## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 07-1651

___________ Gary H. Miller, *
* Appellant, *
* v. * * J.D. Whitehead, Warden, *
* Appellee. *
* ___________ * Appeals from the United States * District Court for the No. 07-1652 * District of South Dakota. ___________ *
* Fernando Antonio Lovato, *
* Appellant, *
* v. *
* J.D. Whitehead, Warden, *
* Appellee. *
* ___________ *
* No. 07-1653 * ___________ *
*-2- Kenneth Howard, *
* Appellant, *
* v. *
* J.D. Whitehead, Warden, *
* Appellee. *
* ___________ *
* No. 07-1654 * ___________ *
* David A. Lauer, Sr., *
* Appellant, *
* v. *
* J.D. Whitehead, Warden, *
* Appellee. *

___________ Submitted: December 11, 2007 Filed: May 30, 2008

___________ Before COLLOTON, BEAM, and BENTON, Circuit Judges.

___________ COLLOTON, Circuit Judge.

Several inmates at the Federal Pri son Camp at Yankton, South Dakota, petitioned for writs of habeas corpus unde r 28 U.S.C. § 2241, alleging that the Bureau1 The Honorable Lawrence L. Piersol, Un ited States District Judge for the District of South Dakota.

2 The statute directs the BOP to consider – (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 whic h 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.
-3- of Prisons unlawfully declared them inelig ible for placement at a Residential Re-entry Center. The district court 1 denied the petitions. We affirm with respect to two of the appellants, and dismiss the other two appeals as moot.

I.

The Bureau of Prisons (“BOP”) is authorized by statute “to designate the place of [a] prisoner’s imprisonment.” 18 U.S.C. § 3621(b). Two statutes include further guidance regarding this authority. Section 3621(b) provides that the BOP “may at any time,” having regard for five matters enumerated in the statute, “direct the transfer of a prisoner from one penal or corr ectional facility to another.” Id

. 2Another statute in effect at the time these inmates sought transf er to an RRC directedthat “[t]he 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) (2000) (amended 2008).3 The new policy was adopted after the Department of Justice concluded that an RRC is not a “place of imprisonmen t” for purposes of § 3621(b). See Office of Legal Counsel, U.S. Department of Justice, Bureau of Prisons Practice of Placing in Community Confinement Certain Offe nders Who Have Received Sentences of Imprisonment , 2002 WL 31940146, at *5 & n.6 (Dec. 13, 2002). The BOP conceded in Elwood , however, that an RRC is a place of imprisonment, and we assumed the point for purposes of analysis. 386 F.3d at 846.
-4- In December 1998, pursuant to the author ity described in these statutes, the BOP issued Program Statement (“PS”) 7310.04. This program statement established a policy concerning when the BOP will pl ace an inmate in a Residential Re-Entry Center (“RRC”), formerly known as a “Co mmunity Confinement Center.” The statement opined that an RRC is a “penal or correctional facility” within the meaning of § 3621(b), and implicitly assumed that an RRC also is a “place of imprisonment.” The statement reasoned that § 3624(c) did not restrict the use of RRCs to the last ten percent of the inmate’s term, because § 3621(b) allows the BOP generally to “designate any available penal or correctiona l facility.” It pro ceeded to explain that a decision on RRC placement “normally” should be made “no later than 11 to 13 months before an inmate’s projected rel ease date.” The statement also includes guidelines for an RRC referral, including that“[a]n inmate may be referred up to 180 days, with placement bey ond 180 days highly unusual, and only possible with extraordinary justification.”

In 2002, the BOP abandoned this program statement, and determined that an inmate was eligible for placement in an RRC only during the last ten percent of the inmate’s term of imprisonment. See 28 C.F.R. § 570.21. In Elwood v. Jeter , 386 F.3d 842 (8th Cir. 2004), the BOP defended its new policy on the ground that § 3624(c) limits the BOP’s transfer authority under § 3621(b) to the last ten percent of the prisoner’s term. 3 Elwood rejected this argument, holding that § 3624(c) requires the BOP, when practicable, to tr ansfer a prisoner to an RRC fo r a reasonable part of the last ten percent of his sentence, not to exceed six months, but that § 3624(c) does not-5- forbid the BOP from designating a prisoner to an RRC for more than ten percent of his sentence pursuant to its authority under § 3621(b). Id . at 846-47.

In response to our decision in Elwood , and a similar decision from the First Circuit, Goldings v. Winn , 383 F.3d 17 (1st Cir. 2004), the BOP adopted new regulations in February 2005. Under these regulations, th e BOP again strictly limited transfers to RRCs to the la st ten percent of a prisoner’s term, but did so as a categorical exercise of its discretion under § 3621(b). 28 C.F.R. §§ 570.20-21. This regulation was challenged in Fults v. Sanders , 442 F. 3d 1088, 1089 (8th Cir. 2006), and a divided panel held that the regul ation was “contrary to the statute’s unambiguous language,” id . at 1090, because § “3621(b) requires that discretion be exercised on an individual basis.” Id . at 1092.

