LISA Newsletter for November 2, 2026 – It’s Now November… and Nothing’s Happening
LISA publishes a free newsletter intended for inmate subscribers in the Federal system and interested readers in the outside world.
Edited by Thomas L Root, MA JD
Vol 12, No 42
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Nothing New on November 1
SCOTUS FSA Habeas Case Gets Argued Today
No Riz for Rizo
London Calling, But Not on a Cellphone
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NOTHING NEW ON NOVEMBER 1
Nov 1 is a date with almost mythical status among federal prisoners, the day – according to rumor – that all sorts of new laws become effective, the front gates swing open, and everyone goes home.
The only magic of Nov 1 is that it’s the date on which Guideline amendments become effective. The 2026 Amendments – which change 2B1.1 loss tables, pumps up fentanyl punishment, and simplify multiple count adjustments – ARE NOT RETROACTIVE. This means that even if one of the few changes would benefit your Guidelines score, if you’re already sentenced, there’s no going back.
Oh, yeah. There are no changes on the methamphetamine laws or guidelines, either.
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SCOTUS FSA HABEAS CASE GETS ARGUED TODAY
Maxwell v Dinis, perhaps the most important post-conviction case of this Supreme Court term, will be argued today (Nov 2). Maxwell considers a federal inmate’s ability to use the habeas statute, 28 USC 2241, to contest the Federal Bureau of Prisons’ placement decisions under the First Step Act, in this case, a refusal to accelerate the inmate’s transfer to a halfway house or home confinement due to earned time credits under 18 USC 3632.
The FSA lets prisoners earn time credits for completing programming that reduces recidivism. An inmate’s first 365 credits reduce his sentence by up to a year. Any leftover credits are applied to extra time in a halfway house or home confinement (pre-release custody).
Pre-release custody is still BOP custody. Thus, it is distinct from supervised release, a separate portion of the sentence that begins after BOP custody ends.
Max Maxwell has been serving a white-collar sentence of 20 years, during which he earned a ton of FSA credits. But the BOP shorted him about 42 months, he said, so he filed a habeas corpus petition under 28 USC 2241, seeking a court order that he be given his extra credits.
The District Court dismissed the petition. The 5th Circuit affirmed, holding that all Max was asking for was designation to pre-release custody, and the Circuit has a bright-line rule that 2241 habeas is unavailable unless the requested relief would entitle the inmate to quicker release from BOP custody.
Supreme Court precedent leaves it unclear whether a federal inmate can use habeas to challenge conditions of her confinement, such as placement in solitary or a supermax facility. When state inmates have brought such claims, the court has said that they may raise those only under 42 USC 1983, not habeas. That statute lets people challenge the constitutionality of actions by state and local officials, but not federal officials.
However, in the 2023 Jones v Hendrix decision, the Supreme Court held that habeas remains available for a federal prisoner to challenge “the legality of his detention” without attacking “the validity of his sentence.” Max argues that what he is doing – contesting the BOP’s refusal to apply FSA time credits to accelerate his transfer to pre-release custody – can be described as challenging the legality of his detention inside a low-security prison instead of the community.
Max also points out that if he can’t use a 28 USC 2241 habeas petition, he has no other alternative. SCOTUS has severely limited plaintiffs’ abilities to bring a civil-rights suit under Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics, and federal law has no analog statute to 42 USC 1983 permitting similar suits against federal. Even the Administrative Procedure Act (5 USC 551) is unavailable because 18 USC 3625 makes it inapplicable to most BOP matters.
The government agrees with Max that he should be allowed to use a 2241 habeas action to challenge the BOP denial of FSA credits for pre-release custody, although it clearly does not think the use of habeas should be as expansive as Max does. Because the government has taken Max’s position, more or less, the Supremes appointed a lawyer to argue that the 5th Circuit is right. (This is usual practice at SCOTUS, intended to be sure all sides of the issue are aired).
The lawyer supporting the 5th Circuit’s standard argues that habeas relief should only be available if the inmate’s claim implies that actual physical detention must be shortened, if she is entitled to earlier release on bail or parole; or if the sentencing court ordered the prisoner to serve a sentence in a place it lacked jurisdiction to send her.
SCOTUSBlog said, “It is unclear whether the justices will find the amicus’ proposed circumstances appealing. But the amicus’s sustained attacks on the difficulties in applying Maxwell’s and the government’s position may well attract their interest.” Regardless, the first post-Jones review of 2241’s parameters should either greatly benefit inmates or be the death knell for classic habeas.
The case comes at a good time. A report from the Government Accountability Office last January found that the BOP has not given inmates all of the pre-release custody they have earned in the eight years since First Step’s passage. GAO cites a lack of accurate data on program participants and whether they are released from custody when eligible.
In an interview with Spectrum News last week, BOP Director William Marshall and Special Assistant Rick Stover acknowledged that implementing the law has not been easy. “Everybody knew the spirit of it was to help the inmates with good behavior to get out early… but they didn’t really understand how to get there.”
Trevor Parkes, project director for the First Step Act Resource Center at the National Association of Criminal Defense Lawyers, said, “The problem is the Bureau of Prisons does not have enough capacity for all these people to be put in halfway houses or home confinement. And so right now, some of the people who should be released under the program are not. They’re still stuck in prison.”
