Background
Dennis Michael Hogan, a federal prisoner sentenced to 180 months for enticement of a minor, spent approximately ten months in post-sentencing detention before arriving at his designated Bureau of Prisons facility, FCI La Tuna, on June 28, 2021. After exhausting administrative remedies, he filed a pro se petition under 28 U.S.C. § 2241 seeking First Step Act time credits for the 308 days between sentencing and his arrival at FCI La Tuna.
Hogan argued that his sentence began when he entered post-sentencing custody and that a BOP regulation improperly delayed his eligibility to earn credits until he reached his designated facility. He also sought credits under an asserted interim BOP procedure, immediate referral for home confinement or residential reentry-center placement, and relief based on 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 ties the start of credit earning to arrival or voluntary surrender at the designated BOP facility, conflicts with the First Step Act. It held that Hogan’s claim failed on a narrower ground: he did not substantiate any actual participation in evidence-based recidivism-reduction programming or productive activities during the disputed period. Because actual participation is a necessary predicate to earning credits under 18 U.S.C. § 3632(d)(4)(A), Hogan was not entitled to credits for those 308 days.
The court also rejected Hogan’s asserted entitlement to a “windfall” of credits because his supporting exhibit was presented for the first time on appeal and was outside the district court’s summary-judgment record. It further held that only the BOP may designate a prisoner’s place of incarceration and that such a designation is not judicially reviewable. Hogan’s conclusory allegation of judicial bias did not establish plain error, particularly because he had not sought recusal in the district court.
Judge Graves dissented. He would have vacated the judgment and remanded, reasoning that the BOP’s failure to assess Hogan and make qualifying programming available could not fairly be used to defeat his claim for lack of participation. The dissent also concluded that factual disputes concerning when Hogan’s sentence commenced and whether programming was available precluded summary judgment.
Key Takeaways
- First Step Act time credits require actual participation in qualifying recidivism-reduction programming or productive activities; detention alone does not earn credits.
- The Fifth Circuit did not decide whether the BOP may categorically delay credit-earning eligibility until a prisoner arrives at a designated facility.
- Courts cannot order a particular BOP placement, and evidence introduced for the first time on appeal cannot supplement the summary-judgment record.
Why It Matters
The decision resolves Hogan’s claim without answering the broader statutory question whether the BOP’s designated-facility rule conflicts with the First Step Act. For prisoners seeking credits for pre-designation detention, the majority’s reasoning makes proof of actual participation in qualifying programming or activities essential.
The dissent highlights an unresolved tension: a prisoner may be unable to participate until the BOP conducts an assessment and provides programming, yet the lack of participation may defeat a claim for credits. That issue remains open in the Fifth Circuit because the majority expressly declined to rule on the regulation’s validity.