FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE RODRIGUEZ,  No. 07-16014

Petitioner-Appellee, D.C. No.

v.  CV-07-00190-LJO/

DLB DENNIS SMITH, Warden,

Respondent-Appellant. OPINION 

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted

March 11, 2008—San Francisco, California

Filed September 4, 2008

Before: Procter Hug, Jr., Pamela Ann Rymer, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Rawlinson;

Dissent by Judge Rymer

12255
COUNSEL

McGregor W. Scott, Thomas E. Flynn, Sacramento, California (briefed), and Phillip A. Talbert, Sacramento, California

(argued), for respondent-appellant Dennis Smith. 

Stephen R. Sady, Portland, Oregon, for petitioner-appellee

Jose Rodriguez.

RODRIGUEZ v. SMITH 12257
OPINION

RAWLINSON, Circuit Judge: 

Petitioner-Appellee Jose Rodriguez (Rodriguez) filed a

petition for writ of habeas corpus seeking an order directing

the Bureau of Prisons (BOP) to immediately consider transferring Rodriguez to a Residential Re-entry Center (RRC)1

pursuant to the factors set forth in 18 U.S.C. § 3621(b), and

without reference to certain BOP policies that he asserted

contradict the plain language and intent of § 3621(b). The district court granted the petition. Respondent-Appellant Warden

Dennis Smith (Smith) appeals the district court’s order. We

conclude that the BOP’s categorical exercise of discretion as

promulgated in 28 C.F.R §§ 570.20 and 570.21 violates Congress’s intention regarding the statutory inmate placement and

transfer considerations the BOP must undertake, and we

affirm the district court’s decision.

I. FACTS AND PROCEDURAL HISTORY

A. Factual Background

Rodriguez pled guilty to charges of conspiracy to distribute

methamphetamine and money laundering, and, in April, 2001,

was sentenced to 195 months in federal prison. His projected

release date is November 11, 2013. 

When Rodriguez was advised that he would not be eligible

for consideration for RRC placement until 11-13 months

immediately preceding his projected release date, he filed a

petition for a writ of habeas corpus challenging the BOP regulations that prevented him from being immediately considered

1Although the parties both agree that RRCs were formally referred to

as Community Correction Centers (CCCs) and are commonly known as

“halfway houses,” Smith refers to them as RRCs and Rodriguez uses the

term CCC. This opinion will use the term RRC throughout.

12258 RODRIGUEZ v. SMITH
for RRC placement. The petition asserted that the BOP’s policy directly conflicts with 18 U.S.C. § 3621(b). Having served

“over 60 percent” of his sentence, Rodriguez argued that he

was eligible for consideration for a less restrictive placement.

The magistrate judge recommended that the district court

grant the petition, stating: “[A]lthough the BOP has discretion

to refuse to place an inmate in a correctional facility, the exercise of discretion must be based at least in part on the specific

factors outlined in § 3621(b), and the BOP regulations set

forth in §§ 570.20 and 570.21 simply ignore those factors. As

such, the regulations contradict, rather than interpret,

§ 3621(b), and no deference is owed.” The magistrate judge

also recommended that Smith “be [ordered] to consider the

appropriateness of transferring [Rodriguez] to an RRC in light

of the factors set forth in § 3621(b), not excluding any other

factors deemed appropriate by the BOP, without reference to

[the challenged] BOP policy . . .” 

The district court adopted the Findings and Recommendation and granted the petition. Smith filed a timely notice of

appeal. 

B. Statutory and Regulatory Background

Under 18 U.S.C. § 3621(b), the BOP has authority to designate the place of an inmate’s imprisonment.2

 Prior to Decem2Section 3621(b) provides: 

§ 3621 Imprisonment of a convicted person 

. . .

(b) Place of imprisonment.—The Bureau of Prisons shall designate the place of the prisoner’s imprisonment. The Bureau may

designate any available penal or correctional facility that meets

minimum standards of health and habitability established by the

Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which

RODRIGUEZ v. SMITH 12259
ber 13, 2002, the BOP exercised its discretion to allow a

prisoner to serve all or part of his imprisonment in an RRC.

