United States Court of Appeals For the First Circuit

No. 22-1945

SUZANNE M. BROWN,

Petitioner, Appellant,

v.

MICHAEL J. PENDERS, Chief U.S. Probation Officer for the District of Maine; BUREAU OF PRISONS, NORTHEAST RESIDENTIAL REENTRY MANAGEMENT,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Kayatta, Lynch, and Montecalvo, Circuit Judges.

Inga L. Parsons, by appointment of the Court, for appellant. Trevor Haruo Taniguchi, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, was on brief, for appellee Bureau of Prisons, Northeast Residential Reentry Management.

May 17, 2024 LYNCH, Circuit Judge. Suzanne Brown appeals from the

November 23, 2022, denial of her petition for habeas corpus. Brown

v. Rieger, No. 22-cv-00259,

(D. Me. Nov. 23,

2022). As Brown has been released from confinement since she filed

this appeal, Brown now concedes that certain of her original claims

no longer provide any avenue for relief and that she does have an

alternate mechanism to seek relief under

. She

now argues only that her term of supervised release began on the

date the Bureau of Prisons ("BOP") transferred her to home

confinement and should be measured from that date.

We affirm the denial of habeas relief.

I. Background

Brown's petition originally argued that the BOP had both

failed to accurately calculate and then to apply time credits to

which she argues she was entitled under the First Step Act of 2018

("FSA"),

Stat. 5194 (codified in scattered

sections of 18, 21, 34, and 42 U.S.C.).1 Brown concedes that her

original request to be released from imprisonment is now moot.

She also concedes that under controlling precedent other relief

Under the FSA federal prisoners can earn up to fifteen days 1

of time credit per month by participating in "evidence-based recidivism reduction programming ["EBRR"] or productive activities."

(d)(4)(A). Such time credits "shall be applied toward time in prerelease custody or supervised release."

§ 3632(d)(4)(C).

- 2 - requests originally made are no longer viable. We state only those

facts pertinent to our holding.

In January 2017 Brown was convicted after a jury trial

on twelve counts of making a materially false statement to a

federal agency in violation of

(a)(2). Brown was

sentenced to twelve months of imprisonment and a two-year term of

supervised release. This court affirmed her convictions. See

United States v. Brown,

(1st Cir. 2019).

She did not challenge her sentence on appeal. See generally

Brown began her term of imprisonment on January 3, 2022,

with release scheduled for January 1, 2023 (assuming full time

served less credit for one day of incarceration in March of 2016).

In March 2022, BOP calculated that Brown had earned fifteen FSA

credits, which it applied to accelerate her release date to

December 17, 2022.

On August 2, 2022, BOP transferred Brown to home

confinement pursuant to the emergency measures of the CARES Act,

(b)(2),

, 516 (2020),

still with a calculated release date of December 17, 2022. In an

August 8, 2022, email to BOP personnel, Brown contested her FSA

credit calculation and projected release date. BOP declined to

make any changes.

On August 24, 2022, Brown filed this petition for habeas

corpus in the U.S. District Court for the District of Maine,

- 3 - arguing that she had earned enough FSA credits to qualify for

release on September 2, 2022, and that BOP's decision not to

correct her FSA credit calculation and apply FSA credits to

accelerate her release would result in her being held unlawfully

in custody.

On November 18, 2022, a magistrate judge recommended

that Brown's petition for habeas corpus be denied. The district

court adopted that recommendation and denied the petition on

November 23, 2022.

Brown timely appealed on December 1, 2022. On December

17, 2022, Brown was released from home confinement as planned.

II. Analysis

"We review the denial of a habeas petition de novo," and

may affirm "for any reason apparent in the record." Francis v.

Maloney,

(1st Cir. 2015).

At oral argument on May 6, 2024, Brown correctly conceded

that controlling precedent forecloses some of the relief she sought

earlier. She now asks only that we hold her term of supervised

release began on August 2, 2022, when she was transferred to home

confinement.

We could not backdate the start of Brown's supervised

release to account for a period of overincarceration even if we

concluded such overincarceration occurred (an issue we do not

reach). This is because, as the Supreme Court held in United

- 4 - States v. Johnson,

(e) states that "[t]he term of

supervised release commences on the day the person is released

from imprisonment,"

(2000), and "by its own

necessary operation[] does not reduce the length of a supervised

release term by reason of excess time served in prison,"

.

Instead Brown argues that "'[h]ome' is not

imprisonment," and from this she attempts to further argue that

she necessarily was released from imprisonment and began her term

of supervised release under Johnson on August 2, 2022, when BOP

transferred her to home confinement. Brown's position is

foreclosed by the text of the statute under which BOP exercises

custody over federal prisoners. Under

(a), "[a]

person who has been sentenced to a term of imprisonment . . . shall

be committed to the custody of the [BOP] until the expiration of

the term imposed, or until earlier released for satisfactory

behavior pursuant to the provisions of section 3624." That custody

did not end when the BOP placed Brown on home confinement.2

2Brown incorrectly argues that according to "the BOP's brief it appears that the BOP relinquished custody to the probation department . . . on August 2, 2022, the transfer of which custody[] legally triggered the commencement of Ms. Brown's supervised release." In fact the BOP's brief states that "Brown was transferred to home confinement under the supervision of the District of Maine Probation Office." (Emphasis added.) Brown does not identify any source of legal authority under which BOP could have released Brown from a court-ordered sentence placing her into its custody more than four months early.

- 5 - Although the BOP's authority to transfer inmates to home

confinement is codified at

, the statute referenced

in § 3621(a) as governing early release, the home confinement

elements of § 3624 pertain only to "[p]rerelease [c]ustody."

(c), (g) (emphasis added). That authority is

distinct from the "release[] for satisfactory behavior" provisions

§ 3621(a) refers to, which exist at § 3624(b). The home

confinement to which Brown was transferred was a form of BOP

custody -- that is, imprisonment under § 3621(a) -- and her term

of supervised release could not begin under Johnson until the BOP

released her from that custody.3

The district court's denial of Brown's habeas corpus

petition is affirmed. We express no view as to whether Brown could

receive relief under other procedural mechanisms, such as

. The appellees' pending motion to amend the caption in

this case is denied as moot.

3Brown cites a DOJ Office of Legal Counsel memorandum for the proposition that BOP does not have the authority to place individuals in its custody in home confinement, attempting to infer from that memorandum that BOP custody over Brown must have ceased when she was placed on home confinement. While that document did conclude that the BOP lacks the authority to place inmates in home confinement under the general placement authority of

(a) and (b), more to the point it also concluded that the BOP possesses the authority to place inmates in its custody in home confinement pursuant to other specific statutory authority to do so, such as § 3624(c)(2). See generally Home Confinement of Fed. Prisoners After the Covid-19 Emergency,

(O.L.C. Jan. 15, 2021).

- 6 -