McLean v. Crabtree

• Citation: 173 F.3d 1176
• Decision Date: 07 April 1999
• Docket Number: Nos. 98-35675,98-35762,98-35689,98-35766,s. 98-35675
• Parties: 99 Cal. Daily Op. Serv. 2547, 1999 Daily Journal D.A.R. 3320, 1999 Daily Journal D.A.R. 6573 Robert McLEAN, Petitioner-Appellant, v. Joseph H. CRABTREE, Warden, Federal Correctional Institute, Sheridan, Oregon, Respondent-Appellee. Raul Cruanas, Petitioner-Appellant, v. Joseph H. Crabtree, Warden, Federal Correctional Institute, Sheridan, Oregon, Respondent-Appellee. Mario Mendoza, Petitioner-Appellant, v. Joseph H. Crabtree, Warden, Federal Correctional Institute, Sheridan, Oregon, Respondent-Appellee. Kao Saefong, Petitioner-Appellant, v. Joseph H. Crabtree, Warden, Federal Correctional Institute, Sheridan, Oregon, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1176

173 F.3d 1176

99 Cal. Daily Op. Serv. 2547, 1999 Daily

Journal D.A.R. 3320,

1999 Daily Journal D.A.R. 6573

Robert McLEAN, Petitioner-Appellant, v. Joseph H. CRABTREE, Warden, Federal Correctional Institute, Sheridan, Oregon, Respondent-Appellee.

Raul Cruanas, Petitioner-Appellant, v. Joseph H. Crabtree, Warden, Federal Correctional Institute, Sheridan, Oregon, Respondent-Appellee.

Mario Mendoza, Petitioner-Appellant, v. Joseph H. Crabtree, Warden, Federal Correctional Institute, Sheridan, Oregon, Respondent-Appellee.

Kao Saefong, Petitioner-Appellant, v. Joseph H. Crabtree, Warden, Federal Correctional Institute, Sheridan, Oregon, Respondent-Appellee.

Nos. 98-35675, 98-35689, 98-35762, 98-35766.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Jan. 13, 1999.

Decided April 7, 1999.

Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, Oregon, for the petitioners-appellants.

Thomas M. Gannon, United States Department of Justice, Washington, DC, for the respondent-appellee.

Appeals from the United States District Court for the District of Oregon Ancer L. Haggerty, District Judge, Presiding, D.C. Nos. CV-98-00385-ALHD.C., CV-98-00568-ALHD.C., CV-97-01641-ALH, CV-97-01828-ALH.

Before: LEAVY, McKEOWN and WARDLAW, Circuit Judges.

WARDLAW, Circuit Judge:

Federal prisoners Robert L. McLean, Raul Cruanas, Mario Mendoza, and Kao Saefong (collectively "Appellants") appeal the district court's denial of their 28 U.S.C. § 2241 petitions for habeas corpus. The district court rejected Appellants' claims that the Bureau of Prisons (the "BOP") violated their statutory and constitutional rights when it denied their requests for an 18 U.S.C. § 3621(e)(2)(B) sentence reduction ¹ on the basis of an Immigration and Naturalization Service ("INS") detainer lodged against each. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a), and we affirm.

We review the district court's decision to grant or deny a federal prisoner's petition for habeas corpus de novo. See United States v. Cruz-Mendoza, 147 F.3d 1069, 1071-1072 (9th Cir.1998).

I

Appellants are presently serving custodial sentences ² at the Federal Correctional Institute in Sheridan, Oregon ("FCI Sheridan"). While at FCI Sheridan, each completed a residential substance abuse treatment program despite his ineligibility for the sentence reduction incentive provided under the Violent Crime Control and Law Enforcement Act of 1994, 18 U.S.C. § 3621(e)(2)(B) ("sentence reduction"), which Congress enacted to encourage prisoners to complete substance abuse treatment programs. See 18 U.S.C. § 3621(e)(2). The BOP found Appellants ineligible for sentence reduction pursuant to: (1) a BOP regulation that conditions sentence reduction on the completion of a community-based treatment program, see 28 C.F.R. § 550.58 (1997) ("the community requirement"), ³ and (2) a BOP interim rule that categorically excludes prisoners with detainers from sentence reduction eligibility, see 61 Fed.Reg. 25121 (1996); 28 C.F.R. § 550.58 (1997) ( "the detainer exclusion"). ⁴

Appellants petitioned for habeas corpus relief claiming that the community requirement and detainer exclusion exceed the scope of the BOP's authority under § 3621(e)(2)(B) and violate the Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments. In four separate, but virtually identical orders, the district court denied the petitions, citing its recent decision in Birth v. Crabtree, 996 F.Supp. 1014 (D.Or.1998). ⁵ In Birth, the district court held that § 3621(e)(2)(B) does not create a due process liberty interest in the sentence reduction, citing our recent decision in Jacks v. Crabtree, 114 F.3d 983, 986 (9th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1196, 140 L.Ed.2d 325 (1998). See Birth, 996 F.Supp. at 1016-17. The district court also concluded in Birth that the BOP has the statutory authority to deny inmates with detainers lodged against them eligibility for sentence reduction if they would be unable to complete the community-based treatment phase of the sentence reduction treatment program. See Birth, 996 F.Supp. at 1017-18. ⁶