In response to Fults , the BOP instructed official s at the Yankton facility to act in accordance with PS 7310.04, thus bringing its RRC placement policy full circle. As before, PS 7310.04 provided that the BO P “normally” would make a decision on RRC placement 11 to 13 months before a prisoner’s projected release date, and that RRC placements for longer than 180 days are possible only with “extraordinary justification.”

In this case, four inmates with more than six months remaining on their sentences sought transfer to an RRC in 2006 or 2007. Inmate Gary Miller requested transfer to an RRC for the last 73 months of his ten-year sentence. Fernando Lovato requested transfer for the final 16 to 18 months of his ten-year sentence. Kenneth Howard initially requested transfer for th e last 8 to 10 months of his nine-year sentence, and later, with 20 months remaining in his sentence, Howard requested immediate placement in an RRC. David Lauer, Sr., requested transfer for the final 30 months of his 70-month sentence. The BO P rejected the various requests. The warden advised Miller, Lovato, and Lauer that each had not established an “extraordinary justification” for servi ng more than 180 days in an RRC. Howard submitted as evidence two memoranda, labele d “informal resolution,” in which a unit-6- manager and correctional counsel or advised Howard that he would be considered for RRC placement when there were 11-13 m onths remaining in his sentence.

The inmates petitioned for writs of hab eas corpus, asserting that § 3621(b), as interpreted in Elwood and Fults , prohibited the BOP from using the time frames specified in the program stat ement, or from requiring an “extraordinary justification” for lengthy placements in an RRC. The distri ct court denied the petitions. The court reasoned that the BOP was authorized to impose a requirement of “extraordinary justification” for early placem ent at an RRC, and that th ere was no showing that the BOP had failed to consider the factor s in § 3621(b) in making individualized determinations concerning who is placed in anRRC. In sum, the court ruled that the BOP had “not acted contrary to law in c onsidering inmates for release to a halfway house 11 to 13 months prior to projected release and in restricting halfway house placements beyond 180 days to those cases dem onstrating extraordinary justification.”

Since this appeal was submitted, we ha ve been notified of several pertinent developments. First, the BOP transferred Lovato and Howard to RRCs in January and April 2008, respectively. Second, in Ap ril 2008, Congress enacted the Second Chance Act of 2007, which amended § 3624(c). Pub. L. No. 110-199, 122 Stat. 657 (2008). The new statute provides that the Director of the BOP shall “ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions thatwill afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community.” Second Chance Act § 251, 122 Stat . at 692. In reaction to this statute, and the new 12-month maximum placement, the BOP issued guidance directing that “inmates must now be reviewed for pr e-release RRC placements 17-19 months before their projected release dates. ” We are advised that Lauer’s request for placement in an RRC has been re-assessed in light of this guidance, and that the BOP has determined that a placement of 180 days in an RRC is “appropriate to aid in his transition needs.” Miller’s case has not been reevaluated.-7- In view of these developments, we conc lude that the claims of Lovato and Howard are moot, because the relief they seek has been granted. See Calderon v. Moore , 518 U.S. 149, 150 (1996) (per curiam). Lauer and Mille r have not been placed in an RRC, so their objections to the warden’s decisions denying immediate placement continue to present a live controversy.

II.

The inmates contend that PS 7310.04, as applied to them in 2006, conflicts with § 3621(b), as interpreted in Fults , because it “automatically excludes all inmates not serving the last 11-13 months of their prison sentence[s].” Fults held that the 2005 regulation conflicted with § 3621(b) by “excluding an entire class of inmates – those not serving the final ten percent of their sentences – from the opportunity to be transferred to a CCC.” 442 F.3d at 1092. The inmates here argue that like the regulation in Fults , the program statement categorica lly excluded a class of inmates from the opportunity to be transferred.

We reject this contention because PS 7310.04, as applied to Miller and Lauer, did not automatically preclude giving cons ideration to an RRC placement earlier than the last 11 to 13 months of an inmate’s sent ence. In the cases of Miller and Lauer, the warden did consider the possibility of transfer at an earlier date, but denied the requests based on the absence of an “extraordinary justifi cation” to grant a placement of greater than 180 days. The program st atement, moreover, provided only that “[a] final and specific release preparation plan , including a decision as to [RRC] referral, is normally established at a team meeting no later than 11 to 13 months before an inmate’s projected release date.” (empha sis added). The plain language of the program statement allowed a decision re garding RRC referral earlier than 11 to 13 months before release; the policy said only that the decision usually is made “no later” than that time. The qualifying term “normally” also implied that even if 11 to 13 months before release were the usual tim e frame for a decision on transfer, the BOP had authority to render a decision at an earlier time in abnormal situations. By its4 The new BOP guidance issued in lightof the Second Chance Act includes an “adjustment” to PS 7310.04, which states that “RRC needs can usually be accommodated by a placement of six months or less,” and that placement in an RRC for more than six months must be approve d in writing by a regional director of the BOP. Subject to further elaboration by the BOP or a specific decision by a warden applying this guidance, we do not understand this adjustment to supersede the provision of PS 7310.04 stating that “pl acement beyond 180 days [is] highly unusual, and only possible with extraordinary justification.”
-8- terms, therefore, the program statement did not effect the type of absolute categorical exclusion of a class of inmates that underlay the decision in Fults

.

