IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

UNITED STATES OF AMERICA, 

Plaintiff, 

v. 

CHRISTOPHER R. McLEAN, 

Defendant. 

CR NO. 03-30066-AA 

OPINION AND ORDER 

A1 KEN, Judge : 

Defendant moves to enforce the judgment imposing sentence in 

this case, or alternatively, to vacate his sentence under 28 U.S.C. 

§ 2255, as a result of the Bureau of Prison's decision to terminate 

the Shock Incarceration Program. The government opposes the 

motion, arguing that the Bureau of Prisons has complied with the 

judgment, that defendant waived his right to collaterally attack 

his sentence, and that defendant asserts no grounds for relief 

under § 2255. Defendant's motion is granted and his sentence 

vacated. 

1 - OPINION AND ORDER 
BACKGROUND 

Under the Crime Control Act of 1990, Congress authorized the 

Bureau of Prisons (BOP) to create a federal boot camp program, 

known as the Shock Incarceration Program or Intensive Confinement 

Center program (the Program) . Pub. L. No. 101-647, 1990 § 3001, 

104 Stat. 4789, codified at 18 U.S.C. § 4046. Congress also 

authorized funding for the Program "for fiscal year 1990 and each 

fiscal year thereafter . . . as may be necessary to carry out the 

shock incarceration program established under the amendments made 

by this Act." Id. § 3002; 104 Stat. 4917. However, Congress has 

never appropriated funds specifically for the Program; instead, the 

BOP has funded the Program from lump-sum congressional 

appropriations such as those designated "for expenses necessary for 

the administration, operation, and maintenance of Federal penal and 

correctional institutions." Consolidated Appropriations Act of 

2004, Pub. L. 108-199, 2004 HR 2673. 

Generally, the Program consists of three phases: six months 

in a military-style correctional institution, six months in 

community corrections confinement, and a subsequent period of home 

confinement. 28 C.F.R. § 524.32. After successful completion of 

all three phases, a prisoner may be released from BOP custody up to 

six months prior to the expiration of the applicable term of 

imprisonment. Id. BOP regulations establish certain requirements 

prisoners must meet to be "eligib[le] for consideration" and 

2 - OPINION AND ORDER 
provide that placement in the Program "is to be made by Bureau 

staff in accordance with sound correctional judgment and the 

availability of Bureau resources. Id. § 524.31 (a) , (b) . 

On June 16, 2004, defendant pled guilty to one count of 

distributing over 100 pounds of marijuana in violation of 21 U. S .C. 

§ 841(a). Defendant's convictions arose from his involvement in a 

conspiracy to import marijuana from Canada and distribute it 

throughout the United States. 

On December 16, 2004, the court sentenced defendant to thirty 

months imprisonment and recommended commitment "to [Intensive 

Confinement Center] , Lompoc, CA or Sheridan, OR if the defendant is 

otherwise qualified as determined by the policies of the Bureau of 

Prisons." Judgment, p. 2. The court imposed sentence in reliance 

on the fact that a Shock Incarceration Program at an Intensive 

Confinement Center was an available option. Defendant was allowed 

to self-surrender at a later date. 

On January 14, 2005, BOP Director Harley Lappin issued a 

memorandum to all federal judges, chief probation officers, public 

defenders, and United States attorneys in which the BOP advised 

that it was terminating the Program, "effective immediately." 

Apparently, the BOP decided to phase out the Program as a result of 

a budget shortfall in fiscal 2004 and studies that led the BOP to 

conclude that the Program did not reduce recidivism. Lappin stated 

that inmates currently enrolled in the Program would be allowed to 

3 - OPINION AND ORDER 
complete it, but no new classes would be offered. At the time of 

the Program's termination, defendant had not yet self-surrendered 

and was not enrolled in the Program. 

On April 22, 2005, defendant filed a civil petition for writ 

of mandamus seeking an order that requires the BOP to rescind the 

termination of the Program and consider defendant's eligibility for 

participation in the Program. The case was assigned to Judge Hogan 

and subsequently transferred to the undersigned judge.' 

On April 25, 2005, defendant filed the instant motion to 

enforce judgment, or in the alternative to correct, modify or 

vacate his sentence under 28 U.S.C. § 2255 based on the BOP'S 

termination of the Program. 

