ee UNITED STATES DISTRICTCOURT = ss DISTRICT OF SOUTH DAKOTA . a SOUTHERN DIVISION .

HOWELL DEAN. O'BRYAN, JR.,. CIV 21-4052 * □ Petitioner, : vs. oo MEMORANDUM OPINION . . AND ORDER... J. W. COX, in his. capacity as * Warden of Yankton Federal Prison Camp, * oe Respondent. : .

□□ INTRODUCTION we This is the habeas corpus petition pursuant 10.28 US.C. § 2241 of Howell Dean O'Bryan, □□□□□ an inmate at the Yankton Prison, Camp in Yankton, South Dakota. Now pending before the Court is a Motion to Dismiss for lack of subject matter jurisdiction and failure to state a claim. Mr. -O'Bryan resists the Motion, claiming that he is entitled to immediate release because of time credits - □ under the First Step Act. The Bureau of Prisons claims it does not have to allow any time credits from the First Step Act to any prisoner until after J anuary 15,2022. The Court finds that it does have subj ect matter jurisdiction and a claim is stated under which relief can be granted.

“FACTS Mr. O'Bryan was sentenced on August 15, 2017, is currently serving a 90-month sentence for conspiring to possess with intent to. distribute 50 grams or more of methamphetamine and for _ illegally possessing a firearm. Respondent proj ects Mr. O'Bryan's release date to be February 23, 2022, via good conduct time release. (

_ Mr. O'Bryan asserts he is now entitled to 14 months credit against his sentence which, to gether with a six-month pre-release home detention eli gibility, means he should already havebeen _ released. Respondent calculates that Petitioner is entitled to 43.75 days of time credits but will not . apply any time credits until after January 15, 2022. □ )

DISCUSSION The First Step Act ("FSA"), Public Law No: 115-39 1, was enacted into law on December 21,

2018. Mr. O'Bryan invokes the portion of the FSA dealing with an inmate's ability to earn time: credits allowing him to secure earlier release from prison. a

Congress directed the Bureau of Prisons ("BOP") to develop a system to assess each inmate's risks and needs.

(a).. That risk and needs assessment tool was required to be completed no later than July 19, 2019.

The BOP met this deadline by announcing the development of its Prisoner Assessment Tool Targeting Estimated Risk and Needs ("PATTERN") ‘tool on July 19, 2019. See Press Release 19-784, US. Dep't of Justice, Department of Justice □ Announces the Release of 3,100 Inmates Under the First Step Act, Publishes Risk and Needs Assessment System available at https://www. justice. gov/opa/pr/department-justice-announces- release-3 1 00-inmates-under-first-step-act-publishes-risk-and (last checked May 14,2021),

. Congress then directed the BOP to apply this assessment (the PATTERN tool) to determine _ each inmate's needs for programming appropriate to him:

(a)(3). This step was required to be completed 180 days after the creation of the PATTERN tool, or by January 15, 2020. The BOP met this deadline by screening all inmates using the PATTERN tool as announced on January 15,2020. See Press Release 20-37, US. Dep't of Justice, Department of Justice Announces: Enhancement to the Risk Assessment System and Updates on First Step Act Implementation available . at http://www. justice. gov/ opa/pr/department-justice-announces-enhancements-risk-assessment- system-and-updates-first-step-act (last checked May 14, 2021), a □

. Congress created in the FSA a system of "time credits" to ericourage inmates to participate □ ‘in the particular programming needed by them as indicated by their PATTERN assessment,

(d). Under the FSA, time credits may be earned by eligible prisoners who successfully complete the right type of pro gramming or productive activities.

(d)(4)(A). Time □ credits for the right kind of programming are awarded at the rate of "1 0 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities."

2(d)(4)(A)(). An inmate may receive an additional 5 days

eredit for every 30 days, thus meaning such an inmate would receive 15 days credit or.50%,ifcertain conditions are met. See 18. U.S.C. §3632(d)(4(A)Gi). =

□□□ □□□ programs or activities an inmate participates in qualify.for these time credits.. Jd., and - §§ 3 635(3), (5). The BOP cannot grant time credits for programs successfully completed beforethe enactment of the FSA.

(d)(4)(B).

| TheFSA directs the BOP to phase in the entire program for all prisoners. The phase-in □□□□ on January 15, 2022.

