George Vasquez v. Strada ( 2012 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1114
___________
GEORGE VASQUEZ,
Appellant
v.
WARDEN STRADA
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 11-cv-1710)
District Judge: Honorable James M. Munley
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 1, 2012
Before: SLOVITER, SMITH and COWEN, Circuit Judges
(Opinion filed: June 1, 2012)
George Vasquez, Appellant, Pro Se
J. Justin Blewitt, Jr., Esq.
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Counsel for Appellee
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OPINION
___________
PER CURIAM
Appellant George Vasquez was sentenced in
December 1993 in the United States District Court for the
Southern District of New York to a term of imprisonment of
262 months for conspiracy to distribute heroin and for
possession of heroin. In January 1996, Vasquez was
sentenced in the United States District Court for the Middle
District of Pennsylvania to a term of imprisonment of 14
months, to run consecutively to his New York sentence, for
possession of a prohibited object. Vasquez’s current
projected release date with good conduct time is October 10,
2012.
The Second Chance Act of 2007, which applies here,
increases a federal prisoner’s eligibility for pre-release
placement in a halfway house from 6 to 12 months, and
requires the Bureau of Prisons (BOP) to make an individual
determination that ensures that the placement is “of sufficient
duration to provide the greatest likelihood of successful
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reintegration into the community.” 18 U.S.C. §
3624(c)(6)(C). In accordance with the Act, regulations were
issued so that placement in a community correctional facility
by the BOP is conducted in a manner consistent with 18
U.S.C. § 3621(b). See 28 C.F.R. § 570.22. In addition to the
individual determination under section 3621(b), a prisoner’s
participation in, or completion of, Inmate Skills Development
programs within the institution is considered separately to
determine if additional placement time is warranted as an
incentive under 42 U.S.C. § 17541, the Federal prisoner
reentry initiative. Section 17541 requires the BOP to
“provide incentives for prisoner participation in skills
development programs.” Id. at §17541(a)(1)(G). One such
incentive may “at the discretion of the [BOP]” include “the
maximum allowable period in a community confinement
facility.” Id. at § 17541(a)(2)(A).
On April 20, 2011, Vasquez’s Unit Team met to
review his pre-release needs. As a result of this review,
Vasquez was recommended for a 151--180 day placement in
a Residential Re-entry Center (“RRC”). In making its
assessment, the Unit Team considered Vasquez’s criminal
history, his community and financial resources, his
disciplinary history, his employment skills, and family
resources. Finally, Vasquez's institutional programming,
specifically, his participation in or completion of Inmate
Skills Development programs, was considered separately to
determine whether additional RRC time was warranted under
§ 17541. It was noted that although Vasquez completed some
programming courses, he had not regularly participated in
educational programs during his extensive incarceration
period. Vasquez’s referral to community placement was
subsequently approved by the Warden.
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On September 14, 2011, Vasquez filed a petition for
writ of habeas corpus, 28 U.S.C. § 2241, in the United States
District Court for the Middle District of Pennsylvania. In this
petition, Vasquez argued that the BOP failed to comply with
the Federal prisoner reentry initiative, and that the BOP
improperly amended section 3621(b) by unlawfully adding a
sixth factor to trick inmates into thinking that they have been
considered for the incentives that were never properly
implemented by the BOP. Vasquez sought an order directing
the BOP to grant him a community placement of 12 months.
He also requested an order compelling the BOP to explain
why the incentives were never created.
The BOP submitted an answer, arguing that Vasquez
had not exhausted his administrative remedies. In the
alternative, the BOP argued that Vasquez’s habeas corpus
claims lacked merit. In an order entered on December 29,
2011, the District Court agreed with both of the BOP’s
arguments and denied the habeas corpus petition. Vasquez
appeals.
We have jurisdiction under 28 U.S.C. § 1291; United
States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000)
(certificate of appealability not required to appeal from denial
of section 2241 petition). Vasquez may resort to federal
habeas corpus to challenge a decision to limit his RRC
placement, Woodall v. Federal Bureau of Prisons, 432 F.3d
235, 243-44 (3d Cir. 2005). However, prior to filing his
petition, he was required to exhaust his administrative
remedies. Moscato v. Fed. Bureau of Prisons, 98 F.3d 757,
760 (3d Cir. 1996). Vasquez conceded before the District
Court that he did not exhaust his administrative remedies, but
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argued that exhaustion was not necessary prior to filing the
instant petition.
We have held that a prisoner need not exhaust
administrative remedies where the issue presented involves
only statutory construction, Bradshaw v. Carlson, 682 F.2d
1050, 1052 (3d Cir. 1981), but Vasquez asked the District
Court to direct the BOP to provide him with the maximum
12- month RRC placement. Contrary to his assertion in the
proceedings below, he was not merely challenging the
construction of the Second Chance Act, or the BOP’s
implementation of the Federal prisoner reentry initiative.
Exhaustion was required in his case, and Vasquez’s habeas
corpus petition properly was dismissed for failing to exhaust
administrative remedies.
We further agree with the District Court that
Vasquez’s habeas corpus petition lacks merit in any event.
Our review is limited to whether the BOP abused its
discretion. See Barden v. Keohane, 921 F.2d 476, 478 (3d
Cir. 2010). The BOP exercises its authority pursuant to the
Second Chance Act to determine individual prisoner RRC
placements by applying the five factors set forth in section
3621(b). 1 The sixth factor used by the BOP is participation
1
Section 3621(b) states:
(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
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and/or completion of Skills Development programs pursuant
to 42 U.S.C. § 17541. The record establishes that the BOP
gave Vasquez an individual review of the five statutory
factors contained in section 3621(b), and the additional factor
of his participation and/or completion of Skills Development
programs pursuant to 42 U.S.C. § 17541, prior to
recommending that he receive a 151--180 day placement.
Having reviewed the record, and the arguments on
appeal, we see no abuse of discretion in the way that the
section 3621(b) factors were balanced with the goals of the
Second Chance Act in Vasquez’s case. Indeed, Vasquez
received appropriate consideration for the maximum
allowable period of community placement, as reflected by the
BOP’s comments concerning his skills development
completion, his strong ties to the community, his significant
financial resources, and his housing needs. (See DC dkt #8,
without the judicial district in which 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 . . .
18 U.S.C. § 3621(b).
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Ex. 2, p. 44.) The District Court properly concluded that the
BOP did not abuse its discretion in reaching the determination
that a 5 to 6 month placement is of sufficient duration to
account for Vasquez’s history.
We also agree with the District Court that Vasquez
was unable to demonstrate that the BOP failed to comply with
the Federal prisoner reentry initiative. Vasquez claimed that
BOP violated the statute when it failed to develop any
incentives for participation in Inmate Skills Development
Programming other than the incentive of consideration for the
maximum period in an RRC. Although the Second Chance
Act requires the BOP to establish incentives for prisoner
participation in skills development programs, the statute does
not require that any particular incentive be established. See
42 U.S.C. §§ 17541(a)(1)(G) and (2). Moreover, Vasquez
received appropriate consideration for the maximum
allowable period of community placement.
For all of these reasons, we will affirm the judgment of
the District Court.
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