See 69 Fed. Reg. 51213 (Aug. 18, 2004). This practice came

to an end following the issuance of a legal opinion by the

Office of Legal Counsel (OLC) of the Department of Justice

advising that § 3621(b) did not authorize the BOP to place an

inmate in an RRC for the entire term of his sentence, because

community confinement did not constitute imprisonment. Id.

The OLC relied on 18 U.S.C. § 3624(c) and the OLC’s understanding that this section allowed placement in community

confinement only during the last ten percent of the prison sentence being served. Id.

Accordingly, effective December 20, 2002, the BOP

changed its procedure to limit the time during which an

the person was convicted, that the Bureau determines to be

appropriate and suitable, considering— 

(1) the resources of the facility contemplated; 

(2) the nature and circumstances of the offense; 

(3) the history and characteristics of the prisoner; 

(4) any statement by the court that imposed the sentence—

(A) concerning the purposes for which the sentence to

imprisonment was determined to be warranted; or 

(B) recommending a type of penal or correctional facility as appropriate; and 

(5) any pertinent policy statement issued by the Sentencing

Commission pursuant to section 994(a)(2) of title 28. 

In designating the place of imprisonment or making transfers

under this subsection, there shall be no favoritism given to prisoners of high social or economic status. The Bureau may at any

time, having regard for the same matters, direct the transfer of a

prisoner from one penal or correctional facility to another. The

Bureau shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse. 

18 U.S.C. § 3621(b). 

12260 RODRIGUEZ v. SMITH
inmate was eligible for placement in an RRC to the final ten

percent of his sentence, or six months, whichever was shorter.

Id. However, the BOP’s “change was challenged in the Federal courts.” Id. Both the First and the Eighth Circuits found

this policy unlawful because it failed to recognize the BOP’s

discretion to transfer an inmate to an RRC at any time and

was therefore contrary to the plain meaning of § 3621. See

Goldings v. Winn, 383 F.3d 17, 24 (1st Cir. 2004); see also

Elwood v. Jeter, 386 F.3d 842, 847 (8th Cir. 2004). 

In response to these decisions, the BOP changed course.

Contradicting its earlier position in 2002 that it lacked authority to place an inmate in an RRC prior to the end of the

inmate’s sentence, the BOP recognized that it generally has

discretion under § 3621(b) to an place inmate in an RRC at

any time. 69 Fed. Reg. 51213. However, the BOP elected to

“exercise its discretion categorically to limit inmates’ community confinement to the last ten percent of the prison sentence

being served, not to exceed six months.” Id.

The final rules were published as 28 C.F.R. §§ 570.20,

570.21 on January 10, 2005, see 70 F.R. 1659, 2005 WL

34181, and became effective on February 14, 2005.3Id.

3Section 570.20 provides:

§ 570.20 What is the purpose of this subpart?

(a) This subpart provides the Bureau of Prisons’ (Bureau) categorical exercise of discretion for designating inmates to community confinement. The Bureau designates inmates to community

confinement only as part of pre-release custody and programming

which will afford the prisoner a reasonable opportunity to adjust

to and prepare for re-entry into the community. 

(b) As discussed in this subpart, the term “community confinement” includes Community Corrections Centers (CCC) (also

known as “halfway houses”) and home confinement. 

28 C.F.R. § 570.20. 

Section 570.21 provides: 

RODRIGUEZ v. SMITH 12261
C. Other Circuit Court Decisions

Although this case raises an issue of first impression in this

Circuit, as discussed below, five other circuits have directly

addressed the matter. See Muniz v. Sabol, 571 F.3d 29 (1st

Cir. 2008); Levine v. Apker, 455 F.3d 71, 87 (2d Cir. 2006);

Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 244 (3d

Cir. 2005); Fults v. Sanders, 442 F.3d 1088, 1091 (8th Cir.

2006); and Wedelstedt v. Wiley, 477 F.3d 1160, 1161-62 (10th

Cir. 2007). The Second, Third, Eighth and Tenth Circuits

have each concluded that Congress’s intent regarding inmate

placement and transfer as codified is clear from the plain language of 18 U.S.C. § 3621(b), and the BOP regulations establishing a categorical temporal limitation on eligibility for

RRC placement contravene the plain meaning of the statute.