(h)(2). During the phase-in period, the BOP is to provide priority to inmates based on the proximity of their release dates. 18 U.S.C.§ 3621(h)(3)..

Congress specified that:

_ Preliminary ¢xpansion of evidence-based recidivism reduction programs and □ □ authority to use incentives. — Beginning on the date of enactment of this subsection - [December 21, 2018], the Bureau of Prisons may begin to expand any evidence-based recidivism reduction pro grams and productive. activities that exist at a prison as of . such date, [December 21,2018] and may offer to prisoners who. successfully participate in such programs and activities the incentive and rewards described in □□ □□ subchapter D: (emphasis added). □

18 U.S.C.-§ 3621(h)(4),

This is the subsection that has been primarily relied upon by those courts that have found no - subject matter jurisdiction. The problem with that reliance is that the permissive "may".in each instance only refers to the programs that were. in existence on the date of enactment, December 21, 2018. There is an interplay between

(d)(4)(B) and

(h)(4).

(d)(4)(B) with regard to time credits states: (B) Availability—A prisoner may not earn'time credits under this paragraph □ for an evidence-based recidivism reduction program that the prisoner.successfully □□□ completed— (i) prior to the.date of enactment of this subchapter; (emphasis added). ©

§ 3632(d)(4)(B) prohibits only the earning of time credits for pro grams completed before □□□□ enactment on December 21 ,2018.. By comparison, § 3621(h)(4) with its “may” language allows the BOP to expand the programs that existed at the time of enactment, and the second “may” allows the BOP the discretion to allow time credits for “such programs and activities.” “Such programs” □□□ the programs and “activities that exist at a prison as of such date,....”, “such date” once again being the date of enactment, December 21, 2018.

§ 3621(h)(4) is only dealing with programs that existed as of the date of enactment on, December 21, 2018, allowing those pro grams to be expanded if the BOP elects to do'so. In addition, ‘for only those pro grams in existence at the time of the enactment, the BOP can determine whether or not to give time credits. On the other hand, the BOP cannot because of 3632(d)(4)(B) givetime □ □ credits if prisoners had completed such pro grams before the date of enactment. — . □□

Those two sections only deal with programs in effect before and: at the time of enactment of the First Step Act.

(n)(4) should not and canniot be read by its “may” language to. □ broadly applied to say that the BOP has discretion to not allow time credits either accrued after enactment of FSA to January 1 5, 2022 or at any time after that. If the § 3621(h)(4) was interpreted □ as is urged, it would mean that after January 15, 2022 the BOP could refuse to honor time credits. . a reading of the First Step Act is contrary to the mandatory language of the Act such as

(d)(4)(A) which provides that a prisoner “shall earn time oredits as follows...” □□□ ~US.C. § 3632(d)(4)(C) which provides that time credits ‘“‘shall be applied toward time in prison custody or supervised release...” . □

_. If, for example, a prisoner at the time of enactment was in a recidivism reduction program at the time of. enactment of the FSA, but had not completed the program, then. upon successful □ completion, the BOP would have the discretion as granted by. Congress in § 3621(h)(4) to determine whether or not the prisoner would get time credit for that completion. :

Further, § 3621(h)(4) makes no mention of J anuary 15, 2022. It doesnot even infer that time □ credits earned after enactment cannot or need not be credited before January 15, 2022. Instead, no □

exception to allowing time credits under the FSA is made to the mandates in § 3632(d)(4)(A) and § 3632(d)(4)(C) other than the prohibition in § 3632(d)(4)(B) to allowing time credits for programs completed before enactment.

Many of the time credits claimed by Petitioner O’Bryan are for programs successfully completed before FSA enactment. Those claims fail due to 18 U:S.C. § 3632(d)(4)(B). □

The BOP acknowledges that O'Bryan has now successfully completed a college degree program on or about August 9, 2021. As a result, he will receive another 12.5 days of time credit.

. for a total of 43.75 days of time credit under the First Step Act. oo

(d)(4)(A) provides: "A prisoner, except for an ineligible prisoner □□□□□ subparagraph (D), who successfully completes evidence-based recidivism reduction programming ‘or productive activities, shall earn time credits as follows:" (emphasis added). Subparagraph (D)

contains an extensive list of offenses which disqualify offenders from time credits. Roughly halfof - the BOP population is ineligible for time credits because of their offense of conviction. Julie □ Samuels, Emily Tiry, Implementation of the First Step Act: The Riskand Needs Assessment, URBAN INSTITUTE at 3 (July 6, 2021), www.urban.org.