Fults , moreover, did not purport to hold that an inmate is entitled to a fullblown analysis of a request to transfer, involving individualized consideration of all five factors in § 3621(b), whenever the inmate chooses to make such a request. Taken to its logical conclusion, the argument a dvanced by the inmate s would require the BOP to consider daily requests for transferto an RRC from every inmate in a facility, and to deny such requests onl y after an individualized consideration of each inmate’s request and the five statutory factors. We agree with the First Circuit that “Congress surely did not intend such a result.” See Muniz v. Sabol , 517 F.3d 29, 36 n.14 (1st Cir. 2008). “Even if a statutory scheme requires individualized determinations, . . . the decisionmaker has authority to rely on rulemaking to resolve certain issues of general applicability unless Congress clearly expresse s an intent to withhold that authority.” Lopez v. Davis , 531 U.S. 230, 243-44 (2001) (interna l quotation omitted). It was not unreasonable for the BOP to conclude categor ically that a decisi on on transfer to an RRC “normally” should be made “no later” than 11 to 13 months before a projected release date, because that was the tim e when most inmates would be serious candidates for such a transfer.

The inmates also challenge the BOP guideline that placement in an RRC for more than 180 days is “highly unusual” and possible only with an “extraordinary justification.” 4 We disagree with the inmates’ contention that the “extraordinary-9- justification” requirement is a non-statutory “factor” that the BOP is prohibited from adding to the analysis under § 3621(b). The “extraordinary justification” requirement is not a factor at a ll. It is a standard for deciding whether to grant a request for extended placement in an RRC.

The “extraordinary justification” requi rement does give weight to the time remaining on the inmate’s sentence as a f actor in the placement analysis, but we do not think this is inconsistent with § 3621(b). Time remaining on a sentence may bear on some of the statutory factors. An inmate serving a lengthy sentence will have a greater impact on the resources of the facility contemplated, see § 3621(b)(1), and placement of such an inmate in an RRC may be in tension with the purposes for which a sentence of imprisonment was de termined to be warranted. See § 3621(b)(4)(A). And even if time remaining could not be tie d directly to a statutory factor in a particular case, we do not read § 3621(b) to preclude the consideration of factors beyond those set forth in the statute. See Levine v. Apker , 455 F.3d 71, 86 (2d Cir. 2006).

Nor do we think the manner in whic h time remaining on a sentence was considered in the cases of Miller and Lauer conflicts with the statute or our precedents. Unlike the situation in Fults , the requirement that an inmate make a stronger showing under the statutory factors to justify an extended RRC placement does not categorically remove the opportunity for the BOP to exercise its discretion with respect to an entire class of inmates. Rather, the program statement reflects a determination that ordinarily a placement of more than 180 days is not appropriate under § 3621(b). But a particular inmate still has an opportunity to show that in the individual circumstances of his case, a longer placement would be justified.

The inmates also complain that the “e xtraordinary justification” guideline suggests that the BOP requires an inmate to supply information about events occurring after the inmate was first incarcerated, while a ll of the factors listed in the statute refer to matters occurring prior to incarceration. The implication of the argument is that-10- consideration of post-incarceration circumstances is inconsistent with the statute. The premise of this contention is flawed, because the statut ory matters are not limited to pre-incarceration circumstances. The “characteristics of the prisoner,” § 3621(b)(2), may well include the inmate’s behavior inprison. The “resources of the facility contemplated,” § 3621(b)(1), may depend on the capacity of a particular facility to accept additional inmates into its pr ogram at the time of the request.

Apart from the policy statement, Miller a nd Lauer also appear to challenge the manner in which the warden disposed of their particular requests for immediate transfer to an RRC. The inmates have not established, however, that the warden failed to consider the relevant statutory fact ors in denying their requests. Although the warden’s responses were brief, the st atute does not require the BOP to provide prisoners with a detailed statutory analysis whenever a prisoner requests an immediate transfer to an RRC. In Fults , we affirmed a district court order that simply required the BOP to consider such a request “in good faith.” Fults , 442 F.3d at 1089. We see no evidence that the warden acted other th an in good faith when he concluded that immediate RRC placement was not appropriate.

For the foregoing reasons, the judgment of the district court is affirmed with respect to inmates Miller and Lauer, and the appeals of inmates Lovato and Howard are dismissed as moot. The government’s unopposed motion to supplement the record is granted.

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