CALC/UPDATE COMPUTATION screen.

Delete (space through) the date in the 3621E CRPS MN field.


RPC the computation This transaction will eliminate the 3621E Release Date and produce a projected SRD based on current sentence data.

For a (g) Attachment C, SRD reinstatement. community-based program failure with a 3621E Release Date, the Community Corrections Manager (CCM) shall execute CHANGE IN DRUG ABUSE TREATMENT PROGRAM STATUS MEMORANDUM (Attachment C) and If the form is forward it to the appropriate institution ISM not received by the time the inmate is returned to an institution, ISM staff shall promptly contact the appropriate CCM and request that the form be sent via fax.
-

When Attachment C is received, ISM staff shall remove the 3621E Release Date and cause a recalculation of sentence, as described above, to produce a new projected SRD.
Attachment C shall be placed in the Judgment and Commitment File on top of any prior S 3621(e) document. Notification procedures for 3621E Release (h) For each prisoner who has a Date new information or changes. 3621E Release Date, ISM staff shall promptly notify the Unit Manager (copy to the DAP Coordinator) via memorandum whenever a sentence change occurs as a result of a court action or imposition of a new sentence, or a change in prior custody time credits.

The memorandum shall include:


S S

An explanation of the change,


Effect on the 3621E Release Date and,

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-

A request that ISM be promptly notified as to any action that is taken with regard to the 3621E Release Date.

A copy of any memorandum sent or received shall be filea in the Judgment and Commitment file on top of any prior 3621(e) document.
If a detainer is received, ISM staff shall forward a copy of form DETAINER ACTION LETTER C (BPS394) to the DAP Coordinator in addition to the copy routinely sent to the Unit Manager ISM staff shall note the Judgment and Commitment file copy of the form BP-S394 that a copy has been sent to the DAP Coordinator. 3621E Release Date restorations, (1) ISM staff shall restore a 3621E Release Date that was removed only upon receipt of a new Attachment H or of a NOTIFICATION OF CCC PLACEMENT DATE form BP-S628 For a 362lE Release Date restoration based on the receipt of a new Attachment H, follow the SENTRY instructions in subparagraph (a) above For a form BPS628 restoration, follow the instructions in paragraph (a) above.
(j)

or forfeited GCT,
I

Disallowed and forfeited GCT For disallowed the following information and procedures apply:

If the 3621E Release Date is one year earlier than the projected SRD, then SENTRY will automatically make that date later by the exact number of days disallowed or forfeited. If the 3621E Release Date is less than one year earlier than the projected SRD, then the number of days disallowed or forfeited must manually be added to the 3621E Release Date to arrive at a new date. The new date must be manually entered into the 3621E CCPS MN field on the SENTENCE MONITORING CALC/UPDATE COMPUTATION screen and recalculated (RPC) SENTRY will produce the 3621E PEL DT, the PROJ SAT DT and the PROJ SAT METH of 3621E CMPL.

ISM procedures in a CCC. After the prisoner (k) arrives in a CCC for the community-based treatment program, the 3621E Release Date may be extended in limited circumstances (see No extension can be made to the Drug Abuse Program Manual) 3621E Release Date by the ISM (or someone acting in that capacity) without receipt of a form NOTICE TO INMATE THE PREVIOUSLY SCHEDULED RELEASE DATE IS BEING DELAYED (Attachment F
.

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iron. the Program Statement on Intensive Confinement Center The CCM must sign Attachment F for an extension Program (ICCP)) of the 3621E Release Date which will usually be for a period of time not to exceed 30 days.

If time constraints prevent the CCM from extending the 3621E Release Date prior to a prisoners return to an institution, then institution ISM staff shall make the change If the Attachment F does not accompany the prisoner to the institution, ISM staff shall contact the CCM and request that the Attachment F be sent via a fax.
Attachment F shall be placed in the Judgment and When ISM Commitment File on top of any prior 3621(e) document receives an Attachment F, the following instructions apply:
S

Enter into SENTRY the access transaction code which will produce the SENTENCE MONITORING CALC/UPDATE COMPUTATION screen. In the 3621E CCPS MN field, enter from Attachment F from the first sentence on the form the has been delayed until (1ank) date. This RPC the computation. transaction will produce the new 3621E REL DT, the PROJ SAT DT and the PROJ SAT METH of 3621E cMPL.

New law and old law sentence combinations. (1) Three basic guidelines have been established for making a 3621(e) eligibility determination when a prisoner has a combination of new law and old law sentences.
I

A new law sentence followed by a consecutive old law sentence is not eligible for the (Note: If 3621(e) early release benefit. the prisoners participation in the unit based portion of the comprehensive program began on or before August 17, 1995, and a consecutive old law sentence was on file as a detainer upon completion of the program, then the prisoner would be eligible for the 3621(e) early release benefit without participating in the transitional portion of the program in a CCC.) A new law sentence that is consecutive to an old law sentence and that qualifies is eligible for the 3621(e) early release

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benefit providing that the time required to serve in a CCC is accomplished solely during the service of the new law sentence.
S

A new law sentence that is served concurrently with an old law sentence, and that qualifies, is eligible for the 3621(e) early release benefit If the final 3621E Release Date is earlier than the SRD or Presumptive Parole Date of the old law sentence, then the final 3621E Release Date shall be adjusted to match the later old law release date using the following instructions:
S

Enter into SENTRY the access transaction code which will produce the SENTENCE MONITORING cALC/UPDATE COMPUTATION screen In the 3621E CRPS MN field, enter the 3621E CRPS date from form BP-S628. In the 3621E CCPS MN field, enter the old law final release dateS
RPC the computation.

This transaction will produce the 3621E REL DT, the PROJ SAT DT and the PROJ SAT METH of 3621E CMPL.

Any combination of new law and old law sentences that does not meet the above criteria shall be referred to the Central Office Chief of Operations for assistance.

(m) Release verification for an inmate with a 3621E Release Date. Prior to releasing an inmate with a 3621E Release Date, ISM staff shall verify that a properly executed Attachment K (Final Review of Inmates Provisional Release) and Central Office approval have been received and are included as (Note The Attachment K part of the inmates release paperwork and Central Office approval must be on file in the Judgment and Commitment File prior to release in the detainer exception cases or prior to furlough transfer to a CCC.)

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1. Implementation of amendments to 18 U.S.C. 3624(b) of the Violent Crime Control and Law Enforcement Act of 1994 (P.L. The Violent Crime Control and Law Enforcement Act 103-322). (VCCLEA) provisions that amended 3624(b) became effective on September 13, 1994 and applies to offenses committed on or after VCCLEA sentences of more that date but before April 26, 1996. than one year, other than a term of life, are authorized to receive credit of up to 54 days good conduct time (GCT) at the end of each year of imprisonment, provided the inmate satisfactorily complies with the provisions of amended 3624(b). Credit for the last partial year is prorated
An Old Law (OL) sentence refers to a sentence imposed for an A Sentencing offense that occurred prior to November 1, 1987. Reform Act of 1984 (SRA) sentence refers to a sentence imposed for an offense that occurred on or after November 1, 1987 but before September 13, 1994, a VCCLEA sentence refers to a sentence imposed for an offense that occurred on or after September 13, 1994 but before April 26, 1996; and a Prison Litigation Reform Act of 1995 (PLRA) sentence refers to a sentence imposed for an offense that occurred on or after April 26, 1996.

Under the VCCLEA,

amended 3624(b),

states,

(1) A prisoner (other than a prisoner serving a sentence for a crime of violence) [emphasis added) who is serving a term of imprisonment of more than one year, other than a term of imprisonment for the duration of the prisoners life, shall receive credit toward the service of the prisoners sentence, beyond the time served, of fifty-four days at the end of each year of the prisoners term of imprisonment, beginning at the end of the first year of the term, unless the Bureau of Prisons determines that, during that year, the prisoner has not satisfactorily complied with such institutional disciplinary regulations as have been approved A by the Attorney General and issued to the prisoner. more a term of serving imprisonment than of prisoner who is than [emphasis other of violence, crime for a 1 year added) the the prisoners for of duration of imprisonment term a life, may receive credit toward the service of the prisoners sentence, beyond the time served, of up to 54 days at the end of each year of the prisoners term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with such institutional disciplinary regulations [emphasis added). If the Bureau determines that, during that year, the prisoner has not satisfactorily complied with such

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P.S. 5330.10 May 25, 1995 Chapter 5, Page 1 CHAPTER 5 RESIDENTIAL DRUG ABUSE TREATMENT PROGRAMS 5.1 [Institution residential drug abuse treatment program Residential drug abuse treatment is available at 550.56. It is a course of selected Bureau of Prisons institutions. individual and group activities provided by a team of drug abuse treatment specialists and the drug abuse treatment coordinator in a treatment unit set apart from the general prison population, lasting a minimum of 500 hours over a six to twelve-month period. Inmates enrolled in a residential drug abuse treatment program shall be required to complete subsequent transitional services programming in a conimunity-based program and/or in a Bureau institution.] adhere to program Staff expectations are Lhat all participants rules and behave in a manner that is consistent with the program philosophy, as well as comply with Bureau of Prisons rules and regulations. 5.2 Program Structure

Ordinarily, inmates can Duration and Staffing. 5.2.1 complete a residential treatment program in nine to 12 months through half-time participation in programming and half-time Six-month programs assignment to an institution work detail. Participants require full-time treatment program participation. must complete at least 500 hours of drug abuse treatment Typically, when limited time remaining on a programming. sentence precludes participation in a six to 12 month program, the inmate shall be referred for non-residential drug abuse treatment services. To provide the full course of treatment to all participants, it is essential that a treatment staff to inmate ratio of 1 24 is Treatment staff is defined as the Drug maintained at all times Abuse Treatment Coordinator and the drug abuse treatment specialists assigned to the unit. Locations Residential Drug Abuse Treatment programs 5 2 2 are located at the following institutions: Mid-Atlantic Region FCI-Alderson, WV FCI-Butner, NC FMC-Lexington, KY FCI-Morgantown, WV USP-Terre Haute, IN North Central Region FCI-Englewood, CO USP-Leavenworth, KS PCI-Oxford, WI FMC-Rochester, MN FPC-Yankton, SD

