Ngon v. Warden

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KHIN PHOO NGON, No. 97102-007,
Petitioner,
v.
WARDEN FCI-GREENVILLE,
Respondent.
Case No. 25-cv-1386-JPG
MEMORANDUM AND ORDER
This matter comes before the Court on petitioner Khin Phoo Ngon’s petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 1). When she filed her petition, the petitioner
was incarcerated at the Federal Prison Camp at Greenville, Illinois (“FPC-Greenville”), where the
respondent is the warden. The petitioner is challenging the computation of her sentence, including
whether the Bureau of Prisons (“BOP”) has properly calculated time credits under the First Step Act
of 2018 (“FSA”). The respondent has responded to Ngon’s petition (Doc. 24). Ngon has not
replied to that response.
I. Background
On July 17, 2024, Ngon was sentenced in the United States District Court for the Eastern
District of Virginia to serve 26 months in prison on one count of health care fraud in violation of 18
U.S.C. § 1347. United States v. Ngon, No. 1:24-cr-62 (E.D. Va.). She was then remanded to the
custody of the United States Marshals Service (“USMS”) for transportation to her sentencing in
another case. Several weeks later, on August 9, 2024, Ngon was sentenced in the Superior Court of
the District of Columbia to serve 23 months for two counts of fraud, two counts of theft, and two
counts of identity theft, all counts to run concurrently with each other “but consecutively with any
other sentences outside of this case.” United States v. Ngon, 2024 CF2 003404 (D.C. Super. Ct.)
(“D.C.” case or conviction). The USMS then transported her to the Federal Prison Camp at
Case 3:25-cv-01386-JPG Document 29 Filed 02/11/26 Page 1 of 6 Page ID
#<pageID>

2
Alderson, West Virginia, where she arrived and was committed to BOP custody on October 18,
2024. Pursuant to 18 U.S.C. § 3584(c), the BOP aggregated those sentences into a 49-month
sentence. Ngon currently has a projected release date of May 28, 2027. See BOP, Find an Inmate,
https://www.bop.gov/inmateloc/ (visited Feb. 10, 2026).
The sentence credits Ngon seeks were created by § 101(a) of the FSA, Pub. L. 115-391, 132
Stat. 5194, 5196 (2018) (codified at 18 U.S.C. § 3632). That statute provides, in pertinent part, that
the BOP must conduct a risk and needs assessment for each inmate and place the inmate in
appropriate evidence-based recidivism reduction (“EBRR”) programs or productive activities
(“PAs”). See 18 U.S.C. §§ 3621(h) & 3632(a). The risk and needs assessment tool the BOP uses is
called PATTERN. See BOP Program Statement 5410.01 ¶ 5. A prisoner who successfully
completes assigned EBRR programming or PAs shall earn 10 days of time credits (“Federal Time
Credits” or “FTCs”) for every 30 days of participation and possibly another 5 days if they have been
a minimum or low risk for recidivating for two consecutive recidivism assessments. 18 U.S.C.
§ 3632(d)(4)(A). The statute excludes from eligibility for such sentence credits a prisoner who is
serving a sentence for certain convictions listed in the statute. 18 U.S.C. § 3632(d)(4)(D).
II. Discussion
Ngon claims that the BOP has incorrectly calculated her release date because it refuses to
award her FSA credits. Ngon claims the BOP has improperly aggregated her two sentences from
two different courts into one 49-month sentence and has found her ineligible for First Step Act
credits toward that sentence because her D.C. conviction is an excluded offense. She further
contends that under the D.C. Code, she is eligible for First Step Act credits for her D.C. case, and
she has no disqualifying conviction. She also complains that she should have started accruing FSA
credits beginning on the date she was first sentenced. She has received conflicting information on
whether she will receive those credits.
Case 3:25-cv-01386-JPG Document 29 Filed 02/11/26 Page 2 of 6 Page ID
#<pageID>

