NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-2330

___________

DEREK A. CAPOZZI,

Appellant

v.

WARDEN USP - LEWISBURG

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 12-cv-00604)

District Judge: Honorable Yvette Kane

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 9, 2015

Before: FUENTES, SHWARTZ and ROTH, Circuit Judges

(Opinion filed: May 15, 2015 )

___________

OPINION*

___________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Derek A. Capozzi appeals from an order of the United States District Court for the 

Middle District of Pennsylvania, which denied his habeas petition. We will affirm the 

District Court’s judgment.

Capozzi is a federal inmate serving a sentence for firearms and extortion offenses. 

In 2010, he was housed at the United States Penitentiary in Lewisburg, Pennsylvania. In 

March of that year, he was released to the custody of the United States Marshals Service 

on a writ of habeas corpus ad testifcandum to testify at a trial in Kentucky. The Marshals 

transferred Capozzi to the Grayson County Detention Center (“GCDC”) for his time in 

Kentucky. When officials from GCDC were transporting Capozzi back to the airport to 

return to Lewisburg, Capozzi escaped and was later recaptured and eventually returned to 

USP-Lewisburg. After his return, Capozzi was disciplined for the escape under the 

Federal Bureau of Prisons’ (“BOP”) Inmate Discipline Program.1 Among other 

sanctions, the Prison disallowed 68 days of good conduct time.

Following unsuccessful administrative appeals, Capozzi filed a petition for a writ 

of habeas corpus in the District Court arguing solely that the BOP lacked jurisdiction to 

discipline him for the escape because he was not in BOP custody at the time of the 

misconduct. The District Court rejected Capozzi’s argument and he timely appealed.

 

1 Capozzi was also criminally charged with and convicted of knowingly escaping from 

the GCDC officials, in violation of 18 U.S.C. § 751(a). United States v. Capozzi, 747 F. 

Supp. 2d 846, 848 (E.D. Ky. 2010), aff’d, 723 F.3d 720 (6th Cir. 2013), cert. denied, 134 

S. Ct. 654 (2013).
3

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). In a federal

habeas proceeding, we exercise plenary review over a district court’s legal conclusions. 

Denny v. Schultz, 708 F.3d 140, 143 (3d Cir. 2013). We may affirm a district court for 

any reason supported by the record. Brightwell v. Lehman, 637 F.3d 187, 191 (3d Cir. 

2011).

Capozzi argues on appeal that the BOP did not have jurisdiction to discipline him. 

He argues that “custody” for purposes of the federal criminal code is not the same as 

custody for purposes of BOP disciplinary proceedings, and that the latter requires actual 

physical custody of the inmate. He also argues that the Respondent’s filings in response 

to his objections to the Magistrate Judge’s Report and Recommendations, and in response 

to his motions to strike, should be stricken and the arguments therein should be deemed 

waived. We need not reach his waiver argument, because we conclude that even without 

considering any of the arguments that Respondent raised in the filings to which Capozzi 

objects, Capozzi’s jurisdictional claim is wrong as a matter of law.

In examining whether the BOP has correctly construed the scope of its authority to 

discipline federal inmates, we first ask whether “Congress has directly spoken to the 

precise question at issue.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 

U.S. 837, 842 (1984). We have not discovered any statutory authority that states that 

only inmates in physical custody are subject to the BOP’s discipline. See 18 U.S.C. 

§ 4001(b)(2) (Attorney General may “classify the inmates[] and provide for their proper 

government, discipline, treatment, care, rehabilitation, and reformation”); 18 U.S.C. 
4

§ 4042(a)(3) (“The [BOP], under the direction of the Attorney General, shall-- . . . (3) 

provide for the protection, instruction, and discipline of all persons charged with or 

convicted of offenses against the United States.”).2 Because the statute is silent, we turn 

to the regulations. “When a statute expressly leaves a gap for an agency to fill with its 

rulemaking authority, the agency’s regulations must receive ‘controlling weight unless 

they are arbitrary, capricious, or manifestly contrary to the statute.’” Stiver v. Meko, 130 

F.3d 574, 577 (3d Cir. 1997) (quoting Chevron, 467 U.S. at 844).