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P.S. 5330.10 May 25, 1995 Chapter 5, Page 3 on or after October 31, 1994 must be interviewed using the Residential Drug Abuse Treatment Eligibility Interview and have a treatment plan developed using the Residential Drug Abuse Treatment Planning Interview, 5.3.4 Treatment Plans. A treatment plan must be completed on each inmate participant prior to completion of the Orientation (Phase I) of treatment. Incentive Program. All residential treatment programs 5.3.5 must offer an incentive program to enhance inmate participation in treatment (see Section 5.5 below for further discussion) 5.4 Program Procedures

5,4.1 Eligibility, n inmate must meet all the following [(a) criteria to be eligible for the residential drug abuse program. (1) The inmate must have a verifiable documented drug abuse Specifically, the inmate must meet the criteria for a rob1em.) diagnosis of an alcohol or illegal/illicit drug use disorder, Ordinarily this diagnosis is based on the American Psychiatric Associations Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). This diagnosis is determined through use of the Residential Drug Abuse Eligibility Interview and supported through documentation in the inmates central file, presumably in the Pre-sentence Investigation Report (PSI). The standard of evidence sought in the review of the PSI, or other official documentation in the central file, must reflect an When a positive urinalysis in inmates history of substance use. the institution is the only documentation of substance use, the inmate shall be referred to drug education or non-residential While in drug education and/or non-residential drug treatment. abuse treatment services the inmate shall be further observed and examined regarding his/her substance use problem.
The inmate must have no serious mental impairment [(2> which would substantially interfere with or preclude full participation in the program. (3) The inmate must sign an agreement acknowledging his/her program responsibility.) (BP-S550.053 (Attachment B)).

Ordinarily, the inmate must be within thirty-six [(4) Inmates will be selected for program months of release.] admittance based upon the time remaining on their sentence. Ideally, inmates complete residential treatment and transfer directly to a CCC placement. When a residential treatment program is not appropriate, due to time constraints, staff may refer the inmate for the institutions non-residential drug treatment (see Chapter 4).

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U.S. Department of Justice Federal Bureau of Prisons

PROGRAM STATEMENT
OPT NUMBER DATE CPD/PSB P5330.11 3/16/2009

RULES EFFECTIVE: 3/16/2009

Psychology Treatment Programs

Approved: Harley G. Lappin Director, Federal Bureau of Prisons

1. PURPOSE AND SCOPE To establish policy, procedures, and guidelines for the delivery of Psychology Treatment Programs within the Bureau of Prisons (Bureau). The Psychology Treatment Programs Manual is a plain-language, comprehensive set of operational guidelines for the programs operated by psychologists and treatment specialists in the Bureau. The policy is designed to serve as a training device for psychologists and treatment specialists new to the Bureau. It is also a ready reference for more experienced Bureau psychologists and treatment specialists. With the exception of the Sex Offender Treatment Program and the Sex Offender Management Program, the manual includes the following Executive Staff-approved programs: a Drug Abuse Programs. Resolve trauma programs for women. Bureau Rehabilitation and Values Enhancement Program (BRAVE). Challenge Program (previously known as CODE). Mental Health Treatment Programs: Habilitation Program. Skills Program. Axis II Program. Mental Health Treatment Units (e.g., Step-Down Units).

Federal Regulations from 28 CFR are in bold type. Implementing instructions are in regular type.

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c. Tangible Incentives. If the Warden allows, incentives such as books, t-shirts, greeting cards, notebooks, pens, etc., may be presented to inmates participating in the non-residential drug abuse program.

2.5.

550.53 Residential Drug Abuse Treatment Program (RDAP).

2.5.1. Target Population. The RDAP targets the inmate who volunteers for treatment and has a diagnosable and verifiable substance use disorder, and is able to participate in the entire RDAP.

(a) RDAP. To successfully complete the RDAP, inmates must complete each of the following components: (1) Unit-based component. Inmates must complete a course of activities provided by drug abuse treatment specialists and the Drug Abuse Program Coordinator in a treatment unit set apart from the general prison population. This component must last at least six months. To ensure the Bureau provides evidence based treatment in its drug abuse treatment programs, the RDAP is a minimum of 500 hours. The RDAP has a duration of 9 to 12 months. (2) Follow-up services, If time allows between completion of the unit-based component of the RDAP and transfer to a community-based program, inmates must participate in the follow-up services to the unit-based component of the RDAP. (3) Transitional drug abuse treatment (TDA T) component. Inmates who have completed the unit-based program and (when appropriate) the follow-up treatment and are transferred to community confinement must successfully complete community-based drug abuse treatment in a community-based program to have successfully completed RDAP. The Warden, on the basis of his or her discretion, may find an inmate ineligible for participation in a community-based program. (b) Admission Criteria. Inmates must meet all of the following criteria to be admitted into RDAP. a. (1) Inmates must have a verifiable substance use disorder. b. (2) Inmates must sign an agreement acknowledging program responsibility. c. (3) When beginning the program, the inmate must be able to complete all three components described in paragraph (a) of this section. This includes the critical RRC or home confinement transfer to participate in the TDAT.

P5330.11 3/16/2009 Federal Regulations: bold type.

Chapter 2 Implementing instructions: regular type


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Example 1: A deportable inmate is unqualified for the RDAP because he or she cannot participate in the transitional drug abuse treatment component because he or she is not eligible for RRC placement. The NR DAP program is available for these unqualified inmates.

An inmate previously determined DAP UNQUAUFIED due to his or her ineligibility for an RRC is responsible for notifying the drug abuse treatment staff if there is a change in the inmates RRC status for reconsideration.
Example 2: If an inmate is found to be qualified for the RDAP and has begun to participate in the program, and then finds his or her RRC status to have changed; e.g., a detainer lodged, he or she may remain in treatment.

Inmates who are waiting for, or participating in the RDAP who are not eligible for transfer to an RRC, on or before the date of this policys implementation, will remain qualified for RDAP participation; and d. Ordinarily, have 24 months or more remaining on their sentence. 2.5.2. Staffing. With the exception of the co-occurring drug abuse treatment program as outlined in Section 2.5.3, DTSs will always maintain a caseload of 1:24. Residential DAPCs are to manage no more than 120 RDAP participants. This will be implemented as new positions become available. 2.5.3. Co-occurring Populations. The Bureau also operates RDAPs for inmates with co occurring substance use and serious mental health disorders. Questions and referrals for inmates with co-occurring disorders are directed to the Regional Psychology Programs Coordinator. RDAPs that include inmates with co-occurring disorders follow the same programming, policies, and practices of an RDAP with the following exceptions: There is an additional track for inmates with a co-occurring diagnosis that focuses on understanding ones disorder, issues with self-medicating and how to manage prescribed medications and medication compliance. There is a staff-to-inmate ratio of 1-to-8 for the DTSs who treat and manage these groups.

2.5.4. PhysicallMedical Populations. Inmates who volunteer for RDAPs and have physical disabilities or medical conditions that require their assignment to a unit other than the RDAP unit to ensure handicap accessibility or medical monitoring may be qualified for the RDAP if the inmate is: Otherwise eligible for the RDAP, including eligibility for transitional drug abuse treatment; i.e., an RRC or home confinement placement. Able to fully participate in all aspects of the RDAP.
P5330.11 3/16/2009 Federal Regulations: bold type. Chapter 2 Implementing instructions: regular type
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Able to be held accountable to the same standard of treatment and conduct as all other RDAP participants (e.g., complete homework, participate in all assigned groups, behavior consistent with treatment requirements). Although Health Services staff are always the final decision-maker regarding an inmates placement outside of the drug treatment unit for medical reasons, drug abuse treatment staff are responsible for identifying, monitoring, and documenting this exception in the inmates DAP records. Ordinarily, these inmates are excused from residential drug treatment unit activities only for reasons of sleep and unit accountability purposes (special census counts, etc.). 2.5.5. Referral and Redesignation. An inmates initial designation will be made by the Designation and Sentence Classification Center (DSCC) in Grand Prairie, Texas. Institution DAP Coordinators and Regional Psychology Program Coordinators will monitor waiting lists to ensure inmates are transferred for RDAP with sufficient time to complete the entire RDAP program before their release from Bureau custody, ordinarily at 24 months. Inmates are to be informed that they may be transferred to any suitable Bureau RDAP based on their release date. This notification is included in the Agreement to Participate for the RDAP. Inmates waiting to enter the RDAP who are living on the treatment unit or on an adjacent unit are to adhere to the same unit rules and decorum as those inmates participating in the RDAP. Ordinarily, if these inmates do not follow the rules and decorum of the RDAP unit, (e.g., negatively impacting other RDAP participants and/or those waiting for RDAP), they will receive a warning of removal from the RDAP waiting list. This warning will be made during a treatment team meeting with all staff involved in the process. The DAPC, or designee, will document this warning in PDS. If the inmates behavior does not change, he or she will be removed from the RDAP waiting list. Treatment staff will change the inmates appropriate SENTRY assignment and document the removal in PDS. After six months, the inmate may formally reapply for RDAP, through an Inmate Request to Staff form (BP-AO 148). The application will be considered in a treatment team meeting with the inmate. The goal of this meeting is to assess any changes in attitude or behavior that the applicant may have made while awaiting re-consideration for the RDAP. The treatment team will make the decision regarding the inmates placement on the waiting list. 2.5.6. The RDAP Housing Unit. RDAPs are separated from the inmate general population. By living together in a unit where all inmates work together to create a community that supports prosocial attitudes and behaviors, the RDAP unit isolates program participants from the negative peer pressure of the larger prison environment.

P5330.11 3/16/2009 Federal Regulations: bold type.