Only the First Circuit has upheld the BOP regulations as an

appropriate exercise of the BOP’s discretion. 

II. STANDARD OF REVIEW

We review questions of statutory interpretation de novo.

United States v. Horvath, 492 F.3d 1075, 1077 (9th Cir.

2007). “Because this case involves an administrative agency’s

§ 570.21 When will the Bureau designate inmates to community confinement? 

(a) The Bureau will designate inmates to community confinement only as part of pre-release custody and programming, during the last ten percent of the prison sentence being served, not

to exceed six months. 

(b) We may exceed these time-frames only when specific

Bureau programs allow greater periods of community confinement, as provided by separate statutory authority (for example,

residential substance abuse treatment program (18 U.S.C.

3621(e)(2)(A)), or shock incarceration program (18 U.S.C.

4046(c)). 

28 C.F.R. § 570.21. 

12262 RODRIGUEZ v. SMITH
construction of a statute that it administers, our analysis is

governed by Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 . . .” Mujahid v. Daniels,

413 F.3d 991, 997 (9th Cir. 2005) (citations omitted). 

Under the Chevron framework we must “first determine[ ]

if Congress has directly spoken to the precise question at

issue, in such a way that the intent of Congress is clear.” Id.

(citation and internal quotation marks omitted). “If the intent

of Congress is clear, that is the end of the matter; for the

court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S.

at 842-43 (footnote reference omitted). 

III. DISCUSSION

A. The BOP Regulations Violate the Clear and

Unambiguous Congressional Intent Expressed in

§ 3621(b).

Employing the Chevron analysis, we must first determine

whether Congress’s intention regarding the BOP’s discretion

in determining prisoner placements and transfers is clear from

the text of 18 U.S.C. § 3621(b). If the statute is clear, we then

decide whether the BOP’s regulations violate that clearly

expressed intent. Chevron, 467 U.S. at 842-43.

Smith relies on 18 U.S.C. § 3624(c) to explain the interplay

between the BOP regulations and § 3621(b). He argues that

because § 3624(c) limits when an inmate may be placed in an

RRC, “prisoners have no right to be considered for an RRC

placement until they have finished 90% of their sentence.

Seen from this point of view, the BOP’s decision in the regulations to impose exactly this limitation is not only a reasonable interpretation of the statute, but the only reasonable

interpretation.” In essence, Smith contends that in light of

§ 3624(c), Congress’s intent with respect to § 3621(b) is not

clear from the statute, and thus deference is owed to the

RODRIGUEZ v. SMITH 12263
BOP’s interpretations (as expressed in 28 C.F.R. §§ 570.20

and 570.21).

[1] However, the plain language of both §§ 3621(b) and

3624(c) make clear that this argument must fail. Section

3621(b) provides in part that “[t]he Bureau of Prisons shall

designate the place of the prisoner’s imprisonment. The

Bureau may designate any available penal or correctional

facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise. . . . The Bureau may at any

time . . . direct the transfer of a prisoner from one penal or

correctional facility to another.” 18 U.S.C. § 3621(b) (emphases added). 

[2] Section 3624(c) provides: “The Bureau of Prisons shall,

to the extent practicable, assure that a prisoner serving a term

of imprisonment spends a reasonable part, not to exceed six

months, of the last 10 per centum of the term to be served

under conditions that will afford the prisoner a reasonable

opportunity to adjust to and prepare for the prisoner’s re-entry

into the community.” 18 U.S.C. § 3624(c).4

[3] Contrary to Smith’s argument that § 3624(c) limits

placement in RRCs to the last ten percent of the sentence

being served, the statute provides that “of” the last ten percent

of the prisoner’s sentence, the BOP shall, to the extent practicable, allow a prisoner to spend up to six months of that time

in an institution such as an RRC. See id. (emphasis added).

