Joseph Byrd, Petitioner, v. Joseph Crabtree, Warden, FCI Sheridan, Oregon, Respondent.



Civil No. 98-07-HA



UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON



22 F. Supp. 2d 1128; 1998 U.S. Dist. LEXIS 20217



April 28, 1998, Decided

April 27, 1998, Filed, Entered on the Docket







DISPOSITION: [**1] Byrd's petition for a writ of habeas corpus (doc. # 1) GRANTED; and case remanded.









COUNSEL: For JOSEPH C BYRD, Petitioner: Stephen R Sady, Federal Public Defender, Portland, OR.


For JOSEPH CRABTREE, Respondent: Kenneth C Bauman, US Attorneys Office, Portland, OR.



JUDGES: Ancer L. Haggerty, United States District Judge.



OPINIONBY: Ancer L. Haggerty



OPINION:

[*1128] OPINION AND ORDER


HAGGERTY, District Judge:


I. INTRODUCTION

The petitioner, Joseph Byrd ("Byrd"), is an inmate at the Federal Correctional Institution ("FCI") at Sheridan, Oregon. The respondent, Joseph H. Crabtree, is the Warden of FCI at Sheridan, Oregon, and is inmate Byrd's custodian and the proper respondent in this action. Fed. R. Civ. P. 81(a)(2); Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992).

On January 5, 1998, Byrd filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Byrd's petition challenges the BOP's ruling finding him ineligible for a sentence reduction pursuant to 18 U.S.C. § 3621(e)(2)(B). Upon consideration of the parties' briefs, the relevant law, and the record herein, the court grants Byrd's petition [*1129] for a writ of habeas corpus, for the reasons set forth in the [**2] opinion and order below.


II. BACKGROUND

Byrd is serving a four-year term of imprisonment at FCI Sheridan for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and for use of a telephone to facilitate the distribution of cocaine in violation of 18 U.S.C. § 843(b). The record show that on September 24, 1996, the BOP made a entry in its records reflecting Byrd's ineligibility for early release. Subsequently, on October 7, 1996, the BOP notified Byrd, in writing, that he was ineligible for early release because of a May 28, 1987 prior conviction in the state of Washington for assault in the second degree. Notwithstanding this notification, Byrd entered into the first phase of the drug abuse treatment program on September 27, 1996. Byrd completed the first phase of the program on September 24, 1997, and according to BOP records is currently participating in the second phase of the program.

Pursuant to 18 U.S.C. § 3621(b), Congress provided that the BOP shall make available appropriate substance abuse treatment for each prisoner the BOP determines has a treatable condition of substance addition or abuse. On September 14, 1994, Congress enacted the [**3] Violent Crime Control and Law Enforcement Act which amended Section 3621 to allow the BOP to grant federal inmates convicted of a nonviolent offense up to a one year sentence reduction for the successful completion of a drug rehabilitation program. 18 U.S.C. § 3621(e)(2)(B).

Then, on May 25, 1995, the BOP promulgated 28 C.F.R. § 550.58 to implement the Act and establish the program's specific eligibility requirements. The regulation states, in pertinent part, that:


an inmate who completes a residential drug abuse treatment program during his or her current commitment may be eligible for early release by a period not to exceed 12 months, in accordance with paragraph (a) of this section, . . . unless the inmate's current offense is determined to be a crime of violence as defined in 18 U.S.C. Section 924(c)(3), or unless the inmate has a prior federal and/or state conviction for homicide, forcible rape, robbery, or aggravated assault.


28 C.F.R. § 550.58. The supplementary information published at the same time as Section 550.58 states the following:


in exercising the Bureau's discretion in reducing a sentence, the Bureau shall also review the criminal history [**4] of the inmate contained in the presentnece Investigation Report, and any inmate with a federal and/or state conviction for homicide, forcible rape, robbery, or aggravated assault shall also be excluded from consideration. Because state convictions may show a considerable range in the degree of violence used in the offense, the Bureau has chosen to use the above cited categories of crimes, which are reported under the FBI Violent Crime Index, as the sole determinant of violence in criminal history.


Early Release Consideration, 60 Fed. Reg. 27692 (May 25, 1995).


III. DISCUSSION

Byrd raises two challenges to the BOP determination that he is ineligible for early release under 18 U.S.C. § 3621(e)(2)(B). First, Byrd contends the BOP's decision was improper because the BOP ignored its own regulations and standards by looking to the underlying facts of his prior assault conviction. Second, he argues that the BOP decision to characterize his 1973 Washington state conviction for assault in the second degree as an aggravated assault is impermissible because the crime he was convicted of may lack the element of intent to inflict severe or aggravated bodily injury as required [**5] by the FBI Violent Crime List. The court agrees with Byrd on both challenges.

A. The BOP impermissibly relied on the underlying facts of Byrd's prior conviction

The supplementary information published at the same time as Section 550.58, requires the BOP to determine if an inmates' prior conviction for assault is equivalent to an aggravated assault under the FBI Violent Crime Index. In the present case, the records indicates that in reaching its decision to [*1130] exclude Byrd from eligibility consideration, the BOP solely relied on the underlying facts described in Byrd's presentence report.

For instance, the record shows that in response to Byrd's informal administrative complaint regarding his Section 3621(e)(2)(B) ineligibility, the BOP provided him with a document entitled, "Informal Resolution." This form document was dated July 30, 1997, and notified Byrd that:


The language reflected in your PSI pertaining to the offense you refrenced [sic] above would indicate that the assault was aggravated. The victim received multiple stab wounds that required several days of hospitalization to recover. This reflects an aggravated assault and therefore does preclude you from receiving [**6] the year off under 18 USC 3621(E). Your request for relief is denied at this time.


See Petitioner's Reply, Exhibit B. Subsequently, in response to a formal Request for Administrative Remedy, Warden Crabtree responded, in pertinent part, that:


Investigation reveals that on May 28, 1987, you were convicted of Assault II in Seattle, Washington. The State of Washington does not codify the offense of Aggravated Assault. However, Assault II consists of knowingly inflicting bodily harm which causes pain equivalent to that produced by torture. Your PSI reflects that during the commission [sic] the offense in question, you hit the victim several times, broke a mirror over the victim's head, and stabbed the victim repeatedly with broken glass. Under these circumstances, the victim's pain was arguably equivalent to that produced by torture and sufficiently egregious to be considered Aggravated; thus, you are not eligible for early release consideration.


See Petitioner's Reply, Exhibit C.

Based on the language used by the BOP in response to both Byrd's informal and formal attempts to resolve his complaint, it is clear that the BOP resorted to and relied on the [**7] conduct described in his presentence report in concluding that Byrd's prior conviction was "tantamount to aggravated assault." In response, Respondent admits that the underlying facts of a prior conviction are irrelevant to a Section 3621(e)(2)(B) eligibility determination. See Respondent's Answer at 11. Accordingly, this court rules that pursuant to its own rules and regulations, the BOP cannot engage in any fact-finding with respect to an inmates' prior offense in making prospective eligibility determinations.