There are currently 154 halfway houses in the US, not nearly enough to meet the demand. In some states, like Texas, for instance, the number of available halfway house beds could only accommodate 11 pct of the federal inmates released into the state last year. Stover said the BOP is in the solicitation process to open more halfway houses and expand opportunities for home confinement, but finding locations can be challenging and costly, “{b]ut the reality is the director can’t control this. I can’t control this. Nobody within the BOP can control this.”
The BOP says it hopes to have more RRC spots available by late 2027. In the meantime, Parkes says the limited capacity is not a reason to keep inmates in prison. FSA itself says that a lack of capacity is not an excuse not to transfer people, and it directed the BOP to start expanding RRC space 8 years ago… So Congress saw this coming, and they wanted it to be headed off, and it has not,” he said.
In September, the BOP announced formation of a department dedicated to FSA implementation.
Last week, Marshall told Spectrum News, “We now have a First Step Act department, which will be 15 individuals that will be working countrywide with the case managers and so forth to make sure that the credits are applied properly, make sure the programming is there, make sure that we can eliminate some of these wait lists of these individuals that are on them.”
SCOTUSBlog.com, Court to consider federal inmate’s ability to use habeas to accelerate transfer to a halfway house or home confinement (Oct 28)
Spectrum News, The First Step Act promised criminal justice reform. Has it delivered? (Oct 29)
GAO, Federal Prisons: Improvements Needed to the System Used to Assess and Mitigate Incarcerated People’s Recidivism Risk, GAO-26-107268 (Jan 27, 2026)
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NO RIZ FOR RIZO
Abel Rizo, who was doing 468 months for a conspiracy to rob drug dealers since 1997, had multiple 18 USC 924(c) convictions, with the second one adding 240 months to the sentence.
The original sentence included concurrent 168-month terms for his drug convictions and concurrent 60-month terms for the Hobbs Act offenses. His firearm convictions added consecutive terms of 60 months and 240 months, for an aggregate sentence of 468 months.
The 2018 First Step Act changed the treatment of multiple 924(c) convictions obtained in one prosecution so that the second or subsequent counts in the same case carried the same minimums as the first one. Abel filed a motion for compassionate release under 18 USC 3582(c)(1)(A), arguing that he would have received only 60 months for the second 924, making his sentence disparately long under compassionate release Guideline 1B1.13(b)(6).
The district court agreed. It found that Rizo had served more than ten years and that the 15-year difference on the second firearm count constituted a gross disparity. It also found that he was no longer dangerous and that the factors in 18 USC 3553(a) favored cutting his aggregate sentence to 288 months. Rizo was released on Dec 6, 2024.
The government appealed, arguing that 1B1.13(b)(6) was beyond the Sentencing Commission’s authority to adopt. While the appeal was pending, the Supreme Court decided Rutherford v US, which held that 1B1.13(b)(6) was unlawful (the same position the government had raised in its appeal of Abel’s release).
The 11th Circuit held that it could hear the government’s appeal because the sentence-reduction order was final and the government presented a cognizable claim that the reduced sentence violated federal law. On the merits, the court applied the Supreme Court’s intervening Rutherford decision to reverse the sentence reduction grant.
The District Court’s favorable findings that Abel was not dangerous and the § 3553(a) factors could not cure the loss of a legally permissible extraordinary and compelling reason. The dangerousness and sentencing factor considerations are basic requirements for a compassionate release, but no matter how favorable they may be to a defendant, they do not make up for the failure of the threshold statutory condition that an extraordinary and compelling reason exist for compassionate release.
The 11th did not need to reassess Rizo’s rehabilitation, weigh the seriousness of his offenses, or decide whether fifteen years was a sufficiently substantial disparity. Rutherford had already made the disparity basis of 1B1.13(b)(6) legally unavailable. The size of the disparity could not change that conclusion.
So two decades after his offense and two years at home, it looks like Abel is going back to prison for another 15 years. No riz in that outcome…
US v Rizo, Case No 24-11349, 2026 USAppLEXIS 32775 (11th Cir. Oct 27, 2026)
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LONDON CALLING, BUT NOT ON A CELLPHONE
London may be calling, as The Clash told us in its classic punk album nearly a half century ago, but if the government has its way, no one inside with a cellphone will be doing the same.
The BOP has for years wanted to use jammers to shut down the use of cellphones inside federal prisons. The Federal Communications Commission prohibited anyone – even other federal agencies – from using any transmitter intended only jam other devices.
That may be changing. FCC Chairman Brendan Carr announced last Wednesday that the FCC will vote Nov 19 on final rules that would allow prisons to jam contraband cellphones. Carr said the rules would allow, but not require, state and local correctional facilities to use cellphone jamming technology to combat contraband devices.
Once the rule change is in place, “corrections officials can apply to the FCC, outline how they’re going to do their jamming,” Carr said. “They’ll get approval from the agency and they’ll be able to get going.” Institutions will have to prove that their decision will not create harmful interference outside designated geographic areas.
KATV, FCC Chairman Brendan Carr joins Tim Griffin to announce vote on jamming prison cellphones (Oct 28, 2026)
Arkansas Advocate, FCC moving forward on rule to allow prison cellphone jamming (October 28, 2026)
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