Thus, although this statute imposes an affirmative duty on the

BOP to consider placing an inmate in community confinement or a similar pre-release alternative toward the end of the

inmate’s prison term, it does not interfere with the BOP’s dis4Section 3624(c) was amended effective April 9, 2008, slightly rewording the affirmative duty of the BOP to ensure to the extent practicable the

release of a prisoner during the final months of the prisoner’s term. The

statutory amendment does not affect this opinion. 

12264 RODRIGUEZ v. SMITH
cretionary authority to consider such placement prior to the

last ten percent of the prison term. 

As noted, a majority of the other circuit courts that have

considered this issue have concluded that the BOP’s interpretation of § 3624(c) is misplaced. See Wedelstedt, 477 F.3d at

1166 (“Although § 3624(c) surely imposes an affirmative

obligation on the BOP, whenever practicable, to place an

inmate in a CCC or other form of community confinement as

the inmate’s release date nears, § 3624(c) has no bearing on

whether a CCC may be considered as a place of imprisonment

at some earlier point in a prisoner’s period of incarceration.”)

(citations omitted); see also Woodall, 432 F.3d at 250; Goldings, 383 F.3d at 24; Elwood, 386 F.3d at 845-47.5

5

In support of his position that § 3624(c) limits placement into RRCs,

Smith invokes our decision in United States v. Latimer, 991 F.2d 1509,

1514-15 (9th Cir. 1993), for the proposition that “[n]othing in § 3621(b)

requires the BOP to recognize an RRC as an acceptable substitute for a

term of imprisonment and [we] would be going against the Latimer ruling

if [we] were to hold that RRCs were generally intended, or even permissible, places for serving a sentence of imprisonment.” In Latimer, we held

that based on the differentiation of detention in community treatment centers and incarceration in prison in various sections of the United States

Sentencing Guidelines, the defendant’s confinement in a community treatment center did not constitute imprisonment for purposes of calculating

his criminal history score under Section 4A1.2(e)(1). Latimer, 991 F.2d at

1514. In reaching this conclusion, we noted that the Commission had not

“clearly said whether confinement in a community treatment center qualifies as incarceration,” and relied upon the rule of lenity as further support

for our reading of the Guidelines, noting that the question would determine whether the defendant would be required to spend “an additional 15

years of his life behind bars.” Id. 

More recently, we ruled that placement in a Pre-Release Center did not

constitute imprisonment under 18 U.S.C. § 3624(e), and therefore did not

toll the defendant’s supervisory release period. United States v. Sullivan,

504 F.3d 969, 971-72 (9th Cir. 2007); see also Reno v. Koray, 515 U.S.

50, 63-65 (1995) (holding that time spent by prisoner at a community

treatment center while “released on bail” was not “official detention”)

(internal quotation marks omitted). However, in Latimer, our holding was

limited to Section 4A1.2 of the Sentencing Guidelines to calculate the

RODRIGUEZ v. SMITH 12265
[4] Section 3621(b) specifically provides that the BOP has

discretion to place an inmate into “any available penal or correctional facility” and to “direct the transfer of an inmate from

one penal or correctional facility to another” “at any time.” 18

U.S.C. § 3621(b). In contrast, the plain language of § 3624(c)

addresses the separate and unrelated authority and obligation

to place inmates into RRCs during the last ten percent of their

sentences. Thus, we agree with the Tenth Circuit’s conclusion

in Wedelstedt that “§ 3624(b) has no bearing on whether

§§ 570.20 and 570.21 are consistent with the § 3621(b) statutory scheme for BOP placement and transfer determinations.”

477 F.3d at 1166. 

[5] Stripped of the attempted link to § 3624(c), Smith’s

contention that the BOP’s temporal restriction on RRC placement comports with § 3621(b) is singularly unpersuasive. The

BOP regulations necessarily violate the unambiguously

expressed intent of Congress conveyed in § 3621(b), which

defendant’s criminal history score, see 991 F.2d at 1514, and in Sullivan,

to 18 U.S.C. § 3264(e), to determine tolling of the supervised release

period. See 504 F.3d at 972. 

In both cases, an important factor was our recognition that ambiguous

provisions should be interpreted for the benefit of the defendant/releasee.