B. Byrd's prior conviction for assault in the second degree in not equivalent to aggravated assault as defined in the FBI Violent Crime Index

Next, the court must determine whether the BOP properly determined that Byrd's prior offense is the equivalent to aggravated assault as defined under the FBI Violent Crime Index. Byrd was convicted of assault in the second degree in Washington state. However, because the state of Washington does not use the term "aggravated" to differentiate between degrees of assault, the court rules that a proper analysis for purposes of Section 3621(e)(2)(B) requires a comparison between the definition of aggravated assault as defined in [**8] the FBI Violent Crime Index and the definition of assault in the second degree as defined by the Washington Criminal Code. See 28 C.F.R. § 550.58.

According to the FBI crimes list, aggravated assault is:


. . . an unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury. This type of assault is usually accompanied by the use of a weapon or by means likely to produce death or great bodily harm. Attempts are included since it is not necessary that an injury result when a gun, knife, or other weapon is used which could and probably would result in serious personal injury if the crime were successfully completed.


See F.B.I. Uniform Crime Report, App. II. On the other hand, the definition for assault in the second degree under the Washington Criminal Code states:


(1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:


[*1131] (a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or


(b) Intentionally and unlawfully causes substantial bodily harm to an unborn quick child by intentionally and [**9] unlawfully inflicting any injury upon the mother of such child; or


(c) Assaults another with a deadly weapon; or


(d) With intent to inflict bodily harm, administers to or causes to be taken by another poison or any other destructive or noxious substance; or


(e) With intent to commit a felony, assaults another; or


(f) Knowingly inflicts bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture.


Wash. Rev. Code Ann. Section 9A.36.021 (West 1997).

After comparing the definition of the FBI Violent Crime Index for aggravated assault with the Washington Criminal Code definition of assault in the second degree, this court is of the opinion that the BOP erred in finding the two definitions indistinguishable. Importantly, the definition of assault in the second degree under subsection (1)(a) lacks the specific intent to inflict harm. It states, in pertinent part, "intentionally assaults another and thereby recklessly inflicts substantial bodily harm." (Emphasis added) In contrast, the FBI definition states, in pertinent part, "for the purpose of inflicting severe or aggravated bodily injury." This later definition [**10] requires that the infliction of severe or aggravated bodily injury be intentional. Because as a mater of law recklessness can not be equated to purposeful intent, assault in the second degree in Washington state cannot be equated to aggravated assault under the FBI Violent Crime Index. Accordingly, the BOP's determination that Byrd's prior conviction for assault in the second degree precludes him from seeking a one-year sentence reduction pursuant to Section 3621(e)(2)(B) is incorrect.


IV. ORDER OF THE COURT

For the foregoing reasons, it is

ORDERED that Byrd's petition for a writ of habeas corpus (doc. # 1) is GRANTED; and it is

FURTHER ORDERED that this case be remanded to the BOP for further proceedings consistent with this opinion and order. n1 IT IS SO ORDERED.




n1 The BOP is directed to immediately transfer Byrd to a Community Corrections Center if there is no other basis for denying him early release consideration under Section 3621(e)(2)(B).



Dated this 27 [**11] day of April, 1998.

Ancer L. Haggerty

United States District Judge

JUDGMENT - Entered on the Docket, FILED 1998 APR 28

Based upon the record,

IT IS HEREBY ORDERED that the petitions for writ of habeas corpus is granted.

IT IS FURTHER ORDERED AND ADJUDGED that this action is remanded to the Bureau of Prisons for further proceedings consistent with this opinion and order and that the Bureau of Prisons to immediately transfer the petitioner to a Community Corrections Center if there is no other basis for denying him early release consideration under Section 3621(e)(2)(B).

Dated this 28 day of April, 1998.

ANCER L. HAGGERTY

U.S. DISTRICT JUDGE

Paul N. Bowen, Petitioner, v. Joseph Crabtree, Warden, FCI Sheridan, Oregon. Respondent.



Civil No. 98-126-HA



UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON



22 F. Supp. 2d 1131; 1998 U.S. Dist. LEXIS 20218



September 1, 1998, Decided

September 1, 1998, Filed; September 3, 1998, Entered on the Docket







DISPOSITION: [**1] Bowen's petition for a writ of habeas corpus (doc. # 1) GRANTED.







COUNSEL: For PAUL N BOWEN, Petitioner: Ellen C Pitcher, Stephen R Sady, Federal Public Defender, Portland, OR.


For JOSEPH CRABTREE, Respondent: Kenneth C Bauman, US Attorneys Office, Portland, OR.



JUDGES: Ancer L. Haggerty, United States District Judge.



OPINIONBY: Ancer L. Haggerty



OPINION:

[*1132] OPINION AND ORDER


HAGGERTY, District Judge:


I. INTRODUCTION

The petitioner, Paul N. Bowen ("Bowen"), is an inmate at the Federal Correctional Institution ("FCI") at Sheridan, Oregon. The respondent, Joseph H. Crabtree, is the Warden of FCI at Sheridan, Oregon, and is inmate Bowen's custodian and the proper respondent in this action. Fed. R. Civ. P. 81(a)(2); Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992).

Bowen has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Bowen's petition argues that his statutory and due process rights are being violated by the BOP's revocation of his eligibility determination for a one-year sentence reduction pursuant to 18 U.S.C. § 3621(e)(2)(B) Upon consideration of the parties' briefs, the relevant law, and the record herein, the court grants Bowen's [**2] petition for a writ of habeas corpus for the reasons set forth in the opinion and order below.


II. BACKGROUND

Bowen is serving a 77-month term of imprisonment at FCI Sheridan for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Pursuant to 18 U.S.C. § 3621(b), Congress provided that the BOP shall make available appropriate substance abuse treatment for each prisoner the BOP determines has a treatable condition of substance addiction or abuse. On September 14, 1994, Congress enacted the Violent Crime Control and Law Enforcement Act which amended Section 3621 to allow the BOP to grant federal inmates convicted of a nonviolent offense up to a one year sentence reduction for the successful completion of a drug rehabilitation program. 18 U.S.C. § 3621(e)(2)(B).

The record indicates that on May 30, 1997, Bowen entered into an "Agreement to Participate in a BOP Residential Drug Abuse Treatment Program." See Respondent's Answer, Exhibit C at 1-3. This agreement explicitly provides, in relevant part, that if Bowen is found eligible for early release under 18 U.S.C. § 3621(e), "this eligibility is provisional and may change." See Respondent's [**3] Answer, Exhibit C at 3.

On June 2, 1997, the BOP notified Bowen, via a form entitled "Provisional Notice of Residential Drug Abuse Program and 3621(e) Eligibility," that "it appears that you are eligible to participate in the residential program." See Respondent's Answer, Exhibit C at 4. The provisional notice then went on to state, "it appears that you will be provisionally eligible for early release." See Respondent's Answer, Exhibit C at 5. The provisional notice concludes by advising Bowen of his right to use the administrative process to appeal the BOP's decision should he be unsatisfied with the result.

