Crickon v. Thomas

• Decision Date: 25 August 2009
• Docket Number: No. 08-35250.,08-35250.
• Citation: 579 F.3d 978
• Parties: Jerry CRICKON, Petitioner-Appellant, v. J.E. THOMAS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

579 F.3d 978

Jerry CRICKON, Petitioner-Appellant, v. J.E. THOMAS, Respondent-Appellee.

No. 08-35250.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 2, 2009.

Filed August 25, 2009.

Stephen R. Sady, Chief Deputy Federal Public Defender, Lynn Deffebach, Portland, OR, on behalf of petitioner-appellant Jerry Crickon.

Suzanne A. Bratis, Assistant United States Attorney, Portland, OR, on behalf of respondent-appellee J.E. Thomas.

Appeal from the United States District Court for the District of Oregon, Ancer L. Haggerty, District Judge, Presiding. D.C. No. 07-CV-01180-HA.

Before: RICHARD A. PAEZ and JOHNNIE B. RAWLINSON, Circuit Judges, and BRUCE S. JENKINS,^* District Judge.

RAWLINSON, Circuit Judge:

Appellant Jerry Crickon (Crickon) challenges regulations promulgated by the Bureau of Prisons (BOP) that categorically exclude prisoners with certain prior convictions from early release eligibility. Because we conclude that the BOP failed to provide a rational explanation for the exclusion in the administrative record, we reverse the district court's decision denying Crickon's habeas petition.

I. BACKGROUND

A. Regulatory Background

Title 18 U.S.C. § 3621 governs the terms of imprisonment for a person convicted of a federal crime. See 18 U.S.C. § 3621. In 1990, Congress enacted the Crime Control Act of 1990, which amended 18 U.S.C. § 3621 to require the BOP to "make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse." Pub.L. 101-647, § 2903, 104 Stat. 4789, 4913 (1990) (codified at 18 U.S.C. § 3621(b)).

In 1994, hoping to "draw into treatment" inmates otherwise reluctant to go through the "difficult and painful treatment program," H.R.Rep. No. 103-320, p. 5 (Nov. 3, 1993), Congress amended 18 U.S.C. § 3621 to include incentives for participation. See Violent Crime Control and Law Enforcement Act of 1994, 103 Pub.L. No. 322, § 32001, 108 Stat. 1796, 1896-97. The revised statute thus provides that the BOP may reduce the sentence by up to one year for an inmate who successfully completes the program. 18 U.S.C. § 3621(e)(2)(B).¹

In 1995, the BOP promulgated its initial interim rule implementing the early release provision of § 3621(e)(2)(B). See 60 Fed.Reg. 27692-27695 (May 25, 1995), codified at 28 C.F.R. § 550.58 (1995). The rule reflected the BOP's decision to exercise its discretion to reduce an inmate's sentence by excluding several categories of inmates not referenced in the statute from eligibility for early release, including any inmate with a prior "federal and/or state conviction for homicide, forcible rape, robbery, or aggravated assault" irrespective of when such conviction was incurred. 28 C.F.R. § 550.58 (1995).

The BOP subsequently promulgated a second interim rule, leaving unchanged the prior conviction exclusion. See 61 Fed. Reg. 25121-01 (May 17, 1996); codified at 28 C.F.R. § 550.58 (1996). Contemporaneously, the BOP issued a Change Notice referencing Program Statement 5330.10, which explained the prior conviction exclusion, emphasizing that any prior conviction received at any time for one of the four specified crimes would result in categorical exclusion from early release eligibility.² See Change Notice 01 to Bureau of Prisons Program Statement Number 5330.10 (May 17, 1996), Petr's Br. app. D.

In 1997, the BOP promulgated a third interim rule. See 62 Fed.Reg. 53690 (Oct. 15, 1997); codified at 28 C.F.R. § 550.58 (1997). In this rule, the BOP added inmates with prior convictions for sexual abuse of a minor to those deemed ineligible for early release under § 3621(e). See 62 Fed.Reg. at 53691. The BOP provided no explanation for this expansion. See id.

In 2000, the BOP promulgated a final rule, at issue in this litigation, codified at 28 C.F.R. § 550.58(a)(1)(iv) (2000).³ See 65 Fed.Reg. 80745-01 (Dec. 22, 2000). In conjunction with this rule, the BOP also responded to comments made in response to the interim rules. See id. at 80746-48. The BOP recognized comments expressing concerns regarding the use of prior convictions, id. at 80745-46, but finalized the rule without change. See id. at 80748.

