Arrington v. Daniels

Decision Date20 February 2008
Docket NumberNo. 07-35884.,No. 07-35097.,No. 07-35090.,No. 07-35023.,No. 07-35087.,No. 07-35084.,No. 07-35093.,No. 06-36092.,No. 07-35082.,No. 06-35855.,No. 07-35089.,No. 07-35086.,No. 07-35092.,No. 07-35013.,No. 07-35091.,No. 07-35088.,No. 07-35085.,No. 07-35094.,06-35855.,06-36092.,07-35013.,07-35023.,07-35082.,07-35084.,07-35085.,07-35086.,07-35087.,07-35088.,07-35089.,07-35090.,07-35091.,07-35092.,07-35093.,07-35094.,07-35884.,07-35097.
Citation516 F.3d 1106
PartiesCharles ARRINGTON, Petitioner-Appellant, v. Charles DANIELS, Warden Sheridan FCI; Bureau of Prisons, Respondents-Appellees. Ismael Rodriguez, Petitioner-Appellant, v. Charles Daniels, Warden, Respondent-Appellee. Antwane Burrise, Petitioner-Appellant, v. Charles Daniels, Warden, Respondent-Appellee. Mick Williams, Petitioner-Appellant, v. Charles A. Daniels, Warden; Bureau of Prisons, Respondents-Appellees. Dominique E. Jimerson, Petitioner-Appellant, v. Charles A. Daniels, Warden; Bureau of Prisons, Respondents-Appellees. Richard E. Sturdevant, Petitioner-Appellant, v. Charles A. Daniels, Warden; Bureau of Prisons, Respondents-Appellees. Gregory Villafranco, Petitioner-Appellant, v. Charles A. Daniels, Warden; Bureau of Prisons, Respondents-Appellees. Octabian J. Riley, Petitioner-Appellant, v. Charles A. Daniels, Warden, FCI Sheridan, Respondent-Appellee. Alvin George Walker, Petitioner-Appellant, v. Charles A. Daniels, Warden, Respondent-Appellee. Norman Aguilar, Jr., Petitioner-Appellant, v. Charles A. Daniels, Warden, Sheridan Correctional Institution, Respondent-Appellee. Handi Ibrahim, Petitioner-Appellant, v. Charles A. Daniels, Warden, Sheridan Correctional Institution, Respondent-Appellee. Steven Raj, Petitioner-Appellant, v. Charles A. Daniels, Warden, Respondent-Appellee. Theodore Vanderhoof, Petitioner-Appellant, v. Charles A. Daniels, Warden, Respondent-Appellee. Juan Delocha Vaughn, Petitioner-Appellant, v. Charles Daniels, Warden; Bureau of Prisons, Respondents-Appellees. Milton Thomas, Petitioner-Appellant, v. Charles Daniels, Warden; Bureau of Prisons, Respondents-Appellees. Benny Ray Martin, Petitioner-Appellant, v. Charles Daniels, Warden; Bureau of Prisons, Respondents-Appellees. Eric Sisco, Petitioner-Appellant, v. Charles Daniels, Warden; Bureau of Prisons, Respondents-Appellees. Albert Chung Huh, Petitioner-Appellant, v. Charles Daniels, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Stephen R. Sady, Esq., Chief Deputy Federal Public Defender, Portland, OR, for the petitioners.

Karin J. Immergut, Esq., Kelly A. Zusman, Esq., United States Department of Justice, Portland, OR, for the respondent.

Before: STEPHEN REINHARDT, CYNTHIA HOLCOMB HALL, and MILAN D. SMITH, JR., Circuit Judges.

REINHARDT, Circuit Judge:

This case is the most recent in a series of challenges to the Bureau of Prisons' ("Bureau" or "BOP") implementing regulation governing early release of prisoners who successfully complete a residential substance abuse program. The relevant statute provides that the Bureau may reduce by up to one year the prison term of an inmate convicted of a nonviolent felony if the prisoner successfully completes such a program. 18 U.S.C. § 3621(e)(2)(B). The Bureau's implementing regulation categorically excludes from eligibility for early release under the law those whose "current offense is a felony.... [t]hat involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives[.]" 28 C.F.R. § 550.58(a)(1)(vi)(B)(2000). The question presented is whether the Bureau of Prisons violated Section 706(2)(A) of the Administrative Procedure Act ("APA") when it promulgated this regulation. We hold that it did.

I. Factual and Procedural Background

Title 18 U.S.C. § 3621 governs the imprisonment of persons convicted of federal crimes. In 1990, Congress amended the statute by directing the Bureau of Prisons to provide residential substance abuse treatment programs for prisoners determined to have a treatable condition of substance addiction or abuse. Crime Control Act of 1990, Pub.L. No. 101-647, § 2903, 104 Stat. 4789, 4913 (codified at 18 U.S.C. § 3621(b)). Four years later, in response to under-utilization of treatment programs, Congress again amended the statute to provide an early release incentive to encourage prisoner participation. Violent Crime Control and Law Enforcement Act of 1994, 103 Pub.L. No. 322, § 32001, 108 Stat. 1796, 1896-97. The statute provides that the Bureau may reduce by up to one year the sentence of a prisoner who (1) was convicted of a nonviolent offense and (2) successfully completes a program of residential substance abuse treatment. 18 U.S.C. § 3621 (e)(2)(B).

