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. After spending approximately ten months at several facilities, he arrived at his designated Bureau of Prisons facility, FCI La Tuna, on June 28, 2021.
After exhausting administrative remedies, Hogan filed a pro se habeas 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 the BOP improperly denied him the opportunity to earn credits during that period. He also claimed entitlement to additional credits under an asserted interim procedure, requested placement in home confinement or a residential reentry center, 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 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 for the disputed period because he did not establish that he actually participated in and successfully completed qualifying evidence-based recidivism reduction programs or productive activities. The statute awards credits for successful participation, and Hogan acknowledged that programming was unavailable during the relevant period.
The court also refused to consider evidence of BOP assessment dates that Hogan submitted for the first time on appeal, held that decisions concerning home confinement or residential reentry placement belong to the BOP and are not judicially reviewable, and rejected Hogan’s conclusory bias allegation under plain-error review. Judge Graves dissented, reasoning that factual disputes concerning when Hogan’s sentence began and whether the BOP itself prevented him from participating in programming should have precluded summary judgment.
Key Takeaways
- First Step Act time credits require actual successful participation in qualifying recidivism-reduction programming or productive activities.
- The Fifth Circuit left unresolved whether the BOP may categorically delay a prisoner’s eligibility to earn credits until arrival at the designated BOP facility.
- A court cannot order a particular place of federal confinement, and evidence outside the district court’s summary-judgment record generally cannot be added on appeal.
Why It Matters
The decision makes proof of actual qualifying participation dispositive in First Step Act credit disputes within the Fifth Circuit, even where a prisoner argues that the BOP wrongfully failed to provide programming. Prisoners do not earn credits merely because their sentence has begun or because qualifying opportunities allegedly should have been available.
At the same time, the panel did not resolve the broader statutory challenge to the BOP regulation tying credit accrual to arrival at a designated facility. Judge Graves’s dissent underscores the continuing dispute over whether the BOP may defeat a credit claim by withholding the assessment and programming necessary for participation.