Chapter 2 Implementing instructions: regular type


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Further, the RDAP unit must be solely for RDAP participants, as required by 18 U.S.C. 362 1(e). Inmates living on the RDAP unit must be: waiting for admission into the program; participating in the program; or RDAP completers. Whenever possible, there should be more inmates who are participating in or who have completed RDAP in the treatment unit than those waiting to enter treatment. Any compromise of this defined unit purity will invalidate eligibility for early release of all inmates on the unit. 2.5.7. Urine Surveillance. Urine surveillance is a regular component of effective treatment programming. Urine surveillance provides information to staff on an RDAP participants abstinence, coping mechanisms, and honesty. The Bureaus urine surveillance procedures allow for random testing, suspect testing, and testing after returning from a furlough. Therefore, inmates in the RDAP are subjected to the same urine surveillance procedures as the general population. On rare occasions there may be a clinical reason to test individual program participants or the entire population of the program. On these infrequent occasions, and with the permission of the Regional Psychology Programs Coordinator, staff may use program funds for urinalysis testing. However, this is to be an extremely rare event and is the only situation where Drug Abuse Program funds may be used for urinalysis testing.
2.5.8. RDAP Program Admission.

apply for the RDAP by submitting requests to a staff member (ordinarily, a member of the unit team or the Drug Abuse Program Coordinator). (d) Referral to RDAP. Inmates will be identified for referral and evaluation for RDAP by unit or drug treatment staff. Typically, inmates are identified for referral to the RDAP by psychology staff or unit management staff.
(1) Referral to DAPC. Upon completion of the Psychology Intake Screening, the psychologist will refer inmates with a substance use history and an interest in treatment to the institutions DAPC. The DAPC will further screen the inmate for the RDAP or for referral to the non residential drug abuse program or the drug education course. Inmates may also apply for the program by submitting an Inmate Request to Staff form to the DAPC. (2) Screening. Upon assignment of a RDAP referral by the DAPC, the DTS will review an inmates Central File and other collateral sources of documentation to determine if: There is sufficient time remaining on the inmates sentence, ordinarily 24 months. There is documentation available to verify the inmates use of specific drugs, including alcohol. There is verification that can establish a pattern of substance abuse or dependence.
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550.53(c) Application to RDAP. Inmates may

Implementing

instructions:

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There has been consultation with the Education Department (see Section 2.4.5) and evidence is documented that the inmate cannot participate in the program; e.g., has a cognitive impairment or learning disability that precludes participation or is unable to participate in the program in the language in which it is conducted. The inmate can complete all of the components of the RDAP; e.g., is able to participate in community transition drug abuse treatment. When seeking independent verification, examples of other collateral documentation that may be used include: Documentation to support a substance use disorder within the 12-month period before the inmates arrest on his or her current offense. Documentation from a probation officer, parole officer, social service professional, etc., who has information that verifies the inmates problem with substance(s) within the 12-month period before the inmates arrest on his or her current offense. Documentation from a substance abuse treatment provider or medical provider who diagnosed and treated the inmate for a substance abuse disorder within the 12-month period before the inmates arrest on his or her current offense. Multiple convictions (two or more) for Driving Under the Influence (DUI) or Driving While Intoxicated (DWI) in the 5 years prior to his or her most recent arrest. The DTS will document a summary of the information gathered from the review and enter it into PDS. NOTE: Recreational, social, or occasional use of alcohol and/or other drugs that does not rise to the level of excessive or abusive drinking does not provide the required verification of a substance use disorder. Any verifying documentation of alcohol or other drug use must indicate problematic use; i.e., consistent with the American Psychiatric Associations Diagnostic and Statistical Manual of Mental Health Disorders (DSM) criteria. (3) No Verifying Documentation. In the event there is no verifying documentation in the inmates Presentence Investigation Report or other official documentation in the Central File, the DTS will meet with the inmate. The DTS will tell the inmate there is no verifying documentation and offer him or her the following information: As there is no substantiating documentation for a substance use diagnosis, you have the following options: 1. You may volunteer for the non-residential drug abuse program. 2. You may seek documentation from a substance abuse treatment provider where you previously received treatment. This document must have been written at the time services were provided and must demonstrate that a substance use diagnosis
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was completed at the time you were seen, and that treatment was provided for that documented substance abuse diagnosis. For example, the documentation may not state that the substance abuse treatment provider thought you had an alcohol or other drug problem when he or she saw you for a medical or psychological problem. Documentation must be sent to, and received by, the drug abuse treatment staff in the institution. It is not to be sent to you for you to provide to the drug abuse treatment staff. If the documentation is acceptable, you will be referred to the DAPC for a diagnostic interview. 3. You may seek documentation from a probation officer, a parole officer, a social services professional, etc., who has information that verifies your problem with illegal or illicit substances. Documentation must be sent to, and received by, the drug abuse treatment staff in the institution. It is not to be sent to you for you to provide to the drug abuse treatment staff If the documentation is acceptable, you will be referred to the DAPC for a diagnostic interview. 4. If you have physical proof of your substance use that may be examined by medical staff to prove an addiction, e.g., track marks, abscesses, etc., you may sign a consent form allowing the drug treatment staff to receive the results of such examination from Health Services. If the documentation is acceptable, you will be referred to the DAPC for a diagnostic interview.
5. If you received substance detoxification as you entered the Bureau, you may sign a consent form for the drug treatment staff to verify your detoxification with Health Services.

6. Upon obtaining accepted documentation, you will be referred to the DAPC for a diagnostic interview.
2.5.9. The Clinical Interview.

Program Coordinator decides whether to place inmates in RDAP based on the criteria set forth in paragraph (b) of this section.
If verifying documentation is found or produced, and only then, inmates who volunteer for the RDAP will be personally interviewed by the DAPC. Interviews will be conducted based on the inmates proximity to release, ordinarily no less than 24 months from release. The DAPC will conduct the personal interview and use his or her psychological training to form a clinical judgment to determine if an inmate has a substance use diagnosis (i.e., substance dependence and/or substance abuse) in accordance with the American Psychiatric Associations

550.53(e) Placement in RDAP. The Drug Abuse

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Diagnostic and Statistical Manual of Mental Health Disorders, (DSM). All verifying documentation used is to be consistent in time, intensity, and duration with the inmates selfreport. On the basis of the clinical interview, the DAPC may conclude that the inmate either does or does not have a diagnosis of a substance use disorder. In some instances, the DAPC may find the inmate does not have a diagnosis, even if there is substantiating documentation. The DAPC must also determine if the inmate can fully engage in treatment; i.e., communicate in English and/or comprehend treatment expectations. An example of those who may not comprehend treatment expectations is an inmate who is cognitively impaired or has a severe learning disability. In some instances, the DAPC may find the inmate cannot fully engage in treatment and does not qualify for the program, even if there is substantiating documentation (see 18 U.S.C. 3624(f)(4) and 28 CFR 544.40 544.44).
-

The DAPC will document the result of the clinical interview in PDS, including the substance use diagnosis and the diagnostic criteria used to formulate the diagnosis and notify the inmate of the outcome. The DAPC will also ensure the appropriate SENTRY code(s) are entered and the appropriate documents are signed. Appropriate documentation includes the Agreement to Participate in the Bureau ofPrisons Residential Drug Abuse Treatment Program form (BP-A0749) and the waiver of hearing to modify the court order (modification of the court order is completed on an inmate with a condition of supervised release that does not include a treatment stipulation). The DAPC will ensure that the appropriate SENTRY code(s) are entered and the appropriate documents are signed. Appropriate documentation includes the Agreement to Participate in the Bureau ofPrisons Residential Drug Abuse Treatment Program form (BP-A0749) and the waiver of hearing to modify the court order (modification of the court order is completed on an inmate with a condition of supervised release that does not include a treatment stipulation). Note: Inmates with a diagnosis of a substance use disorder are qualified for the RDAP whether or not they are eligible for the early release incentive. 2.5.10. Program Operations. The RDAP treatment modules direct the treatment program. Programming consists of a minimum of 500 contact hours; i.e., face to face contact between treatment staff and inmate participants, over no less than 9 months of half-day programming. To facilitate the modified therapeutic community, RDAP programming is conducted daily during day watch hours (excluding non-programming days, such as weekends and holidays) for half of the inmates work day. Supplemental treatment activities may occur during weekday evenings; however, evening treatment activities cannot be used to replace treatment during day watch hours. Treatment begins as soon as the inmate is in DAP PART status in SENTRY. Treatment staff are required to use the RDAP treatment journals, facilitator guides, manuals, and resource materials. As effective treatment technologies advance, treatment materials may be
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revised. Therefore, only the most current drug program materials, journals, facilitator guides, etc., are to be used. Additional programming may be used in the RDAP as approved by the DAPC in consultation with the Regional Psychology Treatment Program Coordinator (R-PTPC). The added treatment programming must be Cognitive Behavioral Therapy-based (CBT) or consistent with CBT and meet the goals stated within each of the RDAP treatment phases and modules. 2.5.11. Treatment Phases. All Bureau RDAPs are to be organized in phases. Each RDAP phase follows a clearly defined structure. Inmate movement through phases is based on his/her progress as determined by the inmates treatment team. In the Bureaus RDAP, phases are organized as follows: Phase I The Orientation Phase. Institutions are to provide an orientation packet that outlines the Bureau treatment program. In addition, any rules and/or expectations required by the RDAP in the institution will also be documented in the orientation packet.
-

During the Orientation Phase of treatment a thorough psychosocial assessment is conducted by the Treatment Specialist (see Sallyport). During the Orientation Phase of treatment, DTSs are to: Strive to build rapport and motivate the inmate to engage in treatment. Conduct the psychosocial assessment (this guides the development of the treatment plan). The treatment assessment must be conducted with the inmate. It is not a self-assessment instrument (see Sallyport). Present the inmates case at a treatment team meeting. These meetings are scheduled and conducted by the DAPC. The treatment team meeting is to assist with the development of the inmates treatment plan. Attend additional team meetings. These meetings provide the opportunity for staff to discuss each individual inmate. These discussions are to review the inmates progress in treatment and commitment to the program; for example, willingness to conform to the norms of the program, participate fully in groups, demonstrate positive attitudes, complete a statement that outlines his or her readiness for treatment, complete a realistic treatment plan, and learn to accept feedback from staff and peers.