Capozzi urges us to consult 28 C.F.R. §§ 541.1 and 541.2. He argues that the text 

of those regulations makes clear that the BOP’s disciplinary rules apply only to inmates 

in physical custody of the Bureau, either by being in a BOP facility, or by being 

designated to a facility with which the BOP has an agreement.3 He notes that at the time 

 

2 The pertinent portions of these statutes have not changed since the time of Capozzi’s 

escape.

3 The regulations provide as follows:

This subpart describes the Federal Bureau of Prisons’ (Bureau) inmate discipline 

program. This program helps ensure the safety, security, and orderly operation of 

correctional facilities, and the protection of the public, by allowing Bureau staff to 

impose sanctions on inmates who commit prohibited acts. Sanctions will not be imposed 

in a capricious or retaliatory manner. The Bureau's inmate discipline program is 

authorized by 18 U.S.C. 4042(a)(3).

28 C.F.R. § 541.1 (eff. June 20, 2011).
5

of the misconduct, he was not in the physical custody of a BOP facility, nor had he been 

designated to serve his sentence in a facility with which the BOP has an agreement. He 

also argues, by way of analogy, that federal inmates serving their sentences in noncontract facilities (such as GCDC), are not subject to the BOP’s disciplinary rules.4

However, the regulation and Program Statement to which Capozzi refers were not 

promulgated until 2011. At the time of Capozzi’s escape, the regulation read as follows:

So that inmates may live in a safe and orderly environment, it is necessary 

for institution authorities to impose discipline on those inmates whose 

behavior is not in compliance with Bureau of Prisons rules. The provisions 

of this rule apply to all persons committed to the care, custody, and control 

(direct or constructive) of the Bureau of Prisons.

28 C.F.R. § 541.10(a) (2010) (emphasis added). While this is a very broad statement, we 

cannot say that it is an arbitrary interpretation of the statute or manifestly contrary to the 

statute. We find that Capozzi was, at the very least, under the constructive control of the 

 

This program applies to sentenced and unsentenced inmates in Bureau custody. It also 

applies to sentenced and unsentenced inmates designated to any prison, institution, or 

facility in which persons are held in custody by direction of, or under an agreement with, 

the Bureau of Prisons.

28 C.F.R. § 541.2 (eff. June 20, 2011).

4 The BOP’s Program Statement with regard to § 541.2 states that the “policy applies to 

all persons in the custody of the Federal Bureau of Prisons or Bureau contract facilities . . 

. [but does] not apply to Federal inmates designated to a non-Federal facility (e.g., 

inmates serving Federal sentences in state or county facilities).” BOP Program Statement 

5270.09 (eff. Aug. 1, 2011).
6

BOP at the time of his escape. Further, the corresponding Bureau of Prisons’ Program 

Statement in effect at the time is similarly broad:

Examples of persons to whom this policy applies include, but are not 

limited to, an inmate who is on pretrial status, or on writ, or on escorted trip 

or furlough, or who is escorted by U.S. Marshals or other federal law 

enforcement officials, or who is in a camp, contract facility, (other than 

contract CCCs) or hospital, or who is returned to Bureau custody from a 

contract facility (includes contract CCCs). These provisions do not apply to 

a federal inmate designated to a non-federal facility (e.g., inmates serving 

Federal sentences in state facilities or contract CCCs).

Program Statement 5270.08 (Dec. 4, 2009) (emphasis added). While Program 

Statements are due less deference than a regulation, see Roussos v. Menifee, 122 F.3d 

159, 163-64 (3d Cir. 1997) (explaining that Program Statements are due less deference 

because they are not promulgated under the Administrative Procedures Act and they can 

be changed at will by the BOP), we are willing to give this particular Program Statement 

some deference, as it does not explicitly conflict with the regulation or governing statute, 

cf. id. at 164 (rejecting Program Statement that is inconsistent with statute and 

regulation). The statement clearly applies the provisions of the discipline program to 

someone in Capozzi’s situation—he was “on writ” at the time of his escape. 

In sum, as Capozzi does not dispute the fact that he has been convicted of an 

offense against the United States, he is and was subject to the discipline of the Attorney 

General (and the Attorney General’s designee, the BOP) pursuant to 18 U.S.C. 

§ 4042(a)(3). The regulation in effect at the time permissibly construed the statute to 

include discipline of inmates in the constructive control of the BOP, and the Program 

Statement made clear that misconduct while “on writ” would be covered. 
7

For the foregoing reasons, we hold that the District Court properly denied the 

petition for a writ of habeas corpus, and we will affirm the Court’s judgment.