3
A. Eligibility
The respondent concedes that Ngon is eligible for FTCs for her entire aggregate 49-month
sentence and that the nature of her conviction does not disqualify her from earning FSA FTCs.
Indeed, the BOP has found she is entitled to 150 days of FTCs as of October 14, 2025, the last date
the BOP assessed her FSA FTCs, leading to a release date of June 27, 2027, as of October 14, 2025.
It also projects that other quirks in the FSA FTC implementation process and assumptions about
continuing FTC accrual may cause her “conditional release date” to be moved forward to December
14, 2026. The respondent has confirmed that Ngon is still serving her sentence of incarceration but
is currently doing so at a residential reentry center, that is, a half-way house.
Ngon’s claim that she is not receiving FSA FTCs is meritless, as are its component
complaints about the aggregation of her sentence and disqualification from credits by her D.C.
sentence. She has received at least 150 days of FSA FTC, which has moved her conditional release
date to December 14, 2026. Further, the BOP has placed her in community confinement for all or
part of the last year of her sentence of incarceration pursuant to the Second Chance Act, 18 U.S.C.
§ 3624(c)(1).
B. Commencement of Earning FSA FTCs
Ngon’s only complaint unresolved by the application of FSA FTCs is her contention that she
should have begun earning them as of July 17, 2024, the date she was first sentenced and remanded
to USMS custody, rather than October 18, 2024, the date she arrived at FPC-Alderson.
While it is true that she began serving her sentence on July 17, 2024, see 18 U.S.C.
§ 3585(a), she could not actually earn FSA FTCs until she was committed to BOP custody at her
designated facility. By the FSA’s very terms, FTCs can be awarded only after (1) the BOP has
assessed the inmate’s risk of recidivism and rehabilitation needs, (2) it has assigned her to EBRR
programming or PAs, and (3) she has successfully completed that EBRR programming or PA, see
Case 3:25-cv-01386-JPG Document 29 Filed 02/11/26 Page 3 of 6 Page ID
#<pageID>

4
18 U.S.C. § 3632(d)(4)(A). None of that can occur until the inmate is committed to the BOP’s
custody at her designated BOP facility where the evaluation and assignment can begin. See Jackson
v. Wadas, No. 2:25-CV-00151-JPH-MJD, 2025 WL 1676837, at *6 (S.D. Ind. June 13, 2025);
Freeman v. Lillard, No. 3:24-cv-2227-GCS, 2025 WL 1358556, at *3 (S.D. Ill. May 9, 2025),
reconsid. denied, 2026 WL 295143 (Feb. 4, 2026). This is consistent with federal regulations and
BOP policy. See 28 C.F.R. § 523.42(a)1 (“An eligible inmate begins earning FSA Time Credits
after the inmate’s term of imprisonment commences (the date the inmate arrives or voluntarily
surrenders at the designated Bureau facility where the sentence will be served).”); BOP Program
Statement 5401.01 § 6 (“Further, an inmate cannot earn FTC when not in Bureau custody, including
when in U.S. Marshals Service custody prior to arriving at their designated facility, regardless of
where they are housed. . . .”).
C. Community Correction Placement
Finally, to the extent Ngon may be challenging the failure to transfer her to community
corrections a full 365 days before her conditional release date, such a challenge is not cognizable in
a § 2241 proceeding because it does not challenge the fact or duration of her confinement, See
Walker v. O’Brien, 216 F.3d 626, 629 (7th Cir. 2000).
A federal prisoner may bring a § 2241 petition to challenge the fact or duration of her
confinement. Preiser v. Rodriguez, 411 U.S. 475, 490 (1973); Walker, 216 F.3d at 629. “If the
prisoner is seeking what can fairly be described as a quantum change in the level of custody—
whether outright freedom, or freedom subject to the limited reporting and financial constraints of
bond or parole or probation, or the run of the prison in contrast to the approximation to solitary
1 A District Court in New Hampshire has held that this rule cannot be applied because it is in conflict with 18 U.S.C.
§ 3585(a) regarding the commencement of a sentence. Yufenyuy v. Warden, FCI Berlin, 659 F. Supp. 3d 213, 218
(D.N.H. 2023). That court held that the inmate was eligible for FSA FTCs before arrival at his designated institution,
but it did not address whether the FSA’s requirements for earning FTCs were satisfied. See also Patel v. Barron, No.
C23-937-KKE, 2023 WL 6311281, at *5 (W.D. Wash. Sept. 28, 2023).
Case 3:25-cv-01386-JPG Document 29 Filed 02/11/26 Page 4 of 6 Page ID
#<pageID>