The Treatment Coordinator will develop a schedule to conduct, at a minimum, at least one weekly team meeting to bring together the entire treatment team. The Treatment Coordinator will invite unit management staff for input into updating progress reports, training, and addressing any related issues.

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In addition, the DTS must complete an individualized progress report on each program participant every 60 days. The first progress report is due 60 days from the completion of the treatment plan. Phase I duration Ordinarily, Phase I should not last more than two months.
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Phase II The Core Treatment Phase. In the Core Treatment Phase, the inmate is expected to build positive relationships in group, on the treatment unit, with family/significant others, with institution staff, etc.
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Using the treatment journals and facilitator guides developed for the program, staff facilitate the inmates acquisition of thought processes and pro-social skills required to live a substance-free, crime-free, and well-managed life. Treatment progress reviews are to be completed every 60 days and documented in PDS. In addition, treatment staff are to observe program participants regularly on and off the unit (e.g., at work, during main line). This is done to determine if the inmates behavior in the program is consistent with his or her behavior throughout the institution. Phase II duration Ordinarily, the Core Treatment Phase will last no more than five months. Staff will monitor the participants behavior, personal insights, motivation, and commitment to treatment daily. Changes in behavior (positive or negative) are to be documented in the participants progress reviews.
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Phase III The Transition Phase. Phase III focuses on the inmate practice of pro-social skills acquired in treatment while developing realistic expectations for exiting the program.
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Phase ifi duration Ordinarily the Transition Phase will last no more than two months. Inmates are not to complete the program until they have mastered the expected behaviors of Phase ifi. See (a) Completion, below.
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2.5.12. Program Outcomes. How an inmate leaves a RDAP is based on the inmates behavior.

550.53(f) Completing the unit-based component of RDAP. To complete the unit-based component of RDAP, inmates must:
(a) Successful Completion.

(1) Have satisfactory attendance and participation in all RDAP activities; and (2) Pass each RDAP testing procedure. Ordinarily, we will allow inmates who fail any RDAP exam to retest one time.
Testing procedures for completion of any Phase of treatment are to be behavioral in nature. Completion is determined by the inmates behavior within the program and on the compound. An
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inmate is not to be moved from Phase to Phase in the RDAP without demonstrating that he or she has: Accepted and acknowledged his or her diagnosis. Taken on the responsibilities of the community. Made a commitment to positive change, as evidenced by observed positive behavior in his or her daily interactions. Expressed him- or herself in group, demonstrating the ability to give and receive appropriate feedback from other staff and inmates. Mastery of phase-related concepts. Inmates who do not demonstrate these behavioral changes are not ready for RDAP completion.
(b) RDAP Treatment Summary. Two weeks prior to the inmates scheduled date for RDAP completion, the DAPC will ensure the RDAP Treatment Summary is sent to the Unit Team and Transitional Drug Abuse Program Coordinator (T-DATC) in the region of release (see example on Sallyport). The DAPC should review the Treatment Summary for accuracy and completeness, and sign it prior to forwarding it to the unit team and T-DATC.

(c) Withdrawal/Incomplete. An inmate may withdraw voluntarily from the program. Withdrawals must be documented on the Change in RDAP and 3621(e) Status form (BP A0767) and forwarded to the Unit Team. If the inmate was previously determined ELIGIBLE, the DAPC, or designee, must change SENTRY to reflect ELIGIBLE to INELIGIBLE, change DAP PART to the applicable removal code, and forward the Change in RDAP and 3 621(e) Status form to the DSCC. An inmate may also be moved to incomplete status for many reasons: placement in the Special Housing Unit (SHU), removed from the institution on a writ, unforseen redesignation, etc. An incomplete does not mean the inmate is automatically a failure. The DAPC and the treatment team will make the decision on the inmates final treatment determination depending on the reason for his or her incomplete status. Inmates who do not complete the RDAP for reasons other than expulsion also require a Discharge Note with the reason(s) for non-completion documented in the Evaluation section of PDS. At that time the DAPC, or designee, is to make the appropriate changes to the inmates SENTRY assignment(s).

(d) Intervention and

550.53(g) Expulsion from RDAP.

(1) Inmates may be removed from the program by the Drug Abuse Program Coordinator because of disruptive behavior related to the program or unsatisfactory progress in treatment. (2) Ordinarily, inmates must be given at least one formal warning before removal from RDAP. A formal warning is not necessary when the documented lack of
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compliance with program standards is of such magnitude that an inmates continued presence would create an immediate and ongoing problem for staff and other inmates.
(a) Circumstances for an Intervention. Ordinarily, staff will provide the inmate with at least one treatment intervention prior to removal. However, in response to disruptive behavior or unsatisfactory progress, treatment staff will:

Meet with the inmate to discuss his or her behavior or lack of progress. Assign the treatment intervention(s) chosen to reduce or eliminate the behavior, or to improve progress. Warn the inmate of the consequences of failure to alter his/her behavior. Properly document in PDS the meeting and treatment intervention(s) assigned. Properly document in PDS changes to the inmates treatment plan, and ensure that both staff and the inmate sign the amended treatment plan. When appropriate, require the inmate to discuss his or her targeted behavior in the community. (b) Circumstances for Expulsion. In the event repeated treatment interventions are required in response to inappropriate behaviors or unsatisfactory progress the treatment team will meet to decide if the inmate will be removed from the program. Within two working days after a decision has been made to expel an inmate, the DAPC will: Verbally notifSr the inmate of his/her expulsion status. Notify the inmate and appropriate staff in writing of the reason for expulsion through the Change in RDAF and 3621(e) Status form. Update the pertinent SENTRY DRG assignments. Ensure proper documentation of the expulsion has been entered into PDS. An inmate may not ordinarily be removed immediately by the DAPC without a treatment intervention unless the inmate has committed a prohibited act that jeopardizes the institution and other inmates.

(3) 550.53(g)(3) Inmates will be removed from RDAP immediately if the Discipline Hearing Officer (DHO) finds that they have committed a prohibited act involving: (i) (ii) (iii) (iv) Alcohol or drugs; Violence or threats of violence; Escape or attempted escape; or Any 100-level series incident.

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An inmate may also be expelled from the program without a formal intervention if the inmate is determined to have violated confidentiality.

(4) 550.53(g)(4) We may return an inmate who withdraws or is removed from RDAP to hislher prior institution (if we had transferred the inmate specifically to participate in RDAP).
2.5.13. Discharge Note. Whenever an inmate leaves the RDAP for reasons other than completion, treatment staff will document the circumstance(s) concerning the inmates discharge in the evaluation section of PDS. 2.5.14. Re-application to the RDAP. An inmate who previously declined, withdrew, or failed RDAP may reapply for readmission to the program after 90 days through an Inmate Request to Staff form to the DAPC. The treatment team, in consultation when appropriate with the unit team, will decide on readmission. Considerations may include the inmates participation in the NR DAP program or DRUG ED, at the discretion of the DAPC. The DAPC will provide the treatment teams decision to the inmate in person and in writing. If readmitted to the same or to a different RDAP, the inmate will not receive any credit for prior treatment participation. 2.5.15. Program Achievement Awards.

550.54 Incentives for RDAP participation.

(a) An inmate may receive incentives for his or her satisfactory participation in the RDAP. Institutions may offer the basic incentives described in paragraph (a)(1) of this section. Bureau-authorized institutions may also offer enhanced incentives as described in paragraph (a)(2) of this section. (1) Basic incentives. (i) Limited financial awards, based upon the inmat&s achievementlcompletion of program phases. (ii) Consideration for the maximum period of time in a community-based treatment program, if the inmate is otherwise eligible. (iii) Local institution incentives such as preferred living quarters or special recognition privileges.
(iv) Early release, if eligible under 550.55. See the Program Statement Early Release Procedures Under 18 U.S.C. 3621(e). (2) Enhanced incentives. For those institutions notified that they are to use the Enhanced Incentives, following is a list of those incentives.

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(i) Tangible achievement awards as permitted by the Warden and allowed by the regulations governing personal property (see 28 CFR part 553). (ii) Photographs of treatment ceremonies may be sent to the inmates family. (iii) Formal consideration for a nearer release transfer for medium and low security inmates. (b) An inmate must meet hislher financial program responsibility obligations (see 28 CFR part 545) and GED responsibilities (see 28 CFR part 544) before being able to receive an incentive for his/her RDAP participation. (c) If an inmate withdraws from or is otherwise removed from RDAP, that inmate may lose incentives he/she previously achieved.
Most psychology treatment programs offer achievement awards for inmates who participate. (Programs that do not offer achievement awards are noted within the specific programs description.) Achievement awards for RDAP are offered to participants who demonstrate the behaviors that reflect the Attitudes of Change, a commitment to treatment, conformity with program norms, progress on treatment plan goals, and behaviors that are expected in the general society. (a) Earning Program Achievement Awards. Inmates must:

Be on time for group. Have no unexcused absences. Not leave group without approval from the Treatment Specialist. Not eat, drink, or sleep in group. Complete all assigned activities. Dress appropriately: clean institutional clothing, shirts tucked in, shoes tied, no headphones, no jackets, no coats, properly fitting pants, no sunglasses, and no head covering other than approved religious headwear. Be active in group. Put forth positive efforts in accomplishing treatment goals, as determined by the treatment team within the treatment plan. Comply with education, Financial Responsibility Program (FRP) obligations, and pre-release preparation programs.