On June 10, 1997, the BOP approved Bowen's provisional early release eligibility pursuant to 18 U.S.C. § 3621(e). See Petitioner's Memorandum in Support of Petition for Writ of Habeas Corpus Relief ("Petitioner's Mem."), Exhibit E. The BOP then placed Bowen on a waiting list to participate in the drug abuse treatment program on June 16, 1997. See Respondent's Answer, Exhibit D.

Several months later, on October 9, 1997, the BOP amended Program Statement 5330.10 by issuing Change Notice-03 ("CN-03") and Program Statement 5162.04 which categorically disqualified [**4] prisoners who, like Bowen, were convicted under 18 U.S.C. § 922(g). See Respondent's Answer, Exhibits A and B. Subsequently, on October 28, 1997, the BOP re-evaluated Bowen's eligibility status with the help of a checklist entitled "Notification of Instant Offense Determination," and determined that in light of CN-03 Bowen's instant crime was a crime that now excluded him from early release under 18 [*1133] U.S.C. § 3621(e). See Respondent's Answer, Exhibit C at 6. On December 11, 1998, the BOP advised Bowen of its determination via a document entitled "Notice of Residential Drug Abuse Program Qualification and Provisional § 3621(e) Eligibility." See Respondent's Answer, Exhibit C at 8-9. Notwithstanding the BOP's notification to Bowen that he was no longer eligible for early release, on January 8, 1998, Bowen began the first phase of the residential drug abuse treatment program. See Respondent's Answer, Exhibit D.


III. DISCUSSION

Bowen raises several challenges to the BOP's revocation of his early release eligibility under 18 U.S.C. § 3621(e)(2)(B). Among these challenges is one based on the retroactivity doctrine. However, Bowen claims that the retroactivity [**5] issue is dispositive of this case and therefore limited the legal argument contained in his memorandum in support of his petition to that one issue.

In particular, Bowen argues that because he initially had been determined to be provisionally eligible for the Section 3621(e) incentive, retroactive application of an interim regulation categorically denying Bowen's eligibility violates the constitutionally-based retroactivity doctrine in violation of the Ninth Circuit's recent decision in Cort v. Crabtree, 113 F.3d 1081 (9th Cir. 1997). This court agrees with Bowen and finds his retroactivity challenge persuasive for the following reasons.

In Cort, the petitioners were serving sentences for current convictions of unarmed robbery in violation of 18 U.S.C. § 2113(a). Each petitioner had entered into a drug treatment program and at some point the BOP advised all but one of the petitioners that they were eligible for a § 3621(e)(2)(B) sentence reduction. Soon thereafter, the BOP issued Program Statement 5162.02 which stated, in relevant part, that § 2113(a) offenses may or may not render a prisoner ineligible for a sentence reduction, depending upon the characteristics of the [**6] offense as specified in the prisoner's presentence report. Subsequently, the BOP issued Change Notice-01 which amended Program Statement 5162.02 to categorize all bank robbery offenses as crimes of violence. As a result of the amendment, the BOP re-evaluated the petitioners' eligibility statuses and informed them that they were no longer eligible for the sentence reduction.

On appeal, the Ninth Circuit held that Change Notice-01 could not be construed as applying retroactively and could only apply to those prisoners who had neither entered the substance abuse treatment program nor received favorable eligibility determinations as of the date of its issuance. Cort, 113 F.3d at 1086-87. Accordingly, the BOP remained bound by its initial determination that the petitioners were statutorily eligible for sentence reductions under 18 U.S.C. § 3621(e)(2)(B).

In response to Bowen's petition, Respondent first argues that this case is not controlled by the Cort decision. Specifically, Respondent contends that the Cort decision "simply held that 'Change Notice CN-01 [to 5162.02] applies only to prisoners who had neither entered the substance abuse treatment program nor received [**7] favorable eligibility determinations as of the date of its issuance.'" See Respondent's Answer at 9. This court disagrees and is of the opinion that the Cort decision is directly on point with the present case.

To name a few reasons, this court notes that the present case is substantially similar to Cort in that, first, it involves Program Statement 5162, the same rule at issue in Cort. Second, similar to Cort, it is clear that the BOP made a prospective determination which found Bowen eligible for the sentence reduction. See Respondent's Answer, Exhibit C. Third, Bowen's eligibility decision rendered by the BOP did not purport to attach any condition subsequent to eligibility other than the successful completion of the program. See Respondent's Answer, Exhibit C. Fourth, as in Cort, it is clear that Bowen's eligibility determination was intended to be a final decision because the notification form used by the BOP also informed Bowen of his right to use the administrative remedy procedure to appeal the decision were he found to be ineligible. See Respondent's Answer, Exhibit C at 5.

[*1134] Next, Respondent argues that the present case is distinguishable [**8] from Cort in that there, the inmates had a settled expectation because they had already undergone numerous hours of drug treatment. In the present case, however, Respondent stresses that Bowen had not even begun to participate in the BOP treatment program when P.S. 5162.04 and CN-03 were issued. Therefore, Respondent argues that Bowen's eligibility determination did not give him a settled expectation and that the BOP should be permitted to apply its revised policies to inmates who have not yet begun to participate in the first phase of the treatment program. This argument is likewise untenable.

As stated by the United States Supreme Court and recently emphasized by the Ninth Circuit, "elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted." Landgraf v. USI Film Products, 511 U.S. 244, 265, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994); see also Cort v. Crabtree 113 F.3d 1081, 1084 (1997) (quoting Landgraf). As previously mentioned, the Ninth Circuit in Cort, explicitly held that an amended rule could only apply to [**9] prisoner who had "neither entered nor received favorable eligibility determinations as of the date of issuance." Cort, 113 F.3d at 1086.

In the present case, the court concludes that the BOP has wrongfully disrupted Bowen's settled expectation because he had already been provided with a determination of eligibility prior to the date the amended regulation went into effect. This is supported by the BOP's own interpretation of Cort as stated in its Operations Memorandum 054-97 (5162). Operations Memorandum 054-97 (5162) reads, in pertinent part:


In Cort v. Crabtree, the Ninth Circuit held that CN-02 to PS 5162.02 cannot be applied to inmates who either began participating in the RDAP or had received favorable eligibility determinations for a sentence reduction on or before April 23, 1996, the date of the issuance of CN-01.


Operations Memorandum 054-97. The above language evinces the BOP's interpretation of the Cort decision in that an eligibility determination made before amended rules were issued could not be revoked based on subsequent rules. The Operations Memorandum further reveals that the decisive date is when a prisoner receives [**10] a SENTRY DRG designation of "DAP WAIT." Here, Bowen was notified of his eligibility determination and given a DAP WAIT designation well before the BOP promulgated the new rule. See Respondent's Answer, Exhibit D. And, it is precisely the BOP's determination of eligibility that gave Bowen a basis to believe that he would receive a sentence reduction should he successfully complete the drug treatment program.

