Opinion
Civil Action No. 1:05CV47.
September 27, 2005
REPORT AND RECOMMENDATION/OPINION
I. BACKGROUND
This matter is pending before me for Report and Recommendation pursuant to LR PL P 83.09. On March 16, 2005, the pro se petitioner filed an Application for Habeas Corpus Pursuant to 28 U.S.C. § 2241 asserting the Federal Bureau of Prisons ["BOP"] improperly found him ineligible for a sentence reduction under the RDAP program and violated the APA. He requests that the Court order the BOP to ignore the 2 point gun enhancement and give him a one year sentence reduction upon completion of the RDAP program.
II. FACTS
The petitioner was convicted in the Western District of Virginia of conspiracy to distribute 500 or more grams of methamphetamine. In April 2004, the petitioner was sentenced to 60 months imprisonment and is currently incarcerated at FCI-Morgantown. The petitioner did not appeal his sentence nor did he file a § 2255 motion.
Upon review of the petitioner's petition, it appears to the undersigned that the petitioner wants to participate in the RDAP program, but he has been advised that he is ineligible for the one year sentence reduction because he received a 2 point gun enhancement at sentencing. Displeased with the fact that he is not eligible for early release, the petitioner exhausted his administrative remedies regarding the matter. The petitioner was denied relief and filed the instant petition in which he raises the following grounds:
1. The petitioner's 5th and 6th Amendment rights are being violated because he is being denied a one year sentence reduction on the basis of a 2 point enhancement that was not part of the plea agreement.
2. The procedure followed by the BOP in denying the petitioner a 1 year sentence reduction violates the Administrative Procedures Act ["APA"] because the BOP did not provide adequate notice and opportunity for public comment before promulgating the regulation and program statement.
III. ANALYSIS
Pursuant to 18 U.S.C. § 3621(e)(2)(B), "[t]he 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." See also 28 C.F.R. § 550.58.However, Congress did not define the term "nonviolent offense" used in § 3621(e)(2)(B). Congress delegated to the BOP authority to administer its drug abuse programs. See 28 C.F.R. § 550.56; and gave the BOP the discretion to determine which prisoners may participate in RDAP and which prisoners are eligible for sentence reductions. Lopez v. Davis, 531 U.S. 230 (2001).
Consequently, the BOP adopted a regulation in May 1995, which defined "`nonviolent offense' as a converse of `a crime of violence,'" and "excluded from eligibility for early release under § 3621(e)(2)(B) those inmates whose `current offense is determined to be a crime of violence' as set forth in 18 U.S.C. § 924(c)(3)." Pelissero v. Thompson, 170 F. 3d 442, 444 (4th Cir. 1999); see also 28 C.F.R. § 550.58. In addition to enacting the regulation, in May 1995, the BOP adopted Program Statement 5330.10 which reiterated Regulation 550.58. Additionally, in July 1995, the BOP adopted Program Statement 5162.02 "to further assist case management staff in deciding whether an inmate qualifies for early release under 18 U.S.C. § 3621(e)(2)(B) and under implementing Regulation 550.58." Program Statement 5162.02 identified offenses that may be crimes of violence and specifically provided that an individual who is convicted of a drug offense under 21 U.S.C. § 841 and received a two-level enhancement for possession of a gun has been convicted of a crime of violence. Id.
However, as noted by the Fourth Circuit in Pelissero, some federal courts held that possession of a firearm by a felon is not a crime of violence under 18 U.S.C. § 924(c) so the BOP adopted a revised Regulation 550.58 in October 1997. In its revised regulation, the BOP deleted the crime of violence definition from 18 U.S.C. § 924(c) but stated that at the director's discretion inmates whose current offense is a felony which involved the carrying, possession, or use of a firearm or other dangerous weapon were excluded from eligibility for early release. The BOP amended Program Statement 5330.10 to reflect this change and also adopted Program Statement 5162.04, effective October 9, 1997, which provided that "[a]n inmate will be denied the benefits of certain programs if his or her offense is either a crime of violence or an offense identified at the discretion of the Director of the Bureau of Prisons."
The 1997 regulation was an interim regulation which was finalized on December 22, 2000. See 65 Fed. Reg. 80745.
In Lopez v. Davis, 531 U.S. 230 (2001), the United States Supreme Court determined that the BOP properly exercised its discretion under § 3621(e)(2)(B) in denying early release to an inmate who was convicted of violating 21 U.S.C. § 841, but received a two level enhancement for use of a firearm. The Supreme Court noted that "when an eligible prisoner successfully completes drug treatment, the Bureau thus has the authority, but not the duty, both to alter the prisoner's conditions of confinement and to reduce his term of imprisonment." Lopez v. Davis, 531 U.S. 230, 243 (2001). The Supreme Court found that "the Bureau reasonably concluded that an inmate's prior involvement with firearms, in connection with the commission of a felony, suggests his readiness to resort to life-endangering violence and therefore appropriately determines the early release decision." Id. at 244.