The cases were stayed pending Judge Brown's ruling in United 

States v. Serrato, Civ. No. 05-696-BR, and on August 8, 2005, the 

court heard argument on defendant's motion under § 2255 and the 

petition for writ of mandamus. 

DISCUSSION 

Defendant moves to enforce the judgment imposed by requiring 

the BOP to rescind its termination of the Program and ordering BOP 

to consider his eligibility for the Program. However, the judgment 

imposes a sentence of 30 months and recommends commitment at either 

'The government moved to dismiss the petition, and that 

motion is addressed in a separate Order filed in Civ No. 05-560- 

AA . 

4 - OPINION AND ORDER 
the ICC at Lompoc, California or Sheridan, Oregon. Given that the 

court can only recommend placement, there is nothing for this court 

to enforce. 

Alternatively, defendant requests that the court grant him 

habeas relief and vacate his sentence. Under 28 U.S.C. S 2255, a 

defendant may challenge his conviction on grounds that "the 

sentence was imposed in violation in violation of the Constitution 

or laws of the United States, or that the court was without 

jurisdiction to impose such sentence, or that the sentence was in 

excess of that maximum authorized by law . . . ." 

Here, defendant argues that the BOP'S termination of the 

Program : 1) violates Article I, § 7, of the United States 

Constitution; 2) exceeds its statutory authority; 3) constitutes a 

substantive rule change subject to notice and comment under the 

Administrative Procedures Act (APA) ; 4 ) is arbitrary and capricious 

under the APA; 5) violates the Ex Post Facto Clause of the United 

States Constitution; and 6) renders his sentence unconstitutional 

under the Due Process Clause. 

The government first argues that defendant waived the right to 

collaterally attack his sentence except for claims of ineffective 

assistance of counsel, newly discovered evidence, or a retroactive 

change in the applicable statute or guidelines. However, the fact 

that the Program was not an available option at the time of 

sentencing is "newly discovered e~idence,~~ and I do not find that 

5 - OPINION AND ORDER 
the waiver bars review of defendant's motion. 

However, defendant's arguments under Art. 1, § 7, the APA, and 

the Ex Post Facto Clause do not contest the fact, length, or 

legality of his sentence but only the manner in which it is 

executed, i.e., the refusal to place defendant in a Shock 

Incarceration Program. "Generally, motions to contest the legality 

of a sentence must be filed under § 2255 in the sentencing court, 

while petitions that challenge the manner, location, or conditions 

of a sentence's execution must be brought pursuant to § 2241 in the 

custodial court." Hernandez v. Campbell, 204 F.3d 861, 864 (9th 

Cir. 2000) (citations omitted) . Regardless, I do not find that the 

BOP's termination of the Program violates the Constitution or the 

APA . 

Defendant argues that the BOP's termination of the Program 

effectively renders 18 U.S.C. § 4046 a nullity, thereby repealing 

it without congressional authorization in violation of Art. 1, § 7 

of the United States Constitution. I disagree. 

Section 4046 (a) provides that the BOP "may place in a shock 

incarceration program any person who is sentenced to a term of 

imprisonment of more than 12, but not more than 30, months, if such 

person consents to that placement." 18 U.S.C. § 4046(a). Thus, 

the statute explicitly authorizes the BOP to place eligible 

prisoners in the Program but does not require that it do so. See 

Jama v. Immiqration & Customs Enforcement, 125 S. Ct. 694, 703 

6 - OPINION AND ORDER 
(2005) ("The word 'may1 customarily connotes discretion. " ) . In 

contrast, other statutory provisions authorizing BOP program use 

mandatory rather than permissive language. See, e.q., 18 U.S.C. 

§ 3621 (e) (1) ("the Bureau of Prisons shall, subject to the 

availability of appropriations, provide residents substance abuse 

treatment") ; see also Lopez v. Davis, 531 U.S. 230, 241 (2001) 

(contrasting use of the words "may" and "shallu in same statutory 

section governing BOP actions). 

Additionally, Congress has not specifically allocated funding 

for the Program. In Lincoln v. Viqil, 508 U.S. 182 (1993), the 

Supreme Court considered the federal Indian Health Service's 

termination of a program for Indian children in order "to 

reallocate the Program's resources." Id. at 184. Relying on the 

fact that "Congress never expressly appropriated fundsH for the 

Indian Health Service program, the Court explained, "The allocation 

of funds from a lump-sum appropriation is another administrative 

decision traditionally regarded as committed to agency discretion." 