In other words, it is the BOP's notification of eligibility that gives rise to some degree of a settled expectation to prisoners that they are entitled to its benefits. This conclusion is further supported because it is this notification which prisoners are entitled to appeal. Accordingly, the court rules that the fact that Bowen had not actually begun his participation in the program is of no consequence because in accordance with Cort, once a prisoner receives a favorable eligibility determination, a subsequent Change Notice cannot apply to him.

The court also rejects Respondent's argument that this case is distinguishable from Cort because any notification regarding eligibility for early release consideration issued to Bowen was merely provisional. Although Bowen's [**11] eligibility determination was qualified by the term "provisional," there is no indication that the term "provisional" referred to changes in the law or new rules and regulations. Rather, it appears that the BOP has always treated eligibility determinations to be provisional subject only to successful completion of the three separate phases of the program. This is evidenced by several documents. First, there is the actual 1996 "Agreement to Participate in a BOP Residential Drug Abuse Treatment Program," entered into by Bowen and a BOP Drug Treatment Specialist, Timothy S. Wright. See Respondent's Answer, Exhibit C. Although the agreement states that the eligibility determination is "provisional, and may change," it contains no reference whatsoever [*1135] to changes in law, but only to other conditions such as completion of the three phases of the treatment program. See Respondent's Answer, Exhibit C at 2.

Second, there is the text of Change Notice-01 to Program Statement 5330.10. See Respondent's Answer, Exhibit I. Here too, there is no reference to the effect of new regulations, rules or laws. The text merely makes reference to disqualifying events such as program failure. [**12] See Respondent's Answer, Exhibit I at 18.

Third, the court examined the BOP's 1997 form entitled "Provisional Notice of Residential Drug Abuse Program and 3621(e) Eligibility." This form was used by the BOP when the amended regulation at issue went into effect, CN-03. The form was modified to include the additional phrase "always provisional and may change." See Petitioner's Supplemental Points and Authorities, Exhibit G1-G11. Even this form contains no reference to changes of law or rules.

Fourth, the court also reviewed the BOP's new 1997 form entitled "Notification of Provisional Determination for 18 U.S.C. § 3621(e) Sentence Reduction." See Petitioner's Supplemental Points and Authorities, Exhibit H. Not surprisingly, this form also fails to make any reference to new laws and or rules. Rather, the term "provisional" merely refers to inmate circumstances. It reads, in pertinent part, as follows: "This adjusted 3621(e) date is provisional, and may change, depending on the inmate's circumstances." See Petitioner's Supplemental Points and Authorities, Exhibit H.

Finally, the record contains a written statement made by BOP Executive Assistant Mary Sullivan which is [**13] very telling. It reads:


The major change is the addition of the § re: "eligibility is provisional" (CN-01, B3-P.S.) Although not in [prior contracts], this has always been the case.


See Petitioner's Supplemental Points and Authorities, Exhibit C. This statement only confirms that the addition of the term "provisional" on the newer drug treatment forms was not interpreted by the BOP to mean that prisoners' eligibility statuses would be subject to new laws, rules or regulations.

Based on all of the above evidence, the court must reject Respondent's argument that the eligibility notification issued to Bowen was merely provisional. Contrary to Respondent's position, the reference to the term "provisional" only appears to address the conditions that must be met by prisoners prior to obtaining a final determination of eligibility. Accordingly, this court rules that the term "provisional," as used by the BOP in the various documents discussed above, has no consequence on retroactivity.

In conclusion, the BOP's decision to re-evaluate Bowen under the amended regulation and its declaration that he is now ineligible for a reduction in sentence under § 3621(e)(2)(B) [**14] was not permissible and was in violation of the retroactivity doctrine. n1




n1 Respondent also argues that the BOP has authority for retroactive rule making. This court, however, was unable to find any statute or regulation which bestows upon the BOP such authority. In addition, with out further support, the court must reject Respondent claim that the Cort decision implicitly found that the statute authorized retrospective ruling. Accordingly, the court will not delve into an analysis of the appropriateness of applying a rule retroactively as set forth in Delancy v. Crabtree, 131 F.3d 780, 787 (9th Cir. 1997) and Seldovia Native Assoc., Inc. v. Lujan, 904 F.2d 1335, 1348 (9th Cir. 1990).



IV. ORDER OF THE COURT

For the foregoing reasons, it is

ORDERED that Bowen's petition for a writ of habeas corpus (doc. # 1) is GRANTED.


Dated this 1 day of September, 1998.

Ancer L. Haggerty

United States District Judge

JUDGMENT - FILED 1998 SEP -3

Based on the record,

IT [**15] IS HEREBY ORDERED AND ADJUDGED that the petition for writ of habeas corpus is granted.

Dated this 3 day of September, 1998.

ANCER L. HAGGERTY

U.S. District Judge

JOHN GAVIS, Petitioner, v. JOSEPH CRABTREE, Warden, Federal Correctional Institution, Sheridan, Oregon, Respondent. TIMOTHY WASHELESKI, Petitioner, v. JOSEPH CRABTREE, Warden, Federal Correctional Institution, Sheridan, Oregon, Respondent. CONRAD NIEMEIER, Petitioner, v. JOSEPH CRABTREE, Warden, Federal Correctional Institution, Sheridan, Oregon, Respondent.



Civil No. 98-1098-HA, Civil No. 98-1100-HA, Civil No. 98-1102-HA



UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON



28 F. Supp. 2d 1264; 1998 U.S. Dist. LEXIS 19088



November 23, 1998, Decided

November 23, 1998, Filed













COUNSEL: [**1] For Petitioners: Stephen R. Sady, Chief Deputy Federal Defender, Portland, OR.


Kenneth C. Bauman, Assistant U.S. Attorney, United States Attorney's Office, District of Oregon, Portland, OR.



JUDGES: ANCER L. HAGGERTY, U.S. DISTRICT JUDGE.



OPINIONBY: ANCER L. HAGGERTY



OPINION:

[*1265] OPINION AND ORDER


HAGGERTY, District Judge:


I. Introduction

This matter comes before the court upon petitions filed by John Gavis, Timothy Washeleski, and Conrad Niemeier seeking habeas corpus relief pursuant to 28 U.S.C. § 2241. The petitioners argue that their statutory and due process rights are being violated by the U.S. Bureau of Prision's ("BOP") revocation and/or denial of their eligibility determination for a one-year sentence reduction under 18 U.S.C. § 3621(e)(2)(B). Because all three petitioners filed a consolidated memorandum in support of their positions and the government has responded to each by raising similar issues and arguments in its briefs, this court will issue a consolidated opinion resolving these cases.