Since promulgation of the original BOP rule, we have affirmed the BOP's authority to exercise its discretion to categorically exclude inmates with a qualifying prior conviction from eligibility for early release under § 3621(e). See Jacks v. Crabtree, 114 F.3d 983, 984-86 (9th Cir.1997); see also Lopez v. Davis, 531 U.S. 230, 244, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001) (recognizing the BOP's discretion under § 3621 to promulgate a regulation categorically denying early release to prisoners based on pre-conviction conduct).

However, as discussed in more detail below, we recently ruled that, with respect to the categorical exclusion of inmates convicted of offenses involving firearms, the BOP's promulgation of § 550.58(a)(1)(vi)(B) (2000) violated the Administrative Procedure Act (APA). See Arrington v. Daniels, 516 F.3d 1106, 1113 (9th Cir.2008). Applying § 706 of the APA, we concluded "that the administrative record contains no rationale explaining the Bureau's decision to categorically exclude prisoners with convictions involving firearms from eligibility for early release under § 3621(e)," and that the final rule was therefore invalid with respect to that categorical exclusion. Id. at 1112.

B. Factual Background

In July, 2000, Crickon was convicted of conspiracy to possess with the intent to distribute methamphetamine in violation of 21 U.S.C. § 846. He was sentenced to 151 months of imprisonment. Crickon is currently incarcerated at the Federal Prison Camp in Sheridan, Oregon (FPC-Sheridan). His expected release date, "via Good Conduct Time Release," is February 9, 2010.

In March, 2007, Crickon received notice that he qualified for participation in the BOP's Residential Drug Abuse Program (RDAP). However, in the same notice, Crickon was informed that he was not eligible for the early release incentive offered in § 3621(e). The sole reason provided for Crickon's ineligibility for early release was his conviction in 1970 for voluntary manslaughter, a crime the BOP categorized as a violent offense.

Crickon filed a federal habeas petition in district court under 28 U.S.C. § 2241, challenging the BOP's determination that he was ineligible for the early release incentive. The district court denied the petition, concluding that "[a]lthough petitioner's conviction for voluntary manslaughter occurred almost thirty-eight years ago, the BOP's determination that petitioner is disqualified from the early release incentive ... because of this conduct was neither arbitrary nor capricious."

Crickon filed a timely notice of appeal and a certificate of appealability was granted as to whether the BOP abused its administrative discretion.

II. STANDARD OF REVIEW

We review de novo a district court's denial of a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Tablada v. Thomas, 533 F.3d 800, 805 (9th Cir. 2008). We review the BOP's promulgation of § 550.58 under the APA, see id., which provides that an agency action must be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). We must review the agency action based solely on the administrative record "and determine whether the agency has articulated a rational basis for its decision." Tablada, 533 F.3d at 805 (citation omitted).

III. DISCUSSION

A. Validity of the BOP Regulation

The APA provides that a "reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Under the arbitrary and capricious standard, our review of the BOP regulation is "highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision." Northwest Ecosystem Alliance v. U.S. Fish and Wildlife Service, 475 F.3d 1136, 1140 (9th Cir.2007) (citation and internal quotation marks omitted).

"A reasonable basis exists where the agency considered the relevant factors and articulated a rational connection between the facts found and the choices made." Arrington, 516 F.3d at 1112 (citation and internal quotation marks omitted). "The reviewing court should not attempt itself to make up for [any] deficiencies." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Thus, we may "not supply a reasoned basis for the agency's action that the agency itself has not given." Id. (citation omitted). Nor should we "infer an agency's reasoning from mere silence." Arrington, 516 F.3d at 1112 (citation omitted). However, "[e]ven when an agency explains its decision with less than ideal clarity, a reviewing court will not upset the decision on that account if the agency's path may reasonably be discerned." Alaska Dept. of Environmental Conservation v. E.P.A., 540 U.S. 461, 497, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004) (citation and internal quotation marks omitted).

On appeal, Crickon argues that the BOP failed to articulate a reasonable basis for the final rule excluding eligible prisoners with "stale" prior convictions from early release eligibility and that the final rule is therefore invalid under the APA.⁴

Review of the administrative record supports the conclusion that the BOP rule encompassed in 28 C.F.R. § 550.58(a)(1)(iv) (2000) is invalid because the BOP failed to provide any rationale for the categorical exclusion generally, and because the rationale provided for considering any prior conviction, regardless of its age, is premised upon a mistake of law, i.e., that § 3621(e)(2)(B) limits the early release incentive to inmates who have no prior convictions for violent offenses.

Our recent ruling in A...