(b) Specific Achievement Awards. Limited Financial Awards. An inmate may earn a financial award to offset time lost from work. The amount of this award is $40 for each phase of treatment. However, a financial

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award may be reduced by the treatment team based upon the inmates participation and progress. A financial award is never to be increased. Nearer Release Transfer. Formal consideration may be given for a nearer release transfer for medium and low security inmates. Local Incentives. Institutions may offer incentives such as preferred living quarters, early chow, washer/dryer on unit, etc. Tangible Incentives. With the Wardens approval, tangible incentives maybe given, (e.g., books, t-shirts, notebooks, pencil pouches, mugs with program logo). Commencement Ceremony/Ritual. For the completion of RDAP, institutions may offer a structured commencement ceremony for the inmates. Pictures of individual inmates or of the treatment group may be allowed for inmates to send to family. Early Release. Details regarding the early release criteria may be found in the Program Statement Early Release Procedures Under 18 U.S.C. 3621(e). Residential Re-entry Center (RRC) Placement. Consideration may be given for up to the maximum period of placement in an RRC to include home confinement. The RRC placement allows for the completion of the Community TDAT component of RDAP. Program completion in the community is a critical component of the RDAP.

Each Warden is strongly encouraged to approve inmates who successfully complete the RDAP for the RRC placement. Similarly, CCMs must, when possible, ensure that inmates required to participate in TDAT are placed in an RRC for the maximum time recommended by the Warden. On occasion, administrative factors (e.g., bedspace limitations at a RRC) or community safety concerns (e.g., exclusionary criteria) occur that require consideration for RRC placement of less than the recommended maximum days. When this occurs, the goal for both the Warden and CCM is to seek possible placement for the maximum period without negatively impacting bedspace limitations in contract facilities or jeopardizing community safety. Bureau experience and drug abuse treatment research demonstrate that successful community treatment cannot be completed in less than 120 days. Therefore, inmates who are approved for less than a 120-day RRC placement or home confinement cannot ordinarily complete the final component of the RDAP, and are, therefore, ineligible for early release. For inmates who would otherwise be eligible for early release, but who are approved for less than a 120-day RRC placement, the appropriate SENTRY assignment must be changed from ELIGIBLE to iNELIGIBLE. 3. Effects of Non-participation. In those institutions authorized, inmates may feel the effects of non-participation if they fail to apply for the RDAP.

550.53(h) Effects of non-participation.


(1) If inmates refuse to participate in RDAP, withdraw, or are otherwise removed, they are not eligible for:
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(i) A furlough (other than possibly an emergency furlough); (ii) Performance pay above maintenance pay level, bonus pay, or vacation pay; and/or (iii) A Federal Prison Industries work program assignment (unless the Warden makes an exception on the basis of work program labor needs). (2) Refusal, withdrawal, and/or expulsion will be a factor to consider in determining length of community confinement. (3) Where applicable, staff will notify the United States Parole Commission of inmates needs for treatment and any failure to participate in the RDAP.
2.6. Follow-up Treatment

2.6.1. Follow-up to the RDAP: Target Population. This is the second component of the RDAP. Treatment continues for inmates who complete the unit-based component of the RDAP and return to general population. An inmate must remain in Follow-Up Treatment (FOL PART) for 12 months or until he/she is transferred to a RRC. Imnates are to be identified for FOL PART by running DAP COMP rosters. These rosters are to determine if any DAP completers have transferred to the institution without FOL PART. 2.6.2. Follow-up Admission. Inmates enter follow-up treatment within the first month after their return to general population. The treatment protocol is designed so that inmates may enter the monthly group at anytime. Each group will be no less than 60 minutes. If FOL PART is conducted individually, the DTS may start with any of the 12 treatment sessions and complete the entire cycle as described below. 2.6.3. Follow-up Treatment Refuse or Failure. Any RDAP participant who refuses to participate in follow-up treatment is an RDAP failure and is disqualified from receiving additional achievement awards, (e.g. early release). His or her failure may result in the inmates re designation. The primary DTS is responsible for entering the appropriate SENTRY assignment and entering the discharge note into PDS. 2.6.4. Treatment Protocol. Inmates identified for follow-up treatment are provided with a standardized treatment protocol. The protocol is required and is designed to review the treatment components of the RDAP. As treatment technologies change, there are opportunities to improve the Bureaus treatment programs. Therefore, staff are to use the most current journals, facilitator guides, manuals, and resources developed by the Central Office.
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U.S. Department of Justice Federal Bureau of Prisons

CORRECTED COPY 2/20/2009

PROGRAM STATEMENT CPD/PSB OPT P533 1.02 NUMBER 3/16/2009 DATE RULES EFFECTIVE 03/16/2009

Early Release Procedures Under 18 U.S.C. 3621(e)


Is! Approved: Harley G. Lappin Director, Federal Bureau of Prisons

1. PURPOSE AND SCOPE The purpose of this policy is to re-establish criteria and procedures when considering an inmate for early release pursuant to 18 U.S.C. 362 1(e)(2)(B) for successful completion of the Residential Drug Abuse Program. For more information on procedures for treatment programming see Program Statement 5330.11, Psychology Treatment Programs, and the Sallyport site for Correctional Programs Division, Psychology Services Branch, Psychology Treatment Programs. a. Summary of Changes Directives Rescinded Early Release Procedures Under 18 U.S.C. P533 1.01 This reissuance incorporates the following modifications: Prior and current offenses will be reviewed by the legal staff at the Designation and Sentence Computation Center (DSCC). Offense reviews will no longer be conducted in the regional or in the institution legal offices.

3621(e) (9/29/03)

Federal Regulations from 28 CFR are in bold type. Implementing instructions are in regular type.

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The Regional Psychology Treatment Program Coordinator (RPTP-C), formerly known as the Regional Drug Abuse Program Coordinator, will no longer have oversight authority for provisional approval of early releases. histitution staff will no longer be responsible for prior and current offense reviews of early releases. The procedures for monitoring early release have been modified, affecting the Drug Abuse Program (DAP) staff, the Unit Team, Transitional Drug Abuse Treatment (TDAT) staff, Community Corrections staff, and the DSCC. Inmates may receive a period of early release, not to exceed 12 months, based on the length of sentence imposed by the Court. Inmates with a prior conviction of arson or kidnaping are now ineligible for an early release. An inmate sentenced as a D.C. Code offender under 24-403.01 (for an offense committed on or after August 5, 2000) is now eligible for an early release consideration for successful completion of the Residential Drug Abuse Program. b. Program Objectives. The expected results of this program are: To define eligibility criteria for early release pursuant to 18 U.S.C. 3621(e)(2)(B). To ensure all eligible inmates are released appropriately from Bureau of Prisons (Bureau) custody pursuant to 18 U.S.C. 362 l(e)(2)(B). To define the roles of staff in the procedures for early release pursuant to 18 U.S.C. 362 1(e)(2)(B).
2. BACKGROUND

Title 18 U.S.C. 362l(e)(2)(B) allows the Director of the Bureau of Prisons to permit inmates who complete the Residential Drug Abuse Program (RDAP) to receive up to 12 months early release from custody. This Program Statement is to be read in conjunction with the Program Statement Psychology Treatment Programs. 3. DEFINITION OF TERMS. Eligible to meet the criteria for an early release as defined in Bureau policy. Ineligible failure of any RDAP component, or to be unable to meet the criteria for an early release as defined in Bureau policy.

4.

550.55 ELIGIBILITY FOR EARLY RELEASE.


3621(e) Conditional Release

This section lists the criteria that renders an inmate eligible for status.

(a) Eligibility. Inmates may be eligible for early release by a period not to exceed twelve months if they:
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(1) have a diagnosis for a substance use disorder. The inmate must have a substantiated diagnosis for a substance use disorder. (2) 550.55(a)(1) Were sentenced to a term of imprisonment under either: (i) 18 U.S.C. Chapter 227, Subchapter D for a nonviolent offense; or, i.e., an inmate who committed a federal offense on or after November 1, 1987, after the effective date of the Sentencing Reform Act of 1987, also known as new law. Old law inmates who are Parole Eligible, may, at the U.S. Parole Commissions (USPC) discretion, be considered for an advanced release date through an award of Superior Program Achievement (SPA). (ii) DC. Code 24-403.01 for a nonviolent offense, meaning an offense other than those included within the definition of crime of violence in D.C. Code 231331(4); and (Section 24-403.0 1 pertains to inmates whose offenses were committed on or after August 5, 2000); (3) 550.55(a)(2) Successfully complete a RDAP, as described in 550.53, during their current commitment. Successful completion means: (a) completion of the unit-based RDAP in the institution; (b) when applicable, participation in follow-up treatment while in general population for 12 months or until release, whichever comes first; and (c) completion of community Transition Drug Abuse Treatment (TDAT) while residing in a Residential Reentry Center (RRC) or on home confinement; and (4) are Financial Responsibility Program (FRP) compliant. See 28 CFR 545.10.
5.

550.55(b) INMATES NOT ELIGIBLE FOR EARLY RELEASE.

As an exercise of the Directors discretion, the following categories of inmates

are not eligible for early release:


(1) Immigration and Customs Enforcement detainees; (2) Pretrial inmates;

(3) Contractual boarders (for example, State or military inmates); (4) Inmates who have a prior felony or misdemeanor conviction for:
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(i) Homicide (including deaths caused by recklessness, but not including deaths caused by negligence or justifiable homicide); (ii) Forcible rape; (iii) Robbery; (iv) Aggravated assault; (v) Arson; (vi) Kidnaping; or (vii) An offense that by its nature or conduct involves sexual abuse offenses committed upon minors; (5) Inmates who have a current felony conviction for: (i) An offense that has as an element, the actual, attempted, or threatened use of physical force against the person or property of another; (ii) An offense that involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device); (iii) An offense that, by its nature or conduct, presents a serious potential risk of physical force against the person or property of another; or (iv) An offense that, by its nature or conduct, involves sexual abuse offenses committed upon minors; (6) Inmates who have been convicted of an attempt, conspiracy, or other offense which involved an underlying offense listed in paragraph (b)(4) and/or (b)(5) of this section; or (7) Inmates who previously received an early release under 18 U.S.C. 6.

3621(e).

