raised as defenses Defendant's alleged failure to exhaust administrative remedies and a change in the Bureau of Prisons' ("BOP") policy on this issue.[1] On March 7, 2005, the Court issued an Order requiring the United States to submit an affidavit from a duly qualified affiant regarding Paige's exhaustion of administrative remedies and allowing Paige to reply to Defendant's Answer with regard to the change in the BOP's policy. The parties now having submitted their respective filings, this matter is now ready for decision.
I. Paige's Allegations
Paige's supervised release was revoked on November 30, 2004. He was sentenced to nine months' imprisonment, and the Court strongly recommended placement at the pre-release center in Butte, Montana. (Docket No. 18-Judgment at p. 2). Paige asserted at the revocation hearing that the Bureauof Prisons might not follow the Court's recommendation. (Docket No. 19-Defendant's Motion at p. 6, ¶ 13).
Paige now argues that a policy implemented by the Bureau of Prisons in 2002 precludes his placement at a pre-release center. (Docket No. 19-Motion at p. 5, ¶ 12A). He asserts that the Bureau's interpretation of the governing statutory scheme is "unlawful" and thwarts this Court's intended sentence. In support of his motion, he presents two memoranda. One is written on Bureau of Prisons letterhead, directed to "Chief Executive Officers" and dated December 20, 2002. The other is a memorandum on the letterhead of the Department of Justice's Office of Legal Counsel, is signed by M. Edward Whelan III, Principal Deputy Assistant Attorney General, is directed to Larry D. Thompson, Deputy Attorney