See Latimer, 991 F.2d at 1514 (applying the rule of lenity to “resolve

ambiguities in favor of the criminal defendant.”); see also Sullivan, 504

F.3d at 972-73 (interpreting § 3264(e) and concluding that the supervised

release period had expired, precluding revocation). These cases offer no

assistance to Smith for two reasons. First, as discussed above, the statutory

provisions in this case are unambiguous. Second, even if the provisions

were ambiguous, the rule of lenity would dictate an interpretation favoring

earlier placement in an RRC. 

In any event, the BOP itself has acknowledged that § 3261(b) grants it

the authority to “place offenders sentenced to a term of imprisonment in

[RRCs].” See 69 Fed. Reg. at *51213. Indeed, this discretion to place

inmates into RRCs is the basis for the very BOP regulations Smith seeks

to have upheld in this case. See Levine, 455 F.3d at 82. Thus, a discussion

of whether confinement in an RRC constitutes imprisonment does not

resolve the issue we face. 

12266 RODRIGUEZ v. SMITH
expressly instructs that all placement and transfer determinations take into consideration each of the five factors enumerated in the statute.6

 That Congress intended the BOP to apply

each of the factors is evidenced by the invocation of the word

“and” between the fourth and fifth factors. See Wedelstedt,

477 F.3d at 1165 66; see also Hawaiian Telephone Co. v.

Public Utilities Com’n, 827 F.2d 1264, 1273 (9th Cir. 1987)

(noting that use of the conjunctive indicates that all of the

conditions listed must be met). 

As aptly stated in Wedelstedt, 477 F.3d at 1116, “[t]he relationships between the two statutes and between § 3621(b) and

the regulations . . . lie at the core of the dispute . . .” 

“18 U.S.C. § 3621(b) . . . gives the agency discretion . . . .

This delegation of discretion, however, is cabined by further

mandatory direction . . . to consider the five factors enumerated in the statute . . .” Id. at 1165 (citation, alteration and

internal quotation marks omitted).

“After considering the language of § 3621(b) and the relationship between its qualified grant of discretion and

§ 3624(c)’s affirmative obligation,” the Tenth Circuit saw no

conflict between the two statutes. Id. at 1166. 

The Tenth Circuit explained that:

The statutory command in § 3621(b) stands alone as

a clear and unambiguous articulation of congressio6The factors the BOP must consider under § 3621(b) are: “(1) the

resources of the facility contemplated; (2) the nature and circumstances of

the offense; (3) the history and characteristics of the prisoner; (4) any

statement by the court that imposed the sentence—(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or correctional facility as

appropriate; and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28.” 18 U.S.C.

§ 3621(b). 

RODRIGUEZ v. SMITH 12267
nal intent regarding the process by which the BOP

should make placement and transfer determinations.

Although § 3624(c) surely imposes an affirmative

obligation on the BOP, whenever practicable, to

place an inmate in a CCC or other form of community confinement as the inmate’s release date nears,

§ 3624(c) has no bearing on whether a CCC may be

considered as a place of imprisonment at some earlier point in a prisoner’s period of incarceration. 

Id. at 1166 (citations omitted); see also Levine, 455 F.3d at 75

(“[T]he combined import of the statutes was to give the BOP

discretion to transfer an inmate to a CCC for a period longer

than six months or ten percent of his sentence, but to oblige

the BOP, where practicable, to transfer inmates to a CCC for

a reasonable part of the last ten percent, not to exceed six

months of his sentence.”) (citations omitted). 

The Second Circuit is in accord. See Levine, 455 F.3d at 82

(noting that § 3621(b) authorizes the BOP to “place a prisoner

where it wishes so long as it considers the factors enumerated

. . .”) (citations and emphasis omitted); see also Woodall, 432

F.3d at 245; Fults, 442 F.3d at 1092. 

We are persuaded that the BOP regulations conflict with

the provisions of § 3621(b). As the Third Circuit decision

explained: “While the BOP may exercise considerable discretion, it must do so using the factors the Congress has specifically enumerated.” Woodall, 432 F.3d at 247. We agree with

the Third Circuit that an “unavoidable conflict” exists because

the statute requires the BOP to consider five factors in determining CCC placement, while the regulation provides that the

enumerated factors will not be fully considered. Id. at 249.