At issue in these cases is Change Notice-03 to Program Statement 5330.10 and Program Statement 5162.04, which categorically disqualifies prisoners who were convicted under 18 U.S.C. [**2] § 922(g) or received a two-point sentencing enhancement under U.S.S.G. § 2.1.1(b). See also Fed. Reg. 53, 690 (1997). Change Notice-03 has the effect of overturning prior decisions of this court and several other courts in the nation that have held that prisoners convicted of drug trafficking and firearms possession offenses are eligible for the one-year sentence reduction upon successful completion of the drug and alcohol treatment program ("DAP").

II. Pertinent Prior DAP Litigation and its Effect

In February 1996, this court granted habeas corpus relief for a prisoner who was deemed by the BOP to be ineligible for a sentence reduction based on a BOP program statement which treated a drug-trafficking offense where there was a sentencing enhancement for possession of a firearm as a "crime of violence." Downey v. Crabtree, 923 F. Supp. 164 (D. Or. 1996). A month later, in March 1996, this court struck down the BOP's program statement concerning felons in possession of firearms. Davis v. Crabtree, 923 F. Supp. 166 (D. Or. 1996). These decisions were both affirmed by the Ninth Circuit Court of Appeals. See Downey v. Crabtree, 100 F.3d 662 (9th Cir. 1996), and [**3] Davis v. Crabtree, 109 F.3d 566 (9th Cir. 1997).

As a result of the Downey decision, on December 24, 1996, the BOP issued Operations Memorandum 149-96 (5162). This memorandum instructed BOP staff members to no longer disqualify prisoners on the basis [*1266] of sentence enhancement factors. Subsequently, on May 30, 1997, following the affirmation of the Davis decision, the BOP issued Operations Memorandum 038-97 (5162). This memorandum instructed BOP staff members to no longer interpret the offense of felon in possession of a firearm as a crime of violence.

III. Petitioner Washeleski

As a preliminary matter, it appears that Washeleski should receive a retroactive determination that he is eligible for participation in the DAP program based on the relief granted in Bowen v. Crabtree, 22 F. Supp. 2d 1131, 1998 WL 640439 (D. Or. 1998). In Bowen, this court held that because the petitioner initially had been determined to be provisionally eligible for the Section 3621(e) incentive, retroactive application of an interim regulation categorically denying petitioner's eligibility violated the constitutionally-based retroactivity doctrine in violation of the Ninth Circuit's recent decision [**4] in Cort v. Crabtree, 113 F.3d 1081 (9th Cir.1997).

In the present case, the record shows that Washeleski applied for the program on September 20, 1996, and signed an agreement to participate. See Petitioner's Consolidated Memorandum in Support of Habeas Corpus Petitions, Exhibit E. Although the Downey and Davis rulings had already been rendered, Washeleski was not given a formal notice of eligibility. Then, on September 27, 1997, two weeks prior to the promulgation of the new program statement, the BOP informed Washeleski that he was ineligible for early release consideration under Section 3621(e) in light of his two-point enhancement at his sentencing. See Petitioner's Consolidated Memorandum in Support of Habeas Corpus Petitions, Exhibit F.

This denial appears to have been done in anticipation of the October 9, 1997, program statement. However, at the time of the BOP's denial, the Downey decision prohibited the BOP from excluding Washeleski from the program because it specifically held that a sentence enhancement for the possession of a weapon is a nonviolent offense. In addition, the denial was in clear violation of the Change Notice implementing [**5] Downey in the Ninth Circuit. See Operations Memorandum 149-96 (5162) (Dec. 24, 1996). Accordingly, this court rules that Washeleski was eligible under not only Downey, but the relevant Operations Memorandum then in place.

IV. Petitioners Gavis and Niemeier

Petitioners Gavis and Niemeier have both been convicted of a nonviolent offense under Davis v. Crabtree, 109 F.3d 566 (9th Cir. 1997), and have been denied early release consideration based on the BOP's new regulation and program statements. Specifically, the new rule states that prisoners are ineligible whose current offense is a felony:


That has as an element, the actual, attempted, or threatened use of physical force against the person or property of another, or


That involved the carrying, possession, or use of a firearm or other dangerous weapon or explosive (including any explosive material or explosive device), or


That by its nature or conduct, presents a serious potential risk of physical force against the person or property of another, or


That by its nature or conduct involves sexual abuse offenses committed upon children.


P.S. 5162.04 (Oct. 9, 1997); CN-03 PS 5330.10 [**6] (Oct. 9, 1997); 28 CFR § 550.58 (Oct. 15, 1997).

The inescapable result of this new program statement is that it reverses governing case law by looking to the underlying facts to exclude prisoners in the Downey and Davis classes from early release consideration. The definition of "a prisoner convicted of a nonviolent offense" for the purpose of section 3621(e) eligibility is, however, a question of statutory construction, and therefore, the principles and holdings of Downey and Davis must still govern. In Downey, the court held that the BOP's reliance on sentencing enhancements conflicts with the plain and unambiguous statutory meaning of Section 3621(e). Downey, 100 F.3d at 666-68. Similarly, in Davis, the court concluded "in sum, the BOP may not interpret the term 'nonviolent offense' to exclude the offense of [*1267] felon in possession of a firearm." Davis, 109 F.3d at 569. Based on the ample Ninth Circuit case law on point, this court rules, that under the circumstances at bar, the determination as to whether a prisoner's current offense is nonviolent for purposes of Section 3621(e) eligibility is a matter of statutory construction and not an exercise [**7] of discretion in the BOP's hands. And, since the statute's construction has already been made based on the agency's prior regulation at issue, the new and inconsistent rule defining crimes of violence is invalid. See also Orr v. Hawk, 156 F.3d 651 (6th Cir. 1998) (concluding that "in view of the absence of statutory support for the agency's definition of 'nonviolent offense,' . . . as well as the body of decisional law construing the term 'crime of violence' not to include § 922(g) violations, the BOP cannot reasonably refuse to consider those convicted as felons in possession for early release under § 3621(e)(2)(B).")

Moreover, it would also appear that the BOP's new rule violates well-established principles of stare decisis and administrative law that prohibits agency rules that conflict with judicial interpretation of the relevant statute. In Neal v. United States, 516 U.S. 284, 133 L. Ed. 2d 709, 116 S. Ct. 763 (1996), the Supreme Court held that an agency could not alter the statutory construction of the federal courts. In particular, it stated that "once we have determined a statute's meaning, we adhere to our ruling under the doctrine of stare decisis, and [**8] we assess an agency's later interpretation of the statute against that settled law." Neal, 516 U.S. at 295. Although factually speaking, the Neal decision is not on point with the matter before the court, its relevance lies in that the Supreme Court reiterated the primacy of the federal courts in statutory interpretation and the necessity of adhering to previous decisions under the doctrine of stare decisis.