Id. at 186, 192. The Court thus concluded that it could not 

intrude on the agency1 s budgetary discretion "as long as the agency 

allocates funds from a lump-sum appropriation to meet permissible 

statutory objectives. " Id. at 193. 

Given that the statutory language is permissive rather than 

mandatory, and Congress has not specifically allocated funding for 

operation of the Program, I do not find that the BOP'S termination 

7 - OPINION AND ORDER 
of the Program effectuated a repeal of the statute or otherwise 

exceeded its statutory authority. 

Next, defendant argues that the BOP'S termination of the 

Program violates the APA, because it did not follow the notice and 

comment requirements of rule-making. Under the APA, rules 

promulgated by administrative agencies must follow certain 

procedures unless they are "interpretive rules, general statements 

of policy, or rules of agency organization, procedure, or 

practice. " 5 U. S. C. § 553 (b) (3) (A) . The procedural requirements 

for all non-exempt rules include public notice, the opportunity for 

public comment, and publication in the Federal Register. L § 

553 (b) , (c) . 

In Lincoln, the Supreme Court held that the BIA1s termination 

of a children's program was exempt from APA notice-and-comment 

requirements, either as a rule of agency organization or as a 

general statement of policy. 508 U.S. at 197 (citing 5 U.S.C. § 

553 (b) (3) (A) ) . "Whatever else may be considered a 'general 

statemen [tl of policy, ' the term surely includes an announcement 

like the one before us, that an agency will discontinue a 

discretionary allocation of unrestricted funds from a lump-sum 

appropriation." Id. The court reasoned that "decisions to expend 

otherwise unrestricted funds are not, without more, subject to the 

notice-and-comment requirements of § 553." Id. at 198 (citing 

Citizens to Preserve Overton Park, Inc. v. Vol~e, 401 U.S. 402 

8 - OPINION AND ORDER 
(1971) ) . 

Here, the BOP has not issued new rules or regulations 

restricting participation in the Program or altering requirements 

for eligibility. Lincoln, 508 U.S. at 198-99. Rather, the BOP has 

issued a general statement of policy that it will no longer fund 

the Program and will reallocate those resources. Finally, contrary 

to the finding in Castellini v. Lappin, 365 F. Supp. 2d 197, 203 

(D. Mass. 2005), the BOP did not establish and operate the Program 

pursuant to regulation. Rather, the Program existed for several 

years without implementing regulations. Therefore, I do not find 

that the BOP'S termination of the Program is subject to notice and 

comment under the APA. 

Defendant also argues that the termination of the Program is 

impermissibly retroactive if applied to him. However, defendant 

was not - even provisionally - accepted into the Program. See 

Bowen v. Hood, 202 F.3d 1211, 1218 (9th Cir. 2000) (holding that a 

group of prisoners "cannot make the retroactive claim because its 

members had not received any form of acceptance into a substance 

abuse treatment program at the time the Bureau's interpretation was 

adopted") . 

Similarly, defendant argues that termination of the Program 

violates the Ex Post Facto Clause by increasing the punishment that 

he would have otherwise received under the Program. See California 

Dep't of Corr. v. Morales, 514 U.S. 499, 504 (1995) (the Ex Post 

9 - OPINION AND ORDER 
Facto Clause prohibits laws that retroactively "increase the 

punishment for criminal acts"). A law violates the Ex Post Facto 

Clause if it "worsens conditions imposed by its predecessor" by, 

for example, making early release or parole more difficult to 

obtain. Weaver v. Graham, 450 U.S. 24, 33 (1981). 

However, the termination of the Program is an agency decision 

to discontinue funding for a program which, in the BOP'S unfettered 

discretion, could lead to reductions in prison sentences. See 

Smith v. U.S. Parole Commrn, 875 F.2d 1361, 1367 (9th Cir. 1989) 

(I1[T]he operative factor in assessing whether a directive 

constitutes a 'law1 for ex post facto purposes is the discretion 

that the Parole Commission retains to modify that directive or to 

ignore it altogether as the circumstances may require."). Unlike 

the provisional good time credits and overcrowding gain time 

discussed in Weaver and Lynce v. Mathis, 519 U.S. 433, 444-45 

(1997), the determination of whether a prisoner is eligible to 

participate in the Program is discretionary and "is to be made by 

Bureau staff in accordance with sound correctional judgment and the 

availability of Bureau resources." 28 C.F.R. § 524.30. 