5
confinement that is disciplinary segregation—then habeas corpus is his remedy.” Graham v.
Broglin, 922 F.2d 379, 381 (7th Cir. 1991). If, however, a petitioner is seeking only “a different
program or location or environment,” id., or changes in security level or institution of confinement,
she cannot bring her challenge in a § 2241 petition even if the environment she is challenging is
more restrictive that what she seeks. Bunn v. Conley, 309 F.3d 1002, 1008 (7th Cir. 2002) (habeas
corpus not available to seek “changes in levels of security within a prison, or changes from one
prison to another”); Graham, 922 F.2d at 381 (change from prison factory to work release not
subject to § 2241 relief); Singleton v. Walton, No. 14-CV-01430-DRH, 2015 WL 300421, at *3
(S.D. Ill. Jan. 22, 2015) (change from CMU to general population not subject to § 2241 relief).
Those are in essence challenges to conditions of confinement. See Glaus v. Anderson, 408 F.3d
382, 387-88 (7th Cir. 2005) (declining to question Graham’s distinction between quantum change
in custody level and conditions of confinement).
Ngon has pled nothing suggesting a change to community corrections is the kind of quantum
change in conditions that would be cognizable under § 2241. Instead, it is a routine placement
decision over which this Court has no jurisdiction. “After a district court sentences a federal
offender, the Attorney General, through BOP, has the responsibility for administering the sentence.”
United States v. Wilson, 503 U.S. 329, 335 (1992). The BOP then has “plenary control” of
placement of the inmate, subject only to statutory limits. Tapia v. United States, 564 U.S. 319, 331
(2011); United States v. Saunders, 986 F.3d 1076, 1078 (7th Cir. 2021). This includes the decision
whether to house an inmate in a prison or in community or home confinement, 18 U.S.C.
§ 3624(c)(1) & (2), and the Court has no jurisdiction to review that decision, 18 U.S.C. § 3621(b)
(“Notwithstanding any other provision of law, a designation of a place of imprisonment under this
subsection is not reviewable by any court.”). Saunders, 986 F.3d at 1078 (noting that a court lacks
authority to change an inmate’s place of imprisonment, although it may recommend a different
Case 3:25-cv-01386-JPG Document 29 Filed 02/11/26 Page 5 of 6 Page ID
#<pageID>

6
placement).
III. Conclusion
For the foregoing reason, the Court finds Ngon has not shown that she “is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).
Accordingly, the Court DENIES her § 2241 petition for a writ of habeas corpus and DIRECTS the
Clerk of Court to enter judgment accordingly.
If the petitioner wishes to appeal this decision, generally she must file a notice of appeal
with this Court within 60 days of the entry of judgment. Fed. R. App. P. 4(a)(1)(B). A motion
under Federal Rule of Civil Procedure 59(e) may toll the 60-day appeal deadline. Fed. R. App. P.
4(a)(4). A Rule 59(e) motion must be filed no more than 28 days after the entry of the judgment,
and this 28-day deadline cannot be extended. Other motions, including a Rule 60 motion for relief
from judgment, do not toll the deadline for an appeal.
If the petitioner files a motion for leave to appeal in forma pauperis, she must include in her
motion a description of the issues she intends to present on appeal. See Fed. R. App. P. 24(a)(1)(C).
If she appeals and is allowed to proceed in forma pauperis, she will be liable for a portion of the
$605.00 appellate filing fee (the amount to be determined based on her prison trust fund account
records for the past six months) irrespective of the outcome of the appeal. See Fed. R. App. P. 3(e);
28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008). It is not
necessary for the petitioner to obtain a certificate of appealability from this disposition of her
§ 2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).
IT IS SO ORDERED.
DATED: February 11, 2026
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
Case 3:25-cv-01386-JPG Document 29 Filed 02/11/26 Page 6 of 6 Page ID
#<pageID>