Reported / Citable
Background
Dennis Michael Hogan pleaded guilty to enticement of a minor and was sentenced to 180 months in prison on August 26, 2020. He remained at several facilities before arriving at his designated Bureau of Prisons facility, FCI La Tuna, on June 28, 2021.
After exhausting administrative remedies, Hogan filed a pro se petition under 28 U.S.C. § 2241. He sought First Step Act time credits for the 308 days between sentencing and his arrival at FCI La Tuna, arguing that his sentence had already commenced and that the BOP wrongfully denied him opportunities to earn credits. He also sought immediate prerelease placement and alleged judicial bias. The district court granted summary judgment to the BOP and dismissed the petition.
The Court’s Holding
The Fifth Circuit affirmed. The majority declined to decide whether 28 C.F.R. § 523.42(a), which generally begins credit accrual upon arrival at a designated BOP facility, conflicts with the First Step Act. Instead, it held that Hogan could not receive credits because he neither alleged nor substantiated actual or attempted participation in an evidence-based recidivism-reduction program or productive activity during the disputed period. Successful participation is a statutory prerequisite to earning credits, and Hogan’s assertion that COVID-19 restrictions shut down programming confirmed that he did not participate.
The court also refused to consider new appellate evidence offered to support Hogan’s claim for a “windfall” of credits under an alleged interim BOP procedure. It held that courts lack authority to order a particular place of incarceration, including home confinement or a residential reentry center, because placement decisions belong to the BOP and are statutorily unreviewable. Hogan’s conclusory bias allegation did not establish plain error. Judge Graves dissented, reasoning that genuine factual disputes remained over whether the BOP itself prevented Hogan from participating by delaying his assessment and programming.
Key Takeaways
- A federal prisoner seeking First Step Act time credits must substantiate qualifying participation, or at least attempted participation, in an eligible program or productive activity.
- The Fifth Circuit left unresolved whether the BOP may categorically delay credit-earning eligibility until a prisoner reaches the designated facility.
- A district court cannot direct the BOP to place a prisoner in home confinement or a residential reentry center.
Why It Matters
The decision allows courts in the Fifth Circuit to reject claims for pre-designation First Step Act credits when the prisoner cannot show participation or attempted participation, without deciding whether the BOP’s designated-facility regulation is valid.
The dissent highlights a continuing dispute over prisoners whom the BOP allegedly prevented from participating before designation: whether the agency may rely on the absence of participation that its own assessment and programming practices purportedly caused.