between the mistake and the attempted correction; whether the defendant contributed to the mistake; the reasonableness of defendant's intervening expectations; the prejudice resulting from the change; and the government's diligence in seeking the change. See 6 F.3d at 35. Here, while BOP was undoubtedly diligent in correcting the mistake once DOJ ordered it to do so, the Bureau's misguided policy was in effect without interruption for over fifteen years. Moreover, the government did not uncover its error until petitioner had served nearly half her sentence. Petitioner did not contribute in any way toward the mistake, which was entirely the government's own doing. Given the consistency of BOP's previous understanding, petitioner's expectations that she would remain the halfway house were certainly reasonable, and as is explained in greater detail below, the prejudice that would be wrought by a change in her confinement at this time is severe. Thus, under the factors identified in DeWitt, petitioner presents a significant due process challenge to her impending transfer.
The constitutional analysis set out in Davis v. Moore is instructive as well. There, the D.C. Court of Appeals rejected a constitutional challenge brought by a group of D.C. inmates who had been reimprisoned following revocation of their parole. These inmates had seen their sentences recomputed to eliminate credit for "street time" (the time served on a sentence by an individual released from prison on parole), even though at the time of sentencing a D.C. Department of Corrections' regulation gave inmates such credit. This regulation, however, was subsequently invalidated by the D.C. Court of Appeals. See U.S. Parole Comm'n v. Noble, 693 A.2d 1084 (D.C. 1997). In Davis, the Court held that the retroactive recomputation based on Noble did not violate the Due Process Clause because the old regulation on which the inmates had relied was simply wrong, as was the advice they had received from D.C. officials pursuant to that regulation. See 772 A.2d at 219-20.
That case, however, differed from the present one in several important ways that actually reinforce petitioner's due process argument. In reaching its conclusion, the Davis court suggested that a prisoner's expectation about his sentence that is induced by "the mistaken representations of officials does not without more" give rise to a due process claim. Id. at 219 (emphasis added). Here, however, there is "more." What was missing in Davis that is present in this case is that the mistake did not only engender petitioner's false expectations, but actually affected the Court's sentencing decision in a material way. The Court did not have merely a hope or expectation that petitioner would serve her sentence in a halfway house, an expectation that has been undercut by the new policy. Cf. United States v. Addonizio, 442 U.S. 178, 190 (1979) (holding that in the absence of a constitutional violation, a § 2255 motion cannot be based on a Parole Board decision that frustrates the expectations of the sentencing judge).*fn7 Instead, in deciding what sentence to impose, the Court relied on years of consistent practice, as well as representations that BOP would honor the Court's placement recommendation. As such, the harm that petitioner faces if BOP's policy is retroactively applied to her is not merely (as it was in Davis) that of having her artificially "elevated hopes" of doing her time in a CCC dashed.*fn8 Lerner, 751 F.2d at 459. Instead, she is now facing a very real and very tangible prejudice: the subversion of her ability to have the Court impose sentence at a time when the government is accurately representing the authority of the BOP to effectuate the Court's sentence.
Indeed, had the Court at the time of sentencing been advised of BOP's newfound position that a Zone C offender cannot serve her full sentence in a halfway house, petitioner's resulting sentence would undoubtedly have been different. See Davis, 772 A.2d at 221 n. 13 (noting that a defendant might be able to show actual prejudice for purpose of a due process claim if there were evidence that the trial judge could have sentenced differently had the judge been aware of the interpretive change that the government subsequently announced). As described above, the Court's paramount concern in this case was to ensure that in serving her sentence, the positive trends in petitioner's life — her work, her community activities, her therapy — would be uninterrupted to the greatest extent possible. The Court believed then, and it continues to believe now, that this goal is incompatible with incarceration.
Accordingly, if the Court had been so prescient as to know that DOJ would require BOP to send Zone C offenders to prison, the Court would have looked quite differently at petitioner's two-level departure request, which would have dropped her into Zone B, thereby avoiding the mandatory imprisonment requirement of USSG § 5C1.1(d). Certainly, there were ample grounds for such a departure, given defendant's post-offense rehabilitation efforts, the effect of her debilitating psychological condition on her commission of the underlying offense, and the demonstrated need for community confinement for purposes of treatment. See Def.'s Mot. for Downward Departure at 5-11; Application Note 6 to § 5C1.1;*fn9 In re Sealed Case, 293 F.3d 913, 917 (D.C. Cir. 2002). Had the government come forward then with the interpretation of the law that it now believes proper, the Court would have sentenced differently. Thus, if petitioner is to be sent to prison now, that misfortune would fall upon her only because the government discovered its error neither in time to help nor too late to hurt. In effect, then, the government seeks to reap the benefit of both the interpretive error (which induced the Court into entering the sentence that it did) and the correction of that error (on which BOP relies to transfer petitioner to prison). Such a result is, in this Court's view, fundamentally unfair and incompatible with due process.
Contrary to the government's argument, this is not merely a case of "frustrated expectations." (Oral Argument Tr., 1/21/03, at 49.) Rather, this is a case in which the government's long-standing interpretation and application of the law — as well as its specific representations regarding this petitioner's eligibility for halfway house placement — affirmatively misled the Court into imposing a particular sentence. As such, it is a case in which the ex post error correction that the government seeks to apply to petitioner threatens to upset not merely her subjective expectations, but to leave her in a substantially worse position than she would have been in had the government not erred in the first place. Thus, the suggestion of actual prejudice resulting from the mistake, which was merely an unsupported assertion in Davis, 772 A.2d at 221, is a reality in this case. See Lerner, 751 F.2d at 459 (due process violation based on belated correction of official mistake requires "tangible prejudice," not merely psychological harm).*fn10 Given these unique circumstances, the Court concludes that BOP is estopped from relying on its new policy directive to remove petitioner from the halfway house. For the government to imprison petitioner merely because BOP was misguided about the scope of its authority and this misinterpretation was fostered and shared by both the Executive and Judicial branches for more than fifteen years is simply arbitrary and unfair.*fn11
For the reasons set forth above, the Court holds that the Bureau of Prisons is estopped from applying its newly-announced policy regarding the placement of Zone C offenders to transfer Shawna Culter from the CCC in which she currently resides to a federal prison. To do so under the unique circumstances presented here cannot be squared with fundamental notions of due process. Insofar as the old policy was truly illegal and the new policy was necessary to bring BOP into compliance with the Sentencing Guidelines, applying this unexpected and unforeseeable change would, in light of the Court's reasonable and government-induced reliance on the old policy, violate the Due Process Clause.
For the reasons set forth in the attached Memorandum Opinion, it is hereby
ORDERED that petitioner's motion to Vacate, Set Aside, or Correct Sentence is GRANTED IN PART; and it is
FURTHER ORDERED that the Bureau of Prisons is enjoined from transferring Shawna Culter from the Fairview Community Confinement Center pursuant to the new inmate designation policy described in the December 16, 2002 Memorandum from Deputy Attorney General Larry Thompson to BOP Director Kathleen Hawk Sawyer.
It is so ordered.