550.55(c) EARLY RELEASE TIME-FRAME.

(I) Inmates so approved may receive early release up to twelve months prior to the expiration of the term of incarceration, except as provided in paragraphs (c)(2) and (3) of this section.

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(2) Under the Directors discretion allowed by 18 U.S.C. 3621(e), we may limit the time4rame of early release based upon the length of sentence imposed by the Court.
This policy enacts the 362 1(e) early release based on an inmates sentence length. This rule will be effective 03/16/2009. Those inmates who are participating in or have completed the Residential Drug Abuse Program (RDAP) before 03/16/2009 are not affected by this rule.
7. PROCEDURE TO DETERMINE

362 1(e) EARLY RELEASE ELIGIBILITY

The DAP staff (initial review) and DSCC legal staff (offense review) play key roles in identifying and documenting an inmates eligibility for early release.
a Drug Abuse Program Staff, Initial Review If the Drug Abuse Program Coordinator

ibility for an early release. The DAPC will also: have the inmate sign the Notice ofRDAP Qualification form (BP-A0941). I forward the Notice ofRDAP QualfIcation form to the Unit Team for placement in the inmates Central File; and enter the appropriate early release eligibility assignment into SENTRY. Note: The DAPC can notify the inmate of his/her early release ineligibility and have the inmate sign the Notice ofRDAP Qualflcation form at the same time. If the inmate is not excluded from eligibility upon the DAPCs initial review, the inmate will require a 362 1(e) offense review by the DSCC legal staff. The DAPC or designee will submit (via GroupWise) a Requestfor 3621(e) Offense Review form in a timely manner. The DAPC or designee will also forward an electronic copy of the Judgment and Commitment Order (J&C) and the Presentence Investigation Report (PSR) if the DSCC does not already have
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one. To determine whether the DSCC has a copy of an inmates J&C file (which includes the PSR), the DAPC or designee will check the sentence computation data function in SENTRY. If the DSC last updated the computation, the DSCC has a copy of the J&C file, and there is no need to send a copy of the same with the Requestfor 3621(e) Offense Review form. However, if an institution last updated the computation, the DSCC does not have a copy of the J&C file. In those cases, the DAPC or designee will send a scanned copy of the J&C file with the Requestfor 3621(e) Offense Review form. The DAPC will place the inmates name and register number in the subject line of the email to DSCC legal staff.
b. Designation and Sentence Computation Center, Offense Review. Upon receipt of the Requestfor 3621(e) Offense Review form and the J&C file, the DSCC legal staff will ordinarily have 30 working days to determine an inmates early release eligibility status based on a review of the inmates current offense and prior convictions. The DSCC legal staff will review current and prior offenses for both U.S. Code and D.C. Code felony offenders.

After completing the offense review, a legal staff member will complete and sign the Requestfor 3621(e) Offense Review form. Signature authority may not be delegated below the attorney level. Designated DSCC legal staff, upon completion of the review, will notify the DAPC of the result of the review by forwarding the signed Requestfor 3621(e) Offense Review form. 8. ASSIGNMENT OF

3621(e) STATUS

Upon receipt of a signed Requestfor 3621(e) Offense Review form from the DSCC legal staff, the DAPC or designee will enter the appropriate early release eligibility code into SENTRY and:
have the inmate sign the Notice ofRDAP Qualfication form; forward the signed Notice of RDAP Qualification form to the unit team; and enter into SENTRY the appropriate 3621(e) early release eligibility assignment. If the inmate declines the RDAP after hearing of his or her early release eligibility status, enter into SENTRY the appropriate 3621(e) assignment signifying the inmates declination.

9. ASSIGNMENT OF

3621(e) EARLY RELEASE

CONDITIONAL DATE

a. Drug Abuse Program Coordinator. Upon a qualified inmates entry into the RDAP, the DAPC, or designee, will: enter into SENTRY the appropriate participation assignment; and within 15 working days, forward a Notice of 3621(e) Date form (BP-A0764) to the DSCC team responsible for the inmates sentence computation requesting computation of a 3621(e) conditional release method date, with a copy to the unit team and the Correctional Systems Department (CSD).

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b. DSCC Staff. Within 15 working days of the DSCC staff receiving the Notice of 3621(e) Date form, computation staff will enter the estimated completion date into the 362 1(e) CRPS MN field (Complete Residential Program), and recalculate the sentence. The corresponding satisfactionlrelease method will be 3621(e) COND ( 3621 E Conditional).

10. LENGTH OF SENTENCE Following completion of Transitional Drug Abuse Treatment (TDAT), inmates found to be eligible for an early release under 18 U.S .C. 3621(e) may receive that early release based upon the length of their sentence, as detailed in the table below.
Sentence Length Early Release Time-Frame

30 MONTHS or LESS 3 1-36 MONTHS 37 MONTHS OR MORE

No more than 6 months No more than 9 months No more than 12 months

The early release time-frame reductions shown on the table are not pro-rated by days. For example, if an inmates sentence is 36 months and any number of days, 9 months is the maximum sentence reduction allowed, whether the inmates sentence is 36 months and 0 days, or 36 months and 30 days. Any change in current offense sentence length as imposed by order of the Court will result in a recalculation of sentence computation and provisional incentive. For example, a 36-month sentence reduced to a 24-month sentence will result in no more than a 6-month early release. 11. MONITORING OF EARLY RELEASE ELIGIBILITY STATUS An inmate may require changes to, or lose, his or her early release eligibility at any time as a result of: information that renders the inmate ineligible, see section 5; or identification of a previous error.

Chapter 2 of the Program Statement Psychology Treatment Programs contains specific information on the circumstances that may lead to expulsion and loss of early release. DAP staff, designated DSCC staff, Unit Team staff, TDAT staff, and Community Corrections staff play key roles in identifying, monitoring and documenting an inmates eligibility for early release. This process involves the steps described below.

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a. The DAPC. The DAPC, or designee, in all Bureau institutions will review all eligible inmate DRG assignments hi-monthly and prior to the inmate receiving a DAP COMP or FOL COMP SENTRY assignment.

(1) Completion of the Unit-Based RDAP Component. If the inmate completes the unit-based component (see Psychology Treatment Programs) of the RDAP, the local DAPC, or designee, will: replace the SENTRY participation assignment to completion assignment; and I add a SENTRY assignment for follow-up treatment indicating the inmate is enrolled in institutional transitional aftercare. (2) Additional Completion Time in RDAP. If an eligible inmate is determined, for clinical reasons (e.g., difficulty meeting treatment goals) or administrative reasons (e.g., writ, medical, institutional need), to require additional time to complete the RDAP, the DAPC, or designee, will immediately forward the Notice of 3621(e) Date form to the CSD, Unit Team, and the DSCC.
(3) Change in Early Release Status, Ineligible to Eligible. If the DAPC is notified by the Unit Team of a change in circumstance of an ineligible inmate (e.g., detainer dropped, court case resolved, etc.), the DAPC, or designee, will:

review the inmates case to determine if there are any other exclusionary criteria that would maintain the inmates ineligibility for early release; immediately replace the SENTRY DRG assignment of INELIGIBLE to ELIGIBLE, if no other exclusionary criteria exist; and forward a Notice of/3 621 (e) Date form to the CSD, the Unit Team, and the DSCC requesting appropriate change to the 3621(e) conditional release method date. (4) RDAP Expel/Fail/Withdraw. If an early release eligible inmate is expelled or withdraws from the RDAP (e.g., significant failure to meet treatment goals, significant program disruption, receives an incident report for misconduct related to drugs, alcohol, and/or act(s) of violence), the DAPC or designee will: complete Section III of the Change in RDAP and 3621(e) Status form (BP-A0767); notify the inmate and send the Change in RDAP and 3621(e) Status form electronically to the CSD, the Unit Team and the DSCC team responsible for the inmates sentence computation; replace the SENTRY assignment of participation with program failure for expulsion or failure, as appropriate; and when appropriate, replace the SENTRY assignments from 3621(e) eligible to ineligible. If an early release eligible inmate is expelled from the program based on an incident report for misconduct related to drugs, alcohol and/or act(s) of violence and is laterfound not guilty by the DHO, the DAPC will conduct a meeting with all treatment staff to determine if the inmate, based
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on sound clinical practice and the good of the treatment community, is clinically appropriate to be placed back into the program, and if so: reinstate the inmate into the program; a replace the SENTRY assignment of failure due to expulsion with that of participation; replace the SENTRY assignment noting ineligible to eligible; complete and forward the Notice of 3621(e) Date form to the CSD, the Unit Team, and the DSCC team responsible for the inmates sentence computation requesting any appropriate change to the 3621(e) conditional release method date; and notify the inmate.
(5) Follow-Up Treatment Complete. If an eligible inmate completes the required institutional follow-up component of RDAP, upon return to general population, the DAPC, or designee, will:

replace the SENTRY DRG assignment of follow-up participation with follow-up completion; and review the inmates PDS notes and review SENTRY to ensure the inmate is still eligible for the early release benefit.
a

(6) Failure/Withdrawal of Follow-Up Treatment. If an eligible inmate fails or withdraws from the follow-up component of RDAP, the DAPC, or designee, will: complete Section III of the Change in RDAP and 3621(e) Status form; send this form electronically to the Unit Team, the CSD, and the DSCC team responsible for the inmates sentence computation; replace the SENTRY assignment for follow-up participation to the appropriate follow-up fail assignment; a replace the SENTRY assignment of DAP completion to DAP failure, final outcome; and a replace the SENTRY assignment of eligible to ineligible for a 3621(e) release. (7) Completion of All RDAP Components in the Institution. If an eligible inmate has completed all institution components of RDAP (i.e., the unit-based program and the follow-up treatment program) and is later determined to require a change in his or her early release status (e.g., detainer removed or lodged, found guilty by the DHO for misconduct, especially as related to drugs, alcohol, andlor act(s) of violence), the Unit Team will notify the DAPC, via e-mail, of the inmates change in status and the DAPC will then complete the Change in RDAP and 3621 (e) Status form.

