Cort v. Crabtree
| Decision Date | 19 May 1997 |
| Docket Number | 96-36231,96-36228,Nos. 96-36226,s. 96-36226 |
| Parties | 97 Cal. Daily Op. Serv. 3735, 97 Daily Journal D.A.R. 6363 Simon CORT, Petitioner-Appellant, v. Joseph CRABTREE, Warden, Federal Correctional Institute, Sheridan, Oregon, Respondent-Appellee. Don J. MARTIN, Petitioner-Appellant, v. Joseph CRABTREE, Warden, Federal Correctional Institute, Sheridan, Oregon, Respondent-Appellee. Barry SULLENGER, Petitioner-Appellant, v. Joseph CRABTREE, Warden, Federal Correctional Institute, Sheridan, Oregon, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, Oregon, for petitioners-appellants.
Thomas M. Gannon, United States Department of Justice, Washington, D.C., for respondent-appellee.
Appeals from the United States District Court for the District of Oregon, Ancer L. Haggerty, District Judge, Presiding. D.C. Nos. CV 96-1424-HA, CV 96-1213-HA, CV 96-1377-HA.
Before: WRIGHT, REINHARDT, and THOMAS, Circuit Judges.
Appellants Simon Cort, Don Martin, and Barry Sullenger are federal prisoners
serving sentences for unarmed bank robbery in violation of 18 U.S.C. § 2113(a). The Bureau of Prisons initially determined that they were statutorily eligible for a sentence reduction under 18 U.S.C. § 3621(e)(2)(B), which authorizes it to grant a sentence reduction of up to one year to prisoners convicted of "nonviolent offenses" who complete a substance abuse treatment program. Before appellants had completed the treatment program, the Bureau altered its interpretation of "nonviolent offenses" for purposes of § 3621(e)(2)(B) and, relying upon its new interpretation, informed appellants that they were no longer eligible for a sentence reduction on the ground that they had been convicted of a crime of violence. We hold that the Bureau erred in applying its new interpretation of § 3621(e)(2)(B) retroactively, and that appellants are therefore eligible for discretionary sentence reduction.
In 1990, Congress enacted amendments to 18 U.S.C. § 3621 requiring the Bureau of Prisons to give every federal prisoner with a substance abuse problem the opportunity to participate in a treatment program while in custody. 18 U.S.C. § 3621(b),(e). In order to encourage prisoners to seek treatment, § 3621(e)(2)(B) gives the Bureau authority to reduce, by up to one year, the sentence of prisoners "convicted of a nonviolent offense" who successfully complete a treatment program:
(B) Period of custody.--The 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.
18 U.S.C. § 3621(e)(2)(B) (emphasis added). Pursuant to these provisions, the Bureau offers a 500-hour comprehensive substance abuse treatment program.
Appellants Cort, Sullenger, and Martin are each serving federal sentences for unarmed bank robbery in violation of 18 U.S.C. § 2113(a). Cort's release date, adjusted for good conduct but without any sentence reduction, is currently set for June 4, 1998. Sullenger's release date, similarly adjusted, is currently set for October 2, 1997, and Martin is scheduled to be released on June 22, 1997. Each appellant voluntarily entered the Bureau's comprehensive 500-hour program: Cort enrolled on March 30, 1995, Sullenger on March 20, 1995, and Martin on May 11, 1995. They claim, and the government does not dispute, that they entered the program in the belief that the offense of which they were convicted did not render them ineligible for a sentence reduction.
On May 25, 1995, the Bureau published a regulation that established certain eligibility criteria for a sentence reduction under § 3621(e). See 28 C.F.R. § 550.58 (1995). Both in its initial form and as amended in 1996, the regulation provided, inter alia, that inmates "whose current offense is determined to be a crime of violence as defined in 18 U.S.C. 924(c)(3)" 1 are ineligible, but it did not address specifically the eligibility of inmates serving sentences for bank robbery, armed or otherwise.
On July 11, 1995, the Bureau notified Cort and Sullenger that they were each eligible for sentence reduction under 18 U.S.C. § 3621(e). Each of these determinations, entitled a "Notification of Inmate Eligibility for 18 U.S.C. § 3621 E Release Date," was initialed by a case manager and a Drug Abuse Program staff member, and signed by the Drug Abuse Program Coordinator. The determination informed the recipient that "this decision may be appealed through the Administrative Remedy Process."