In addition, certain basic principles of administrative law support the application of stare decisis in determining whether a prisoner is convicted of a violent crime. First, courts do not accord deference to agency interpretations that are not consistently held. Oregon v. BLM, 876 F.2d 1419 (9th Cir. 1989). As petitioners have pointed out and as demonstrated by the years of DAP litigation, the BOP has been extremely inconsistent in its construction of Section 3621(e).

Next, the Supreme Court has stated that where "the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A. v. National Res. Def. Council, 467 U.S. 837, 842-43, 81 [**9] L. Ed. 2d 694, 104 S. Ct. 2778 (1994). And, once that statute is found to be unambiguous, no deference is owed to the agency. United States v. LaBonte, 520 U.S. 751, 117 S. Ct. 1673, 1679 n.6, 137 L. Ed. 2d 1001 (1977). Here, the Downey court has already held that the plain and unambiguously expressed intent of Congress was that drug traffickers, regardless of sentencing factors, are eligible for the Section 3621(e) incentive. In addition, the Davis court has already found that Congress intended prisoners convicted of being a felon in possession of a firearm to be eligible for the incentive.

Finally, under the doctrine prohibiting nonacquiesence to judicial ruling, administrative agencies are not free to decline to follow circuit precedent in cases within the circuit, unless the agency has a good faith intention of seeking Supreme Court review. NLRB v. Ashkenazy Property Management Corp., 817 F.2d 74, 74-75 (9th Cir. 1987). Here, in this line of DAP cases, the BOP has never sought certiorari from the Supreme Court.

V. Conclusion

Based on the above written opinion, it is

ORDERED that petitioner Washeleski shall receive a retroactive determination that [**10] he is eligible for participation in the DAP program based on the relief granted in Bowen v. Crabtree, 22 F. Supp. 2d 1131, 1998 WL 640439 (D. Or. 1998); it is

FURTHER ORDERED the BOP's new rules are invalid to the extent that they purport to disqualify prisoners with possessory offenses or prisoners who have received a two-point sentencing enhancement under U.S.S.G. § 2.1.1(b). Accordingly, the BOP [*1268] must deem petitioners Gavis and Niemeier eligible for the one-year sentence reduction pursuant to Section 3621(e)(2)(B) upon successful completion of the DAP program.

IT IS SO ORDERED.

DATED this November 23, 1998.

ANCER L. HAGGERTY

U.S. DISTRICT JUDGE

KENNETH E. HICKS, Petitioner, v. JOSEPH M. BROOKS, Respondent.



Civil Action No. 97-D-785



UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO



28 F. Supp. 2d 1268; 1998 U.S. Dist. LEXIS 18551



November 23, 1998, Decided

November 24, 1998, Filed







DISPOSITION: [**1] Habeas corpus application granted. Recommendation of United States Magistrate Judge adopted in part. Recommendation of United States Magistrate Judge rejected in part.







COUNSEL: For Petitioner: Kenneth E. Hicks, FCI - Englewood, Littleton, CO.


For Respondent: Mark S. Pestal, Esq., Assistant U.S. Attorney, Denver, CO.



JUDGES: WILEY Y. DANIEL, United States District Judge.



OPINIONBY: WILEY Y. DANIEL



OPINION:

[*1268] MEMORANDUM OPINION AND ORDER


Daniel, Judge

This matter is before the Court on Magistrate Judge Richard M. Borchers' October [*1269] 15, 1997, recommendation that the Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 by a Person in Federal Custody submitted pro se by the petitioner Kenneth E. Hicks be granted, on the respondent's October 30, 1997, objections to that recommendation, and on the November 12, 1997, notice of supplemental authority the respondent submitted as an addition to the October 30 objections. Mr. Hicks is a prisoner in the custody of the United States Bureau of Prisons (BOP). He currently is incarcerated at the Federal Correctional Institution at Englewood, Colorado.

I must construe liberally the habeas corpus petition because Mr. Hicks is representing [**2] himself. Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Although I must construe the petition liberally, I should not be the pro se litigant's advocate. Hall, 935 F.2d at 1110. I have reviewed the file in the instant action and have determined that the habeas corpus petition must be granted for the reasons stated below.

I. Background

On September 9, 1992, a jury convicted Mr. Hicks in the United States District Court for the District of Wyoming of conspiracy to distribute marijuana pursuant to 21 U.S.C. § 846 (Supp. 1998). After a subsequent drug quantity hearing, the district court found that Mr. Hicks was responsible for the distribution of 350 to 700 pounds of marijuana and sentenced him on January 7, 1993, to sixty-six months of imprisonment and to four years of supervised release. The calculation of Mr. Hicks' sentence included a two-level enhancement pursuant to U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (Supp. 1998) for possession of a weapon during commission of the crime. His conviction was upheld on direct appeal. See United States [**3] v. Hicks, 1994 U.S. App. LEXIS 31474, No. 93-8002, 1994 WL 628986 (10th Cir. Nov. 10, 1994) (unpublished).

In the instant habeas corpus petition, Mr. Hicks alleges that the BOP is denying him "eligibility to attend" a residential drug treatment program and a sentence reduction pursuant to 18 U.S.C. § 3621(e) (Supp. 1998) if he successfully completes the program because the BOP has determined that he was convicted of a crime of violence. See Memorandum in Support of Writ of Habeas Corpus at 4. The BOP's determination that Mr. Hicks was convicted of a crime of violence is based solely on the sentencing enhancement for possession of a weapon. Mr. Hicks contends that he was convicted of a nonviolent offense. Therefore, he argues, he should be allowed to enter a residential drug treatment program and should be considered eligible for a one-year reduction in sentence upon the successful completion of the program. In his response to the petition, the respondent maintains that Mr. Hicks was convicted of a crime of violence and is not eligible for a one-year reduction in sentence based upon the two-level enhancement for possession of a weapon at the time of his drug-related offense.

II. Analysis [**4]

Section 32001 of the Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA), codified at 18 U.S.C. § 3621(e)(2)(B), provides as follows:

Period of custody. -- The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.


18 U.S.C. § 3621(e)(2)(B). Section 3621(e)(2)(B) does not define nonviolent offense. After the enactment of VCCLEA, the BOP established a regulation, 28 C.F.R. § 550.58 (1995), that disqualified from consideration under § 3621(e)(2)(B) inmates whose current offense is determined to be a crime of violence as that term is defined in 18 U.S.C. § 924(c)(3). See Fristoe v. Thompson, 144 F.3d 627, 629 (10th Cir. 1998). Section 924(c)(3) then and currently defines the term "crime of violence" as:

an offense that is a felony and --

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

[*1270] (B) that by its nature, involves a substantial risk that physical force against [**5] the person or property of another may be used in the course of committing the offense.


18 U.S.C. § 924(c)(3) (Supp. 1998). Thus, the BOP did not define "nonviolent" but rather defined "crime of violence" by reference to § 924(c)(3) of the criminal code. The BOP then adopted Program Statement 5162.02 for use by its officers and employees in determining what constitutes a "crime of violence."