We also join the Third Circuit in its conclusion that the regulations’ construction is not “permissible . . . because they fail

to take into account Congress’s indications that certain individualized factors . . . should be considered . . .” Id. (citation

omitted); see also Levine, 455 F.3d at 85 (“Categorical rule12268 RODRIGUEZ v. SMITH
making, like all forms of agency regulation, must be consistent with unambiguous Congressional instructions . . .”);

Fults, 442 F.3d at 1091. 

[6] In Muniz, the First Circuit concluded that the five factors listed in § 3621(b) were not exclusive. Muniz, 517 F.3d

at 35. The First Circuit added that, in its view, “[n]othing in

this passage requires consideration of the five factors for

every facility or type of facility that is ruled out. Nor is there

a clear expression of intent to withhold the authority to make

rules of general applicability.” Id. at 38 (emphasis in original).

We agree with the First Circuit that the statute contains no

specific prohibition on rules of general applicability. The

problem, however, is that the rules of general applicability

promulgated by the BOP categorically exclude inmates from

RRC eligibility without considering the mandatory factors

articulated in § 3621(b). Although, as the First Circuit recognized, other factors may be considered, § 3621 and the

accompanying legislative history embody unambiguous Congressional intent that the five factors not be ignored. See 18

U.S.C. § 3621(b); see also S. Rep. No. 98-225, reprinted in

1984 U.S.C.C.A.N. 3182, 3324-25 (“In determining the available or suitability of the facility selected, the Bureau is specifically required to consider such factors as the resources of the

facility considered, the nature and circumstances of the

offense, the history and characteristics of the prisoner, the

statements made by the sentencing court concerning the purposes for imprisonment in a particular case, any recommendations as to type of facility made by the court, and any

pertinent policy statements issued by the sentencing commission . . . After considering these factors, the Bureau of Prisons

may designate the place of imprisonment in an appropriate

type of facility, or may transfer the offender to another appropriate facility.”) (emphases added) (footnote reference omitted). 

Because the BOP regulations categorically exclude CCC

placement of inmates with more than ten percent of their senRODRIGUEZ v. SMITH 12269
tences remaining, they necessarily fail to apply the mandatory

factors listed in § 3621(b) to those inmates. This failure to

consider the five statutory factors when considering eligibility

for placement in or transfer to an RRC violates Congress’s

clear intent that each of these factors be applied in making

inmate transfer or placement determinations to “any available

penal or correctional facility.” 18 U.S.C. § 3621(b) (emphasis

added). 

[7] The Muniz opinion “emphasize[d] that were the regulations to leave little or no room for the opportunity of the individualized assessment implied by Congress, we would regard

that as contrary to intent of the statute.” 517 F.3d at 39 n.17.

However, that is precisely what the categorical BOP regulations accomplished - they left “no room for the operation of

the individualized assessment” expressly mandated in

§ 3621(b). Id. We cannot agree with the First Circuit that the

categorical failure to comply with unambiguously expressed

Congressional intent can be rationalized away. Rather, we

agree with the Second, Third, Eighth and Tenth Circuits’ conclusions that the BOP regulations cannot be reconciled with

the unambiguous congressional intent expressed in § 3621(b).

See Wedelstedt, 477 F.3d at 1162; Levine, 455 F.3d at 87;

Fults, 442 F.3d at 1091; Woodall, 432 F.3d at 249. Accordingly, the regulations are invalid under Chevron. 

B. The Supreme Court’s Ruling in Lopez Does Not

Support the BOP’s Categorical Exercise of Discretion.

Relying on the Supreme Court’s decision in Lopez v. Davis,

531 U.S. 230 (2001), the First Circuit held that “[t]he question

whether a CCC is an appropriate facility for any prisoner during the first ninety percent of a term is a subset” of the

broader question of “what specific facility is the right one to

house each prisoner.” Muniz, 517 F.3d at 39. The First Circuit

reasoned that deciding that “subset” “on a categorical basis is

not the same as deciding the final issue of placement on a categorical basis.” Id. However, this linguistic hairsplitting does

12270 RODRIGUEZ v. SMITH
not change the fact that the regulations thwart the explicitly

expressed will of Congress. 