The DAPC (or designee) will review the inmates case to determine if the inmate is or is not eligible for an early release. The DAPC will document the outcome of this review and sign and forward the Change in RDAP and 3621(e) Status form to the CSD, and the DSCC team responsible for the inmates sentence computation.

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(8) Changes in Inmate Early Release Status. Any and all changes in an inmates early release status will be documented in the Psychology Data System (PDS). If an inmate is removed from the program, the circumstances for removal (e.g., expulsion, incomplete, withdrawal) are to be documented as a Discharge Note in PDS. (9) Unit Team Final 3621(e) Review. Before a 3621(e) eligible inmate is processed for transfer to an RRC, the Unit Team will complete the Unit Team Final Review form (BP-A0766). Ordinarily, this will occur 30 days before the inmates RRC transfer. This form ensures that all criteria for early release have been met. In conjunction with this review the DAPC, or designee, is to review SENTRY to determine if:

the inmate has completed all components of the unit-based RDAP, in a unit set apart from the general population for no less than nine months; and the inmate has completed the follow-up component of the RDAP. b. The Unit Team. Typically, the Unit Teams review of the inmates status will be in conjunction with regularly scheduled program reviews, preparation of release paperwork, and RRC referrals. (1) Change in Early Release Eligibility Status/DAP WAIT or DAP PART. If an eligible inmates early release eligibility status requires change (e.g., detainers removed/added, noncompliance with FRP), the Unit Team will immediately notify the DAPC via e-mail. (2) Change in Early Release Eligibility Status/RDAP Complete. If an eligible inmate has completed all institution components of RDAP (i.e., the unit-based program and the follow-up treatment program) and is later determined to require a change in his/her early release status (e.g., detainers removed/added, found guilty by the DHO for misconduct related to drugs, alcohol, and/or act(s) of violence, noncompliance with FRP), the Unit Team will immediately notify the DAPC via e-mail. The DAPC will:

complete the Change in RDAP and 3621(e) Status form; provide a copy of the Change in RDAP and 3621(e) Status form to the inmate; and forward the Change in RDAP and 3621(e) Status form to the Unit Team, the CSD, and the DSCC team responsible for the inmates sentence computation.

(3) 362 1(e) Conditional Release. The Unit Team will use the Notice of 3621(e) Date form in preparing the RRC packet for the Wardens approval. Upon approval, the RRC packet will be forwarded to Community Corrections. (4) Unit Team Final Review. Before an eligible inmate is processed for early release to an RRC, the Unit Manager or designee will complete the Unit Team Final Review form. Ordinarily, this will occur 30 days before RRC transfer or release. This review ensures that all criteria for early release have been met. If any SENTRY codes have been replaced with fail or ineligible codes, the inmate is not eligible for an early release.
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(5) RRC Incident Report. If a previously eligible inmate was returned from RRC placement due to an incident report and that incident report is later expunged by the Discipline Hearing Officer, the Unit Team will:

notify the DAPC immediately and request the SENTRY failure assignment be replaced with the completion assignment, and the SENTRY appropriate early release eligibility assignment is entered; and I complete the Notification ofRRC Placement Date form (BP-A0628) and send it to the CSD and the appropriate DSCC computation staff. c. DSCC Computation Staff. Ordinarily, the DSCCs role is to ensure the Sentence Monitoring and Computation data for an inmate is appropriate and current at all times. (1) Changes in Conditional Release Date. Any changes required in the computation of a 362 1(e) Conditional Release date will be made by DSCC upon receipt of one of the following Forms:
I

the Notice of 3621(e) Date form; the Change in RDAP andy 3621(e) Status form; or the Notification ofRRC Placement Date form.

The DSCC staff will make the appropriate computation changes within 15 working days. (2) RRC Placement Date. When the inmate has been accepted for RRC placement, the NotifIcation ofRR C Placement Date form will be sent to the appropriate DSCC computation staff and the CSD by the Warden. Upon receipt of this form, the designated DSCC staff will enter the 3621 E CCPS (complete community program) date into the inmates sentence computation within 15 working days. DSCC staff will recalculate the sentence to show a release date via RDAP early release pursuant to 3621(e).
(3) Request to Delay, Remove or Reinstate Early Release. When notified by the Transitional Drug Abuse Treatment Coordinator (T-DATC) via the Request to Delay, Remove or Reinstate Early Release form (BP-A0768), the DSCC will recalculate the sentence computation within 15 working days of receipt of the form. The DSCC will enter a I in the 3621E CCPS (complete community program) date field, SENTRY will set the 3621E REL date to I, and the inmates projected satisfactionlrelease date will be set to his/her projected Statutory Release Date (SRD), and the corresponding satisfactionlrelease method GCT REL.

d. TDAT and Community Corrections Staff. 550.55(c)(3) If inmates cannot fulfill their community-based treatment obligations by the presumptive release date, we may adjust provisional release dates by the least amount of time necessary to allow inmates to fulfill their treatment obligations. In practice, it is the T-DATC who adjusts all provisional release dates.
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(1) Transitional Drug Abuse Treatment Coordinator. When an inmate is placed in community-based treatment, the T-DATC monitors the inmates treatment. Therefore, all recommendations for changes in an inmates early release date must be initiated by the T-DATC. This includes delays or removal of early release for treatment related issues, escapes from the RRC, RRC failures, disallowance of Good Conduct Time by the Discipline Hearing Officer, etc. For example, if an inmate fails the RRC, the CCM will contact the T-DATC via GroupWise to request a change in the inmates status.

Additional guidance on delaying and/or removing early release is contained in the Program Statement on Community Transitional Drug Abuse Treatment. (2) T-DATC Review. The T-DATC is responsible for reviewing all requests to delay or remove an inmates early release date. Supporting documentation should be included in the review. The T-DATC will approve or disapprove the request. (3) Request to Delay, Remove or Reinstate Early Release. If the T-DATC decides to delay or remove early release, he or she will complete the Request to Delay, Remove or Reinstate Early Release form, scan the document, and submit it to the appropriate team at the DSCC. If the staff at the DSCC have not calculated/assumed the related sentence computation, they will need to contact the parent facility for an electronic version of the Judgment and Commitment file to carry out the change in the release date. (4) SENTRY Assignments. All SENTRY assignments should be updated by the TDAT and/or community corrections staff as such changes occur. At no time should an inmate have a failure SENTRY assignment while maintaining an early release date. This is to be monitored closely by the TDAT, community corrections, and the DSCC.
(5) Reinstatement of 3621(e) Date. If an inmate has received an incident report that is later expunged by the DHO, the appropriate staff, T-DATC or DAPC, depending on the inmates location, will complete the Change in RDAF and 3621(e) Status form or the Request to Delay, Remove or Reinstate Early Release form and immediately scan the form and send it to the DSCC to reinstate the inmates early release. Once the inmate begins TDAT, the T-DATC will decide if the inmates provisional early release date will be delayed. Delays of an early release date will allow the inmate to complete TDAT.

(6) Redesignation. If it is determined that the inmate must be redesignated, the CCM will review the case and submit a redesignation request to the DSCC. 12. CERTIFYING EARLY RELEASE Upon an inmates completion of TDAT, the T-DATC must certify to the DSCC that the inmate has completed all requirements of RDAP. This certification assures the inmate has successfully completed all of the requirements that earn him or her an early release. The T-DATC will complete the Transitional Drug Abuse Treatment 3 621(e) Release Date Confirmation form
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(BP-A0910), scan the document, and submit it to the appropriate team at the DSCC. (See Program Statement on Community Transitional Drug Abuse Treatment for steps to certifying early release.) REFERENCES Program Statements Definition of Term Crimes of Violence (7/24/95) P5 162.02 Categorization of Offenses (10/9/97) P5 162.04 Inmate Discipline and Special Housing Units (1/09/03) P5270.07 Psychology Services Manual (3/7/95) P53 10.12 Psychology Treatment Programs (3/16/09) P5330.11 Correctional Systems Manual (1/1/09) P5800.15 Community Transitional Drug Abuse Treatment (4/14/99) P7430.02
-

ACA Standards th Edition: 4-444 1 Standards for Adult Correctional Institutions, 4 Performance Based Standards for Adult Local Detention Facilities, 4 Edition: 4-ALDF-SA08 Other Standards American Psychological Association Ethical Principles of Psychologists and Code of Conduct, 3-21-02. Forms All forms may be found on Sallyport. Notice ofRDAP Qualification (BP-A0941) Requestfor 3621(e) Offense Review (BP-A0942) Notice of 3621(e) Date (BP-A0764) Change in RDAP and 3621(e) Status (BP-A0767) Unit Team Final Review (BP-A0766) Notification ofRRC Placement Date (BP-A0628) Request to Delay, Remove or Reinstate Early Release (BP-A0768) Transitional Drug Abuse Treatment 3621(e) Release Date Confirmation (BP-A0910) Records Retention Requirements and retention guidance for records and information applicable to this program are available in the Records and Information Disposition Schedule (RIDS) on Sallyport and BOPDOCS.

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W&ttw.
Page 1 Slip Copy, 2009 WL 936663 (D.Or.) (Cite as: 2009 WL 936663 (thOr.)) eligible prisoner (an inmate eligible for the discre tionary sentence reduction for up to one year for completing RDAP) should be ranked on the wait list according to his or her projected 3621(e) re lease date. Previously, counsel for the government have opposed this view, suggesting that the BOPs stand ard practice has been to rank prisoners on the wait list according to their anticipated release date and that this date should not incorporate a projected re duction based on successful RDAP completion. This court conducted a status conference on November 1, 2007, that explored the meaning of the phrase proximity to release used in the relev ant statute and attempted to determine what the BOPs practice has been regarding to wait-list rank ings. Following this status conference, the court is sued a written Order. This Order was summarized in an electronic posting that stated as follows: [tjhe BOP shall produce records of all DAP wait list ranking calculations from January 1, 2000 to the present. Discovery must be produced by December 10, 2007. Any formal motion for ex tension of this discovery time must be filed no later than December 3, 2007. Status reports must be filed no later than December 17, 2007. See Or der. Signed on 11/2/07 by Judge Ancer L. Hag gerty. The underlying written Order provided some detail regarding the discovery that was due on December 10, 2007, but this detail was derived solely from the discussions with counsel that oc curred at the status conference less than twentyfour hours previously. In fact, the discovery refer enced in the electronic posting was scheduled pur suant to the government counsels express sugges tions made at the conference. The written Order merely underscored what counsel understood after participating in the conference-that counsel for the government had:

Only the Westlaw citation is currently available. United States District Court, D. Oregon. Michael THURMAN, Petitioner,
V.