In addition,

(d)(4)(C) provides: oe Time credits earned under- this paragraph by prisoners who successfully participate □ _ in recidivism reduction programs or productive activities shall be applied toward □ □ time in prerelease custody or supervised release. ‘The Director of the Bureau of . Prisons shall transfer eligible prisoners, as determined under section 3624(g), into - . prerelease custody or supervised release (emphasis added). . Mandatory words such as "shall" impose a duty and permissive words such.as "may" grant discretion, the mandatory/permissive canon of statutory construction. ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 112 (2012).

Tn considering whether an agency's interpretation of a statute gets deference under Chevron, U.S.A., Inc. v. Nat. Res. Def: Council, Inc.,

(1984), the court is guided by: Where a court reviews an agency's construction of the statute which it administers, □ □ it is confronted with two questions. First, applying the ordinary tools of statutory □□ construction, the court must determine whether Congress has directly spoken to the precise question at issue. 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. = . . □□ Mayo Clinic v. U.S.,

(8th Cir. 2021)(quoting City of Arlington v. FCC, 569U.S. 296,

,

(2013)).

_. Inthe FSA, Congress used mandatory words and permissive words. The intent of Congress was clear in each instance. Accordingly, no deference is to be accorded to the BOP position that it need do nothing with accrued time credits under the FSA until J anuary 15,2022. .

Where as here the intent of Congress is clear, there is no need to go to Chevronstep two and among other things, consult legislative history. If the legislative history of the FSA were consulted, □ _ it would only confirm what Congress clearly expressed in the text of the FSA. See Goodman v. Ortiz,

613 (DNJ . 2020). The BOP is supposed to now get on with applying the FSA to prisoners; with the short-timers to. get preference in the phase-in of the FSA. 18 . U.S.C. | § 3621(h)(3) "Priority during phase-in during the 2-year period described in paragraph (2)(A), priority for such programs and activities shall be accorded based on a prisoner’ proximity to release date." Not only are the short-timers such as O'Bryan to get priority for getting into the programs and -

activities, but if they successfully complete the programs or activities, they are entitled to the time credits eamed.

(d)(4) provides: (4). Time credits.-- oe no (A) In’ general.--A prisoner, except ‘for an ineligible prisoner under . subparagraph (D), whosuccessfully completes evidence-based recidivism reduction’ programming or productive activities, shall earn time credits as follows: (emphasis ~ added). oe Petitioner has an early release date of February 23, 2022, via good conduct time release,

Be ee

With the BOP position of no FSA time credits being applied before January 15, 2022, that means □ the BOP will not honor or apply a portion of the 43.75 days of credit Petitioner is entitled to under the First Step Act. .

There are general complaints about other applications of the FSA by the BOP. O’Bryan has successfully completed a post-secondary Associate’s degree through Mount Marty University, which □ results in 200 EBRR (evidence-based recidivism reduction) programming hours, and he has □□□ EBRR pro gramming hours from successful completion of the RDAP program, whichisanextensive drug treatment pro gram. Those 700 EBRR programming hours result in 43.75 days of time credit under the First Step Act. Whether or not that is appropriate credit is not before the court so the court applies the credits as calculated by the BOP.

Petitioner is entitled to receive all of his 43.75 days of credit to move back his current February 23, 2022 release date: Whether those time credits are applied. for pre-release custody or . transfer to supervised release is by statute within the discretion of the Bureau of Prisons. 18U.S.C. § 3632(d)(4)(C);

(g). Accordingly, -

IT IS ORDERED:

1. The Report and Recommendation is not adopted. Petitioner’s objections to the Report and Recommendation are granted only to the extent set forth ~ above. .

The Respondent’s Motion to Dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted, Doc. 14, is □

- 3, The Petition pursuant to

, Doc. 1, is granted to the extent set © □ forthabove. . □

Dated this [ “day of September, 2021. BY THE COURT: L. Piersol ATTEST: United States District Court MATTHEW W. THELEN, CLERK