In section 9 of Program Statement 5162.02, the BOP provides that a conviction, like Mr. Hicks', for an offense under 21 U.S.C. § 846 should be considered a crime of violence if the sentencing court increased the base level for the offense due to possession of a weapon during the commission of the crime. Under the BOP's regulation and its program statement, Mr. Hicks' crime was not a "nonviolent offense" as required by 18 U.S.C. § 3621(e)(2)(B) because of the sentencing enhancement. Therefore, the BOP determined that he was ineligible for the sentence reduction.

In his recommendation, the magistrate judge finds Roussos v. Menifee, 122 F.3d 159 (3d Cir. 1997), to be persuasive authority in deciding the case at bar. In Roussos, the petitioner was convicted of conspiracy [**6] to distribute narcotics in violation of 21 U.S.C. § 846. During a search of the petitioner's residence, weapons were found. The trial court treated the weapons as connected with the drug offense and imposed a two-level sentence enhancement for possession of a firearm during a drug trafficking offense. After the petitioner was placed in BOP custody, he completed a drug treatment program in order to obtain a one-year sentence reduction. The BOP, however, denied him eligibility for the sentence reduction because of his two-level sentence enhancement. Petitioner then sought to overturn the BOP's decision through court action.

The United States Court of Appeals for the Third Circuit, looking to the decision in Downey v. Crabtree, 100 F.3d 662 (9th Cir. 1996), held that:

Roussos, like Downey, has been denied eligibility for sentence reduction under § 3621(e)(2)(B) not because his offense has been classified as a "crime of violence" under § 924(c)(3), but based solely on the Program Statement that categorically declares all inmates with two-level sentencing enhancements for firearm possession ineligible. By ignoring the offense of conviction and looking only to sentencing factors, [**7] the BOP has attempted to transmogrify a "nonviolent offense" into a "crime of violence." In other words, the BOP converted a nonviolent crime into a violent one by means of a Program Statement that is inconsistent with the language of the statute, and its own regulations. More specifically, under the rationale of Downey, we find the BOP's interpretation of a nonviolent offense in the Program Statement to be in conflict with both 18 U.S.C. § 3621(e)(2)(B) and 28 C.F.R. § 550.58 and therefore erroneous.


Roussos, 122 F.3d at 163.

The magistrate judge agrees with the rationale of Roussos. He points out that Congress specifically provided that a one-year reduction is available to a prisoner "convicted of a nonviolent offense." See 18 U.S.C. § 3621(e)(2)(B). He notes that Mr. Hicks was not convicted of a violent offense.

The magistrate judge recommends that the habeas corpus petition of Mr. Hicks be granted to the extent that the respondent be directed to consider Mr. Hicks for entrance into a residential drug treatment program and to grant him a one-year sentence reduction if he successfully completes the program. The magistrate judge [**8] further recommends that I enter an order prohibiting the respondent from denying Mr. Hicks entrance into the program and from denying him a one-year sentence reduction solely on the basis of the erroneous interpretation that Mr. Hicks was convicted of a violent offense.

After the magistrate judge issued his recommendation, this Court and the United States Court of Appeals for the Tenth Circuit issued decisions that support the magistrate judge's recommendation that Mr. Hicks should be considered for entrance into the program and that he should be considered for a sentence reduction if he successfully [*1271] completes the program. In November 1997, in a factually similar case, Judge Zita L. Weinshienk of this Court held that the BOP cannot adopt a program statement denying a one-year reduction in sentence to a prisoner convicted of committing a nonviolent crime whose sentence was enhanced for the possession of weapons. See Sisneros v. Booker, 981 F. Supp. 1374, 1375-77 (D. Colo. 1997). n1



n1 In Sisneros, the petitioner was assured by BOP staff before he began a drug treatment program that he was eligible for a one-year sentence reduction and only after completing the program did the BOP determine that he was ineligible for a one-year sentence reduction because he had received a two-level sentence enhancement at sentencing. Judge Weinshienk determined that the BOP was estopped from considering the petitioner's sentence enhancement and ordered the BOP to reinstate the sentence reduction he previously had been allowed.


[**9]

In April 1998, the United States Court of Appeals for the Tenth Circuit, citing to Roussos, Downey, and Sisneros, held that the BOP may not categorically exclude from consideration for early release upon completion of a drug treatment program those inmates convicted of nonviolent offenses whose sentences were enhanced for possession of a weapon. See Fristoe, 144 F.3d at 631. Although Fristoe is controlling authority in this Court, I must examine its applicability in the instant action because the relevant BOP regulation has been revised and because Fristoe did not consider the revised regulation.

In October 1997, the BOP revised 28 C.F.R. § 550.58 to delete its incorporation of the crime-of-violence definition from 18 U.S.C. § 924(c)(3). The current regulation now provides in pertinent part:


(1) As an exercise of the discretion vested in the Director of the Federal Bureau of Prisons, the following categories of inmates are not eligible for early release:

. . . .


(vi) inmates whose current offense is a felony . . .

(B) that involved the carrying, possession, or use of a firearm . . .


28 C.F.R. § 550.58(a)(1)(vi)(B) [**10] (1998). By deleting the reference to crime of violence, the revised regulation effectively made that term irrelevant in the context of the drug abuse treatment statute. Royce v. Hahn, 151 F.3d 116, 121 (3d Cir. 1998). Instead, the revised regulation now simply excludes from consideration for early release inmates convicted of a felony offense that involved the possession of a firearm.

The first question before me is whether the revised regulation applies to Mr. Hicks' request that he be considered for admission to a residential drug treatment program and that he be considered eligible for a sentence reduction if he successfully completes the program. I conclude that the revised regulation is applicable because it does not raise ex post facto concerns.

The Ex Post Facto Clause provides that "no . . . ex post facto Law shall be passed." The constitutional prohibition against ex post facto laws "applies only to penal statutes which disadvantage the offender affected by them." Collins v. Youngblood, 497 U.S. 37, 41, 111 L. Ed. 2d 30, 110 S. Ct. 2715 (1990). The Ex Post Facto Clause specifically prohibits Congress from "retroactively altering the definition of crimes [**11] or increasing the punishment for criminal acts." Id. at 43. Consequently, if the government enacts a regulation that increases the punishment for a crime after the crime has been committed, or, to the same effect, eliminates an early release benefit to which a defendant automatically is entitled at the time of his crime, the Ex Post Facto Clause is violated. See Lynce v. Mathis, 519 U.S. 433, 117 S. Ct. 891, 898, 137 L. Ed. 2d 63 (1997) (retroactive application of state law eliminating gain time credits "actually awarded" to petitioner "unquestionably disadvantaged the petitioner" in violation of the Ex Post Facto Clause); Weaver v. Graham, 450 U.S. 24, 35, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981) (finding unconstitutional a reduction of an inmate's gain time to which he "automatically [was] entitled . . . for avoiding disciplinary infractions and performing his assigned tasks").