In May 1995, the Bureau promulgated its first rule and corresponding regulation detailing procedures to determine eligibility for early release under § 3621(e). 60 Fed.Reg. 27692 (May 25, 1995); 28 C.F.R. § 550.58 (1995). In defining "non-violent offense," the Bureau relied on the definition of "crime of violence" contained in 18 U.S.C. § 924(c)(3).1 The regulation rendered ineligible for early release those "inmates whose current offense is determined to be a crime of violence as defined in 18 U.S.C. § 924(c)(3)." 28 C.F.R. § 550.58 (1995). In a program statement issued several months later, the Bureau purported to further restrict eligibility under the statute by categorizing as "crimes of violence" firearms convictions under 18 U.S.C. § 922(g) as well as drug trafficking convictions under 21 U.S.C. § 841 or § 846, if the offender received a two-level enhancement for weapons possession under United States Sentencing Commission Guidelines Manual § 2D1.1(b)(1). Bureau of Prisons Program Statement No. 5162.02, §§ 7, 9 (July 24, 1995).2

We subsequently held that neither of these disqualifications was for a "crime[ of violence" under the statutory definition contained in § 924(e)(3). See Davis v. Crabtree, 109 F.3d 566, 568-70 (9th Cir. 1997); Downey v. Crabtree, 100 F.3d 662, 666-70 (9th Cir.1996). We concluded that the Bureau must consider eligible for early release as nonviolent offenders those with convictions under 18 U.S.C. § 922(g) as well as those with convictions under 21 U.S.C. § 841 whether or not they received sentencing enhancements for weapons possession. See Davis, 109 F.3d at 569; Downey, 100 F.3d at 668. Four other circuits agreed. See Fristoe v. Thompson, 144 F.3d 627, 631 (10th Cir.1998) (holding impermissible the Bureau's interpretation of § 3621(e) as precluding from eligibility for early release prisoners who received sentence enhancements for nonviolent offenses); Byrd v. Hasty, 142 F.3d 1395, 1397-98 (11th Cir.1998) (same); Martin v. Gerlinski, 133 F.3d 1076, 1079-80 (8th Cir. 1998) (same); Roussos v. Menifee, 122 F.3d 159, 162-64 (3d Cir.1997) (same). Three circuits reached the opposite conclusion. See Pelissero v. Thompson, 170 F.3d 442, 447 (4th Cir.1999) (holding Bureau's definition of crime of violence was permissible); Parsons v. Pitzer, 149 F.3d 734, 737-39 (7th Cir.1998) (same); Venegas v. Henman, 126 F.3d 760, 763 (5th Cir.1997) (same).

In response to the lack of consistency arising from the varying definitions of a nonviolent offense, the Bureau changed course. The agency removed its reference to § 924(c)(3) from the regulation and abandoned its attempt to determine eligibility based on an interpretation of the phrase "nonviolent offense." Instead, the Bureau issued an interim rule that asserted the agency's discretionary authority to determine eligibility for early release under § 3621(e). 62 Fed.Reg. 53690 (Oct. 15, 1997) ("1997 interim rule"). The Bureau then exercised its discretion to narrow the class of prisoners eligible for early release beyond "nonviolent" offenders. The 1997 interim rule thereby purported to accomplish by different means what the Bureau set out to achieve in its 1995 program statement: the categorical exclusion from eligibility for early release of those prisoners convicted of an offense "involv[ing] the carrying, possession, or use of a firearm or other dangerous weapon or explosives." 62 Fed.Reg. at 53690; 28 C.F.R. § 550.58(a)(vi)(B) (1998).

Litigation once again ensued. This time challenges focused on whether the categorical exclusion rule was a permissible exercise of the agency's discretion. Two circuit courts, including our own, concluded that the 1997 interim rule was a permissible exercise of the Bureau's discretion to narrow the class of prisoners eligible for early release under § 3621(e). See Bellis v. Davis, 186 F.3d 1092, 1095 (8th Cir. 1999); Bowen v. Hood, 202 F.3d 1211, 1220 (9th Cir.2000). Two circuit courts reached the contrary result. See Ward v. Booker, 202 F.3d 1249, 1256-57 (10th Cir.2000); Kilpatrick v. Houston, 197 F.3d 1134, 1135 (11th Cir.1999). The Supreme Court granted certiorari to resolve the circuit split. In Lopez v. Davis, the Court upheld the validity of the 1997 interim rule, reasoning that the Bureau permissibly exercised the discretion afforded the agency by the statute to narrow the class of prisoners eligible for early release. 531 U.S. 230, 239-41, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001). Four years later, we struck down the rule on procedural grounds, holding that the Bureau failed to comply with the APA's notice and comment provisions. Paulsen v. Daniels, 413 F.3d 999, 1004 (9th Cir.2005) (holding "[t]he Bureau plainly violated [Section 553 of] the APA in its promulgation of the 1997 interim regulation").

In December 2000, the Bureau promulgated a final rule. The final rule, identical to the 1997 interim rule, relied on the Bureau's "discretion to narrow the class of prisoners eligible for early release by...

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