Thus, the BOP has the discretion to deny the petitioner a sentence reduction because of his gun enhancement.
Further, contrary to the petitioner's argument, the BOP did not erroneously consider the 2 point gun enhancement in light ofUnited States v. Booker, ___ U.S. ___, 125 S.Ct. 738 (2005).Booker does not apply retroactively to § 2255 motions when the judgment became final as of the date the Supreme Court issuedBooker. See Varela v. United States, 400 F. 3d 864 (11th Cir. 2005); United States v. Price, 400 F. 3d 844 (10th Cir. 2005); Never Misses a Shot v. United States, 413 F. 3d 781 (8th Cir. 2005); McReynolds v. United States, 397 F. 3d 479 (7th Cir. 2005); Humphress v. United States, 398 F. 3d 855 (6th Cir. 2005); Lloyd v. United States, 407 F. 3d 608 (3d Cir. 2005);Guzman v. United States, 404 F. 3d 139 (2d Cir. 2005).
Because the petitioner's conviction became final prior to the issuance of the Booker decision, in accordance with the just mentioned decisions, the Court finds that the petitioner is not entitled to have Booker applied retroactively to his sentence.
Finally, the petitioner's assertion that 28 C.F.R. § 550.58 violates the APA because the BOP did not comply with the notice and comment requirements of 5 U.S.C. § 553 in enacting the 1997 regulation is without merit.
The APA requires administrative agencies, including the BOP, to provide notice of the proposed rule and a public comment period. See 5 U.S.C. § 553; Chen Zhou Chai v. Carroll, 48 F.3d 1331 (4th Cir. 1995). However, the notice and comment period of APA does not apply to "to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice." 5 U.S.C. § 553(b)(3).
§ 553. Rule making
(a) This section applies, according to the provisions thereof, except to the extent that there is involved —
(1) a military or foreign affairs function of the United States; or
(2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.
(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include —
(1) a statement of the time, place, and nature of public rule making proceedings;
(2) reference to the legal authority under which the rule is proposed; and
(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.
Except when notice or hearing is required by statute, this subsection does not apply —
(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or
(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.
(d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except —
(1) a substantive rule which grants or recognizes an exemption or relieves a restriction;
(2) interpretative rules and statements of policy; or
(3) as otherwise provided by the agency for good cause found and published with the rule.
(e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.
A regulation which does not comply with the APA is invalid.See Auer v. Robbins, 519 U.S. 452, 459 (1997). The undersigned notes that in Bohner v. Daniels, 243 F. Supp. 2d 1171 (D.Or. 2003) the District of Oregon held that the BOP violated § 553(b) and (d) in enacting the 1997 regulation. The court noted that the BOP referred to the 1997 rule as an interim rule and invited public comment. However, the effective date of the interim rule was October 9, 1997, but nothing was published in the Federal Register until October 15, 1997. The court further found that no exceptions to § 553(b) applied.
However, the petitioner's case differs from the Bohner case as the petitioner's eligibility for early release was not determined under the 1997 interim rule as Bohner's was. In fact, the petitioner states in his petition that he was not sentenced until April 26, 2004, long after the 1997 rule was finalized in December 2000.
The December 2000 rule could finalize an invalid interim rule.See Miller v. Gallegos, 2005 WL 256546 (10th Cir. 2005) (unpublished). Thus, there is no APA violation and the petitioner's claim is without merit. See Miller (Tenth Circuit agreed with the district court that while the interim regulations may have been invalid under the APA for failure to comply with the notice and comment procedures of 5 U.S.C. § 553, the regulation had been properly finalized before its application to the petitioners who had not entered RDAP before the final regulation became final).
Pursuant to Fourth Circuit Local Rule 36(c), which disfavors citation of unpublished opinions, a copy of this unpublished opinion is attached.
IV. RECOMMENDATION
Based on the foregoing, the undersigned recommends that the petitioner's § 2241 petition be DENIED and DISMISSED WITH PREJUDICE.
Any party may file, within ten (10) days after being served with a copy of this Recommendation, with the Clerk of the Court, written objections identifying the portions of the Recommendation to which objections are made, and the basis for such objections. A copy of such objections should also be submitted to the Honorable Irene M. Keeley, United States District Judge. Failure to timely file objections to the Recommendation set forth above will result in waiver of the right to appeal from a judgment of this Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); Thomas v. Arn, 474 U.S. 140 (1985).
The Clerk of the Court is directed to mail a copy of this Report and Recommendation/Opinion to the pro se petitioner.