In this case, the 1997 revised version of 28 C.F.R. § 550.58 does not have the effect of making more onerous the punishments that were established at the time of Mr. Hick's [*1272] offense. The reduction of sentence afforded by 18 U.S.C. § 3621(e)(2)(B), unlike the gain time credits [**12] at issue in Lynce and Weaver, is not an automatic entitlement. The plain language of § 3621(e)(2)(B) explicitly leaves sentence reductions for qualifying inmates to the discretion of the BOP. Fristoe, 144 F.3d at 630; see also Bush v. Pitzer, 133 F.3d 455, 457 (7th Cir. 1998) ("Commission of a 'nonviolent offense' makes a prisoner eligible for consideration but does not require the Bureau to grant the boon he seeks. Eligibility is not entitlement."). Furthermore, the 1997 revised regulation did not alter the BOP's interpretative position in the prior regulation and in the program statement regarding its application of § 3621(e)(2)(B). In short, by excluding Mr. Hicks from consideration for early release under § 3621(e)(2)(B), the 1997 revised regulation does not strip the petitioner of anything to which he previously was entitled or previously had earned in violation of the Ex Post Facto Clause. See Bush, 133 F.3d at 458.

Having determined that the 1997 revised version of 28 C.F.R. § 550.58 applies to Mr. Hicks, the next question is whether the revised regulation is a valid exercise of the BOP's discretionary authority granted [**13] under 18 U.S.C. § 3621(e)(2)(B). "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). If the statute is silent or ambiguous in expressing congressional intent, I must determine whether the agency's interpretation is based on a "permissible construction of the statute." Id. at 843.

The intent of Congress in enacting 18 U.S.C. § 3621(e)(2)(B) is clear. The statute refers to a nonviolent offense and does not contemplate the consideration of any sentencing factors. Although the Tenth Circuit decided Fristoe based upon the former 28 C.F.R. § 550.58 and Program Statement 5162.02, not the 1997 revised regulation, the logic and rationale of Fristoe apply to the revised regulation as well.

Reliance on sentencing enhancements . . . conflicts with the plain language of the statute. Section 3621(e)(2)(B) refers to prisoners 'convicted of a nonviolent offense.' (emphasis added). The [**14] statute does not permit resort to sentencing factors or sentencing enhancements attached to the nonviolent offense.

. . . .

. . . The eligibility criteria in 18 U.S.C. § 3621(e)(2)(B) refer directly to the offense for which the prisoner was convicted.


Fristoe, 144 F.3d at 631.

As the Tenth Circuit and almost every circuit court to address the issue have recognized, "the operative word of [18 U.S.C.] § 3621(e)(2)(B) is 'convicted.'" Downey, 100 F.3d at 668; see also Roussos, 122 F.3d at 163 ("By ignoring the offense of conviction and looking only to sentencing factors, the BOP has attempted to transmogrify 'a nonviolent offense' into a 'crime of violence.'"); Bush, 133 F.3d at 457 ("The statute speaks of a nonviolent offense while . . . Program Statement [5162.02] anchors the definition to deeds that do not constitute the offense.") (quotations omitted); Martin v. Gerlinski, 133 F.3d 1076, 1080-81 (8th Cir. 1998) ("The Program Statement's allowance of consideration of factors that are not part of the offense of conviction is in conflict with the plain language of the statute."); Byrd v. Hasty, 142 F.3d 1395, [**15] 1398 (11th Cir. 1998) ("The statute, 18 U.S.C. § 3621(e)(2)(B), speaks only in terms of conviction."); but see Venegas v. Henman, 126 F.3d 760, 763 (5th Cir. 1997) (upholding the BOP's discretion to determine whether a particular offense is or is not eligible for consideration), cert. denied, 140 L. Ed. 2d 817, 118 S. Ct. 1679 (1998).

In effect, the BOP has eliminated the definition of crime of violence from the 1997 revised regulation and incorporated into the revised regulation the language of the sentence enhancement for possession of a firearm, language that previously was in Program Statement 5162.02. By so doing, the BOP again has accomplished precisely what Fristoe said it may not, i.e., exclude categorically from consideration for early release [*1273] upon completion of a drug treatment program those inmates convicted of a nonviolent offense whose sentence was enhanced for possession of a weapon and, once again, convert a conviction for a nonviolent offense into a violent one by considering the sentence enhancement. At least one circuit judge agrees that the 1997 revised regulation conflicts with the statute's plain language:


By using the phrase [**16] 'convicted of a nonviolent offense,' Congress expressly incorporated the statutory elements necessary for conviction under the offense charged, and not conduct unnecessary to the conviction, as a condition of eligibility. However, both the former regulation and the revised regulation allow the BOP to exclude categorically inmates based upon sentencing factors, without regard to the underlying conviction. . . . This is an obvious contradiction of the plain language of the governing statute.


Pelissero v. Thompson, 155 F.3d 470, 478 (4th Cir. 1998) (Chambers, J., dissenting). Because the 1997 revised regulation conflicts with the plain language of 18 U.S.C. § 3621(e)(2)(B), the regulation is not entitled to any Chevron deference.

III. Conclusion

The revised 28 C.F.R. § 550.58 allows BOP officials to exclude categorically from consideration for sentence reductions inmates such as Mr. Hicks who are convicted of nonviolent offenses based upon sentence enhancements. This violates the unambiguous, statutory language of 18 U.S.C. § 3621(e)(2)(B). Therefore, I find that the BOP has exceeded its authority by interpreting § 3621(e)(2)(B) in a manner inconsistent [**17] with the plain language of the statute by categorically excluding inmates from consideration for sentence reductions based upon sentencing factors.

The habeas corpus petition of Mr. Hicks will be granted. The respondent will be directed to consider Mr. Hicks for entrance into a residential drug treatment program and for a sentence reduction if he successfully completes the program. The respondent will be prohibited from denying Mr. Hicks entrance into a program and from denying him a sentence reduction solely on the basis of the BOP's erroneous interpretation that Mr. Hicks was convicted of a violent offense. Accordingly, it is

ORDERED that the habeas corpus application is granted. It is

FURTHER ORDERED that, for the reasons stated in this order, the Recommendation of United States Magistrate Judge is adopted in part as follows:

(a) The respondent is directed to consider Mr. Hicks for entrance into a residential drug treatment program; and

(b) The respondent is prohibited from denying Mr. Hicks entrance into a program and from denying him a sentence reduction solely on the basis of the BOP's erroneous interpretation that Mr. Hicks was convicted of a violent offense. It is

FURTHER [**18] ORDERED that, for the reasons stated in this order, the respondent is directed to consider Mr. Hicks for a sentence reduction if he successfully completes the program. It is

FURTHER ORDERED that the Recommendation of United States Magistrate Judge is rejected to the extent that it directs the BOP to grant Mr. Hicks a one-year sentence reduction if he successfully completes the program.

DATED at Denver, Colorado, this 23rd day of November, 1998.

BY THE COURT:

WILEY Y. DANIEL

United States District Judge