In Lopez, the Supreme Court upheld a BOP regulation that

categorically excluded inmates convicted of offenses involving firearms from discretionary early release eligibility under

18 U.S.C. § 3621(e)(2)(B). 531 U.S. at 233. However, the

Supreme Court expressly noted that § 3621(e)(2)(B) did not

require “individualized determinations.” Id. at 243-44. The

Court also emphasized that Congress was silent as to the “precise question at issue” and a “statutory gap” existed. Id. at

242. 

The Court in Lopez pointedly discussed the absence from

the statutory language of any criteria the BOP could use in

applying the statute. Id. In contrast, § 3621(b) provides a list

of five factors, all of which the BOP must consider in determining prisoner placement. See 18 U.S.C. § 3621(b)(1)-(5).

Moreover, at least three of these factors are inmate-specific.

See id. at § 3621(b)(2)-(4) (calling for consideration of “(2)

the nature and circumstances of the offense; (3) the history

and characteristics of the prisoner; [and] (4) any statement by

the court that imposed the sentence . . .). Thus, unlike the statute in Lopez, the BOP is not left without any guidance on how

to apply the statute. 

We echo the observations made by the Tenth Circuit: 

Lopez makes clear . . . that an agency’s authority to

promulgate categorical rules is limited by clear congressional intent to the contrary. In other words,

Lopez applies only when Congress has not spoken to

the precise issue and the statute contains a gap. The

Lopez Court was careful to state that 18 U.S.C.

§ 3621(e)(2)(B) . . . did not identify any criteria for

the BOP to use . . . Section 3621(b), in contrast, enumerates five factors, including three that are specific

to the individual prisoner . . . 

RODRIGUEZ v. SMITH 12271
Wedelstadt, 477 F.3d at 1168 (citations omitted); see also

Levine, 455 F.3d at 86; Fults, 442 F.3d at 1091; Woodall, 432

F.3d at 247 (noting that “sentencing recommendations and

other individual factors . . . are not generally applicable[,]” as

was the case in Lopez, where the only factor at issue was use

of a firearm during the crime of conviction. “Moreover, Congress did appear to express intent to withhold from the BOP

the authority to make CCC placements without the guidance

of the statutory factors.”) (emphasis in the original). 

Like the majority of our sister circuits that have considered

this argument, we are not persuaded that Lopez supports the

BOP’s categorical exercise of discretion when administering

§ 3621(b). 

Finally, we are not convinced that reference to some of the

factors in the BOP regulations translates into compliance with

the statutory command contained in § 3621(b). See Muniz,

517 F.3d at 39. As the Tenth Circuit astutely remarked:

The BOP cannot validate this otherwise invalid regulation by claiming to have categorically considered

the five statutory factors during the rulemaking process. The individualized nature of three of the five

factors - the nature of the prisoner’s offense, the prisoner’s history and characteristics, and the sentencing

judge’s statement - made such consideration impossible. 

Wedelstadt, 477 F.3d at 1168 (citing Fults, 442 F.3d at 1092);

see also Woodall, 432 F.3d at 248.

IV. CONCLUSION

The BOP’s regulations conflict with the plain language of

18 U.S.C. § 3621(b) as to when an inmate may be considered

for initial placement in or transfer to an RRC. We therefore

AFFIRM the district court’s order granting the writ of habeas

12272 RODRIGUEZ v. SMITH
corpus ordering the BOP to promptly consider Rodriguez for

transfer to an RRC without reference to 28 C.F.R. §§ 570.20

and 570.21. 

AFFIRMED. 

RYMER, Circuit Judge, dissenting: 

While I understand joining the parade of courts to decide

this issue, I would reverse for the reasons stated in Muniz v.

Sabol, 517 F.3d 29, 31 (1st Cir. 2008), and in Judge Raggi’s

well-reasoned dissent in Levine v. Apker, 455 F.3d 71, 87 (2d

Cir. 2006).

RODRIGUEZ v. SMITH 12273