On July 24, 1995--shortly after it had found Cort and Sullenger eligible, but before it had ruled on Martin's eligibility--the Bureau issued Program Statement 5162.02 in order to "implement" provisions such as § 3621(e) that make reference to "nonviolent offense" and "crime of violence." This directive defined violations of 18 U.S.C. § 2113(a)--namely, bank robbery--as a type of offense that "may or may not have involved the use, attempted use, or threat of force, or presented the substantial risk that force might be used." It instructed Bureau officials to determine whether a particular offense was "non-violent" by looking to the "Specific Offense Characteristics" section of the prisoner's pre-sentence report.
On October 3, 1995, the Bureau notified Martin that he was ineligible for a sentence reduction on the apparent basis of an unsubstantiated allegation in his pre-sentence report that he had threatened to use a gun during one of his offenses. Martin sought and received from the district judge who had sentenced him an order explaining that there was "no evidence to support a finding that [Martin] threatened the use of a gun during any of the robberies at issue." In response to this clarification, the Bureau notified Martin on January 18, 1996 that he was indeed eligible for a sentence reduction under § 3621(e).
On April 23, 1996, the Bureau issued Change Notice CN-01, the stated purpose of which was to "clarify" the definition of "crimes of violence" used in Program Statement 5162.02. The Change Notice explicitly reversed the Program Statement with respect to the eligibility of bank robbers, armed or otherwise:
With regard to the specific crime of bank robbery, the offense should be considered a crime of violence pursuant to [18 U.S.C.] section 924(c)(3) since, due to the circumstances surrounding bank robberies, the offense involves an explicit or implicit threat of force and thus has as an element the "threatened use of physical force against the person or property of another."
Approximately two weeks later, each appellant received notice of a "Change in Drug Abuse Treatment Program Status." Cort and Sullenger received notices that read in relevant part:
Change Notice CN-01 to PS 5162.02 Definition of Term "Crimes of Violence" has defined your current offense as a crime of violence. Thus, you are presently viewed as ineligible for early release under 18 U.S.C. 3621(e). Your signature indicates that this issue has been discussed with you.
Martin's notice contained a similar explanation:
As per Change Notice (CN-01) to PS 5162.02, Mr. Martin's instant offense of bank robbery is now considered violent. Thus, he is ineligible for early release under 18 U.S.C. 3621E.
Appellants refused to sign their respective notices, completed the 500-hour treatment program, and sought habeas corpus relief in district court under 28 U.S.C. § 2241. They argued, inter alia, that the doctrines of promissory and equitable estoppel precluded the Bureau from revoking their eligibility for sentence reduction under § 3621(e); that they had been convicted of "nonviolent offenses" within the meaning of § 3621(e) and were therefore eligible for sentence reduction; that the Bureau lacked statutory authority to reclassify their offenses retroactively by way of the Change Notice; and that by its own terms, the Change Notice should not have been applied retroactively. The district court rejected all of these contentions. Martin v. Crabtree, 945 F.Supp. 215, 217-20 (D.Or.1996). On appeal, appellants challenge the district court's rulings on their estoppel and retroactivity arguments. Because all three appellants are scheduled for release within a year, a one-year sentence reduction would result in their immediate release.
Appellants raise three retroactivity challenges to the Bureau's actions in this case. First, relying upon the Supreme Court's decision in Bowen v. Georgetown University Hospital, 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988), they argue that the Bureau lacked the authority to apply the Change Notice to them retroactively because In Bowen, various hospitals challenged the efforts of the Department of Health and Human Services to recoup Medicare payments pursuant to a rule that had previously been struck down for failure to comply with proper rulemaking procedures, but that had since been properly readopted by the agency. Bowen, 488 U.S. at 206-07, 109 S.Ct. at 470-71. Elaborating upon the time-honored principle that "[r]etroactivity is not favored in the law," id. at 208, 109 S.Ct. at 471, the Court set forth three principles for determining whether an agency may apply a given rule retroactively. First, it observed that courts must determine as a threshold matter whether retroactive rulemaking exceeds the agency's statutory grant of rulemaking authority. Id. Second, it set forth a rule of statutory construction, applicable to both congressional enactments and agency rules, that strongly disfavors retroactivity: "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Id. Finally, combining the first two principles, it explained that...
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