II

Appellants argue that the BOP lacks the statutory authority to promulgate the community requirement and detainer exclusion. When reviewing an agency's construction of a statute it administers, we apply the two-part test set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). First, we examine the statute itself to determine whether Congress has directly spoken to the precise question. See Chevron, 467 U.S. at 842, 104 S.Ct. 2778. "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." Id. at 842-43, 104 S.Ct. 2778. When, however, an agency's interpretation of a statute is in conflict with the plain language of the statute, we will not defer to that interpretation. See Downey v. Crabtree, 100 F.3d 662, 666 (9th Cir.1996) (quoting National R.R. Passenger Corp. v. Boston and Maine Corp., 503 U.S. 407, 417, 112 S.Ct. 1394, 118 L.Ed.2d 52 (1992)).

Second, if the statute is "silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 843, 104 S.Ct. 2778. "In determining whether an agency's construction is permissible, the court considers whether Congress has explicitly instructed the agency to flesh out specific provisions of the general legislation, or has impliedly left to the agency the task of developing standards to carry out the general policy of the statute." Tovar v. United States Postal Service, 3 F.3d 1271, 1276 (9th Cir.1993). "If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778. If the delegation "is implicit ... a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Id. at 844, 104 S.Ct. 2778; accord Association of Pub. Agency Customers, Inc. v. Bonneville Power Admin., 126 F.3d 1158, 1169 (9th Cir.1997) ("When relevant statutes are silent on the salient question, we assume that Congress has implicitly left a void for an agency to fill. We must therefore defer to the agency's construction of its governing statutes, unless that construction is unreasonable.").

The Chevron reasonableness standard affords agencies less latitude than the arbitrary and capricious standard. See Tovar, 3 F.3d at 1277. However, we "need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading [we] would have reached if the question initially had arisen in a judicial proceeding." Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. 2778. Instead, we simply ask "whether we are compell[ed] to reject" the agency's construction. Leisnoi, Inc. v. Stratman, 154 F.3d 1062, 1069 (9th Cir.1998) (quotations omitted). Properly promulgated regulations, subject to the rigors of the Administrative Procedure Act, 5 U.S.C. § 553, are entitled to full Chevron deference. See Jacks, 114 F.3d at 985.

A. The Community Requirement.

The statute does not prohibit the community requirement. See 18 U.S.C. § 3621(e)(2)(B); Rublee v. Fleming, 160 F.3d 213, 215 (5th Cir.1998). To the contrary, the statute is replete with discretionary language contemplating the BOP's implied authority to design the sentence reduction treatment program.

The sentence reduction provision itself provides that a sentence "may be reduced by the [BOP]." 18 U.S.C. § 3621(e)(2)(B). This discretionary language grants the BOP broad discretion to grant or deny the one-year reduction. See Jacks, 114 F.3d at 984. The statute also grants the BOP discretion to maintain in custody even those prisoners who successfully complete residential substance abuse treatment: "Any prisoner who, in the judgment of the Director of the [BOP], has successfully completed a program of residential substance abuse treatment ... shall remain in the custody of the [BOP] under such conditions as the [BOP] deems appropriate." 18 U.S.C. § 3621(e)(2)(A); see also Jacks, 114 F.3d at 984 (holding BOP's broad discretion to grant or deny sentence reduction under § 3621(e)(2)(B) is reinforced by § 3621(e)(2)(A)).

In addition to granting the BOP discretion to keep prisoners in custody, the statute confers upon the BOP authority to administer and design multiple treatment programs. This grant of authority is demonstrated by the BOP's duty to make available "appropriate" substance abuse treatment. 18 U.S.C. § 3621(b) (1994); see also H.R. REP. NO. 103-320, 6 (1993) ("In effect ... subparagraph [ (e)(2)(B) ] authorizes the [BOP] to shorten by up to one year the prison term of a prisoner who has successfully completed a treatment program, based on criteria to be established and uniformly applied by the [BOP]."). The BOP's authority to design and administer multiple treatment programs is also reflected by the requirement that the BOP transmit a report to Congress each year containing a "detailed ... description of each substance abuse treatment program, residential or not, operated by the [BOP]." 18 U.S.C. § 3621(e)(3)(A).

Therefore, although the statute does not expressly delegate authority to the BOP to design the sentence reduction treatment program, this power is implied by the BOP's statutory authority to exercise discretion in deciding whether to keep prisoners in custody and its authority to design and administer...