J.E. THOMAS, Warden, Federal Correctional Insti tution, Sheridan, Oregon, Respondent. Civil No. 06-1400-HA. March 30, 2009. Stephen R. Sady, Office of the Federal Public De fender, Portland, oR, for Petitioner. Katherine C. Lorenz, U.S. Attorneys Office, Dis trict of Oregon, Portland, OR, for Respondent.

ORDER FIAGGERTY, District Judge: *1 This action is designated as Lead Case for a series of consolidated prisoner actions that involve a common issue regarding how prisoners are ranked by the Bureau of Prisons (BOP) on eligibility wait lists for its Residential Drug Abuse Program (RDAP). That consolidation arose in response to this courts request that counsel brief the legal and statutory authority for structuring the waiting list based on eligibility for certain statutory sentence reductions. Section 362 1(b) of the United States Code directs the BOP to provide substance abuse treatment to prisoners who have a treatable condi tion of substance addiction or abuse. 18 U.S.C. 3621(b). Relatedly, Congress made one-year sen tence reductions available to certain prisoners who completed the substance abuse treatment programs. 18 U.S.C. 3621(e)(2)(B). The reduction provided by 362 1(e) is recognized as a tangible, significant incentive to prisoners to complete a drug abuse pro gram. (Thrt v. (Jrahtree, 113 F.3d 1081, 1085 (9th Cir. 1997). Petitioners have maintained that a

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Page 2 Slip Copy, 2009 WL 936663 (D.Or.) (Cite as: 2009 WL 936663 (D.Or.)) expressed a belief that BOP has never included a prospective DAP sentence reduction in release date calculations, but he suggested that discovery could be undertaken to clarify the BOPs standard practices. documents; 2. Exhibit 2: Wait list generated by inmate name from January 1, 2000 through November 24, 2007, as provided by BOP Central Office; and 3. Exhibit 3: Declaration of Theresa Talplacido, BOP Regional Counsel. *2 Accordingly, as suggested by the govern ment counsel, the parties are ordered to undertake sufficient discovery efforts to ascertain whether the BOPs standard practice at Sheridan has been to incorporate, or exclude, the potential sentence reduction that may be available for completing DAP when calculating release dates for purposes of the wait list rankings. November 2, 2007 Order at 2-3. Government counsels suggestion that the gov ernments subsequent failure to produce meaningful discovery can be attributed to being deprived of im mediate access to the written Order strains credu lity. Although it is true that counsel for both parties lacked immediate access to the written Order due to a computer error, the electronic posting advised counsel that records of all wait list calculations from January 1, 2000 to present and discovery (plainly referring to the discovery the government counsel had suggested less than twenty-four hours previously) must be produced by December 10, 2007, and that Status Reports were due by Decem ber 17, 2007. There is no question that the government diges ted the electronic posting and attempted to comply with it. On December 14, 2007, counsel submitted a status report that merely described attachments that were included with it: Attached are the following wait lists for entry in to the RDAP program at FCI Sheridan: 1. Exhibit 1: Non-Inclusive wait lists from April, 2005 through November, 2007, as provided by Dr. Eric Evenson at FCI Sheridan. Effective dates of each list is noted on top left of the individual Respt. Status Report filed December 14, 2007 at 2. The Report noted that the filing was pursuant to the courts November 2, 2007 Order. Id. Counsel for petitioners subsequently obtained extensions, conferred with government counsel, and sought additional discovery. Counsel for petitioners were advised that the BOP had no other docu ments regarding the wait list or the order in which prisoners entered the program. Aff. of Lynn Deffe bach, Ex. C to Pet. Opp. Mot. Recons. The court also notes that the electronic posting that served as a reminder for the discovery pro posed by the government and set the discoverys deadline also expressly instructed counsel to see Order. If, as counsel now contends, there was un certainty as to the scope of the discovery counsel had proposed previously, a simple inquiry to the court would have triggered access to the written Or der. Any doubt that government counsel understood the scope and import of the discovery that counsel had proposed and produced previously evaporated completely on March 28, 2008. On that date peti tioners filed a Memorandum that explicitly asserted that the records the government produced are in complete and non-responsive to the Courts order. Mem. Relating to Discovery at 1. This eight-page Memorandum alerted the court and governments counsel that the produced discovery was not re sponsive to the courts electronic posting regarding the November 1, 2007 Status Conference: *3 because most of it is incomprehensible and lacks essential information necessary to determ ine rankings of prisoners entry into the program.

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Page 3 Slip Copy, 2009 WL 936663 (D.Or.) (Cite as: 2009 WL 936663 (D.Or.)) Exhibit 1 is merely a set of computer generated lists of prisoners on the wait list sorted according to projected release date. The rosters do not re flect prisoners actual ranking on the wait list be cause they lack critical information such as the prisoners eligibility for the sentence reduction, and whether and when prisoners entered the DAP program. Pet. Mem. Relating to Discovery at 4. The Memorandum concluded that the relevant statutory provision directs that entry into DAP should be based on proximity to release, which plainly includes eligibility for a sentence reduction under 3621(e) as well as eligibility for good time under 3624(b). Id at 7. There is no question that government counsel received this Memorandum shortly after its filing. There is also no question that the government filed nothing in opposition to it. On September 25, 2008, this court issued an Order noting that the government offered no com ment or rebuttal to petitioners analysis of the dis covery and their subsequent argument. Accord ingly, the court viewed petitioners position as un opposed and directed counsel for petitioners to file Proposed Orders and Judgments reflecting fair, good faith resolutions to the petitions pending in Civil No. Thomas, Thurman v.. 06-1400-HA-LEAD, and each of the petitions con solidated therein. The government responded promptly to this ruling, seeking reconsideration on grounds that the lack of access to the written November 2, 2007 Or der deprived the government of a meaningful op portunity to address the courts specific direct ives Respt. Reply at 1. Reconsideration was granted in part. See Order of October 2, 2008. Petitioners were permitted to brief objections to the governments argument that additional evidence and argument should be permitted because the relevant [written] Order was never served on Respondent. Respt. Mem. Supp. Recons. at 2. The court has fully considered the parties posi tions regarding the governments request for leave to file additional evidence and argument. For the following reasons, that request is denied. The grounds advanced to rationalize additional discovery-that the parties were denied access to the courts written Order of November 2, 2007-are spe cious. As established above, the missing written Or der merely memorialized the fact that the govern ment counsel had suggested that the government produce specific discovery. The directives in the Order referenced by counsel were nothing more than descriptions of the kind of discovery counsel had proposed producing one day before the Order was issued. Regardless of the written Orders imme diate accessibility, the government was provided generous opportunities to obtain and produce the discovery it believed would support its position. The government, in fact, attempted to do so. *4 Moreover, the government has already ad vised petitioners that no other responsive discovery exists. After extensive, good faith conferring by counsel, and additional production from a BOP of ficial, petitioners were advised that the BOP pos sessed no other documents regarding the wait list or the order in which prisoners entered the pro gram. Aff. of Lynn Deffebach, Ex. C to Pet. Opp. Mot. Recons. Regardless of the written Orders im mediate accessibility, the government was asked for more responsive discovery and represented that there is none. One aspect of the governments request for re consideration is meritorious. Because of the gov ernments failure to respond to petitioners March 28, 2008 Memorandum, the court initially con strued petitioners position as unopposed. As the re reestablished, quest for reconsideration has however, the government maintains its objections. Accordingly, the conclusion that the government no

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Page 4 Slip Copy, 2009 WL 936663 (D.Or.) (Cite as: 2009 WL 936663 (D.Or.)) longer opposes the petitions is vacated, and this court has undertaken an analysis of the parties re spective positions and the discovery produced in support of those positions. After carefhl consideration of the record in this matter, the court has determined that the most reas onable conclusion that can be drawn from the discovery produced is that the BOP likely underwent changes in how it ranked prisoners waiting for entry into the RDAP sometime in early March, 2006. No persuasive evidence was produced that in dicated whether prisoners had been ranked accord ing to projected release dates, or by some other cri teria. However, there was some evidence suggest ing that ranking methods changed after March 2006. In addition to the resulting inferences that the BOP has been inconsistent regarding the manner that prisoners were admitted into and commenced the RDAP, proper statutory construction compels the conclusion that the BOP is required to perform wait list calculations that include the prisoners pro jected 3621(e) release date. Failing to do so cur rently results in a significant diminution or the out right elimination of the statutorily created incentive of sentence reductions for prisoners who seek and complete RDAP. Accordingly, after evaluating the record and merits of the parties arguments, this court con cludes that inmates eligible for the discretionary sentence reduction for up to one year for complet ing RDAP should be ranked on the wait list accord ing to their projected 3621(e) release dates. Coun sel for petitioners shall file Proposed Orders and Judgments reflecting good faith resolutions to the petitions pending in Thurman v. Thomas, Civil No. 06-1400-HA-LEAD, and each of the petitions con solidated therein. These proposed rulings shall be filed within thirty days of this Order. Any objec tions to any proposal must be filed by the govern ment no later than ten days after that proposal is filed. Any other pending motions in these consolid ated cases are denied as moot. IT IS SO ORDERED.

D.Or.,2009. Thurman v. Thomas Slip Copy, 2009 WL 936663 (D.Or.) END OF DOCUMENT

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