In sum, I do not find that the BOP'S termination of the 

Program exceeded its statutory authority or violated the 

Constitution or the APA. 

In addition to arguing that the BOP'S termination of the 

Program was unlawful, defendant argues that it renders his sentence 

10 - OPINION AND ORDER 
invalid for lack of due process, because the court necessarily 

relied on false or unreliable information when imposing sentence 

and recommending participation in the Program. I find that this 

claim implicates the validity of defendant's sentence and is 

properly raised in his motion under § 2255. See United States v. 

Eakman, 378 F.3d 294, 297 (3rd Cir. 2004) (defendant contested the 

validity of his sentence when he argued that the court committed an 

error of law that fundamentally tainted the sentencing proceeding 

when it incorrectly assumed that the BOP had discretion to place 

him in a community corrections center). 

A defendant's due process rights are violated when a 

sentencing court relies on materially false or unreliable 

information. United States v. Hanna, 49 F.3d 572, 577 (9th Cir. 

1995). To challenge the information used in sentencing, a 

defendant must show that the challenged information is 1) false or 

unreliable and 2) demonstrably formed the basis for the sentence. 

United States v. Caperell, 938 F.2d 975, 980 (9th Cir. 1991) 

(citing United States v. Columbus, 881 F.2d 785, 787 (9th Cir. 

1989)) . 

The government urges the court to adopt the reasoning in 

United States v. Serrato, Civ. No. 05-696-BR (D. Or. July 14, 

2005), where Judge Brown found that Serrato failed to establish 

that the court relied on misinformation of a constitutional 

magnitude. Judge Brown found that Serrato could not and did not 

11 - OPINION AND ORDER 
contest the legality of her sentence at the time it was imposed, 

because the BOP did not terminate the Program until after Serrato 

was sentenced and the court was not misinformed regarding the 

availability of the Program at the time of sentencing. See Opinion 

and Order attached to Government's Response, pp. 9-10, 14-15. 

Judge Brown relied on United States v. Addonizio, 442 U.S. 178 

(1979), where the Supreme Court held that post-sentencing changes 

in the guidelines of the Parole Commission that resulted in a 

longer mandatory minimum term of imprisonment than intended by the 

trial judge in imposing sentence, did not provide a basis for 

collateral attack on the sentence pursuant to 28 U.S.C. § 2255. 

Specifically, the Court found that post-sentencing parole guideline 

changes that frustrate a sentencing court's subjective expectations 

in imposing sentence cannot give rise to an error of constitutional 

magnitude. Id. at 186-87. 

I find the facts of this case distinguishable from those in 

Serrato. When imposing sentence, I relied on the fact that the 

Program was an available option and that defendant would be 

considered for participation in the Program. Eakman, 378 F.3d 

at 301-02; United States v. Ruster, 712 F.2d 409, 412-13 (9th Cir. 

1983) (finding a violation of the defendant's due process rights 

when the court relied on misunderstanding of a parole rule s effect 

on the sentence imposed). However, this fact was not correct or 

reliable at the time of sentencing on December 16, 2004. Although 

12 - OPINION AND ORDER 
the Program was not formally terminated until January 14, 2005, 

prisoners were not being considered for eligibility as of November 

2004. See Defendant's Reply Memorandum, Ex. A. Notably, the 

Supreme Court 's holding in Addonizio was based on the fact that the 

alleged error was the frustration of the sentencing judge's 

subjective expectations rather than the reliance on an objectively 

factual error. Addonizio, 449 U.S. at 187. In contrast, I relied 

an objectively unreliable fact that was material to my 

determination of sentence and demonstrably formed the basis of the 

sentence imposed. Therefore, defendant's sentence was imposed in 

violation of his right to due process. 

CONCLUSION 

Defendant's Motion to Vacate, Set Aside, or Correct Judgment 

Under 28 U.S.C. § 2255 (doc. 48) is GRANTED, and the government's 

Motion to Dismiss (doc. 52) is DENIED. The Judgment and Findings 

of Fact issued on December 16, 2004 are HEREBY VACATED. 

IT IS SO ORDERED. 

Dated this G$y day of September, 2005. 

'+ 

i 

Ann Aiken 

United States District Judge 

13 - OPINION AND ORDER