Opinion
Civil No. 99-4017 (JBS)
January 25, 2001
APPEARANCES:
Juan Ulises Duarte Register No. 02543-061 FPC Allenwood Montgomery, PA Petitioner Pro Se.
Robert J. Cleary, United States Attorney By: Louis J. Bizzarri, AUSA One John F. Gerry Plaza Camden, New Jersey Attorney for Respondent
MEMORANDUM OPINION
This matter is before the court on pro se petitioner Juan Ulises Duarte's second petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Duarte, who has completed the 500 hour Residential Drug Abuse Program ("RDAP") operated by the federal Bureau of Prisons ("BOP") as of August 10, 1999, alleges that the BOP has improperly denied him eligibility for a sentence reduction under 18 U.S.C. § 3621 (e)(2)(B), which provides that prisoners "convicted of a nonviolent offense" shall be eligible for a sentence reduction of up to one year upon completion of the RDAP. The BOP has precluded Mr. Duarte from early release under 18 U.S.C. § 3621(e)(2)(B) because he was in possession of a small arsenal of weapons at the time of his arrest on drug charges. Among the weapons recovered were two hand grenades, hollow point bullets, and a rifle silencer. Based on the Supreme Court's recent decision in Lopez v. Davis,_U.S._, S.Ct., 2001 WL 20545, 2001 Daily Journal D.A.R. 337 (Jan 10, 2001), the BOP was within its discretion to deny Mr. Duarte early release, and his petition will be denied.
BACKGROUND
The facts and background of this case are discussed in some detail in this Court's Opinion addressing Mr. Duarte's first habeas corpus petition concerning his request for early release. See Duarte v. Morris, Civ. No. 99-15 (JBS), Slip. Op. (D.N.J. Apr. 29, 1999). As discussed in that Opinion, Duarte is presently incarcerated at the federal correctional institution in Allenwood, Pennsylvania serving a sentence of 76 months imprisonment, to be followed by four years supervised release, imposed by the U.S. District Court for the Southern District of New York on November 14, 1996, upon his guilty plea to a charge of conspiracy to possess and distribute heroin, in violation of 21 U.S.C. § 812 and 841(a)(1). The 76 month sentence includes six months for violation of supervised release pursuant to an earlier sentence of 10 months imprisonment, to be followed by 3 years supervised release, imposed by the U.S. District Court for the Southern District of Ohio upon Duarte's conviction of wilfully engaging in the business of dealing in firearms without a license, in violation of 18 U.S.C. § 922(a)(1)(A), 923(a) and 924(a)(1)(D). As part of his plea agreement on the drug charge, Duarte received a two level sentence enhancement under U.S.S.G. 2D1.1 because federal agents found two hand grenades, a sock containing hollow point bullets and shotgun shells, and a sawed-off suppressor designed to muzzle a rifle during a search of his apartment. Duarte's projected release date is November 1, 2001.
Duarte enrolled in the RDAP at FCI Fairton on August 10, 1998 and completed the program in August 1999. However, the BOP has informed Duarte that he will not be eligible for early release under § 3621(e)(2)(b). After exhausting his administrative remedies, Mr. Duarte filed a § 2241 habeas petition (Civ. No. 99-15 (JBS)) which was denied without prejudice because he had not yet completed the RDAP program at the time of filing.
After completing the program in August 1999, Mr. Duarte filed the present habeas application, asserting the same grounds for relief set forth in his initial petition. In the meantime, this Court decided inTreglia v. Beeler, 82 F. Supp.2d 297 (D.N.J. 1999), that the BOP did not have the discretion to categorically exclude certain inmates from early release based solely on a firearm enhancement. That case was not appealed. Judge Irenas came to the opposite conclusion in Riley v. Morris, Civ. No. 98-4483 (JEI), finding that a decision to deny early release due to a weapon enhancement was within the BOP's discretion.Riley was appealed to the Third Circuit, and this Court stayed resolution of Mr. Duarte's petition pending resolution by the Court of Appeals of the divergent decisions in Treglia and Riley.
Before the Third Circuit decided Riley, however, the Supreme Court accepted review in the case of Lopez v. Davis, supra. Because Lopez concerned the same early release/weapon enhancement issue as Riley, the Third Circuit on October 31, 2000 dismissed the appeal in Riley as moot pending resolution in Lopez. On January 10, 2001, the Supreme Court decided Lopez, holding in no uncertain terms that it is within the BOP's discretion to deny early release to prisoners whose felonies involved use of a firearm.
DISCUSSION
In Lopez, the petitioner was convicted of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841. Because he possessed a firearm in connection with his crime, the District Court enhanced his sentence two levels pursuant to USSG § 2D1.1(b)(1).Lopez, 2001 WL 20545 at *4. The BOP determined that Lopez was eligible for RDAP, but categorically ineligible for early release under 28 C.F.R. § 550.58(a)(1)(vi).
The District Court agreed with the petitioner that the BOP did not have the discretion to categorically deny early release based on a firearms enhancement, and ordered early release. The Eighth Circuit reversed, observing that § 3621 does not require that the BOP make individual, rather than categorical assessments. Lopez, 2001 WL 20545 at * 4 (citing Bellis v. Davis, 186 F.3d 1092, 1094 (8th Cir. 1999)). The Supreme Court accepted certiorari to resolve a split among the Courts of Appeals over the permissibility of the BOP's regulation in § 550.58(a)(1)(vi), and affirmed the Eighth Circuit Court of Appeals.
In a 6-3 Opinion, the Lopez Court agreed with the BOP that 18 U.S.C. § 3621(e)(2)(B) functions as a grant of discretion to reduce sentences, not an imperative that they must do so. To decide otherwise, the Court reasoned, would prevent the BOP from categorically excluding from early release murderers, rapists, or child molesters, 28 C.F.R. § 550.58(a)(1)(iv), because "that provision, as much as the exclusion of inmates imprisoned for offenses involving a firearm, . . . entails no individualized determination based on postconviction conduct." Id. at *6. The Court concluded that "[w]hen 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." Id. at *7. The Court also rejected Lopez's position that the BOP may not make categorical exclusions, but may rely only on individualized determinations, finding that such an approach could invite "favoritism, disunity, and inconsistency." Id.Lopez negates the force of Mr. Duarte's arguments concerning the legitimacy of the BOP's decision to categorically exclude him from early release after drug treatment. Accordingly, Lopez compels denial of Mr. Duarte's habeas petition.
CONCLUSION
For the reasons discussed above, the Court will deny Mr. Duarte's habeas petition. The accompanying Order is entered.
ORDER
THIS MATTER having come before the court on pro se petitioner Juan U. Duarte's petition for writ of habeas corpus, under 28 U.S.C. § 2241, and the court having considered the petition, respondent's answer thereto, and petitioner's traverse, and for the reasons set forth in the accompanying Opinion;
IT IS on this_ 25th _day of January, 2001, hereby
ORDERED that the petition for writ of habeas corpus is DISMISSED with prejudice.