Delancy v. Crabtree

• Decision Date: 04 August 1997
• Docket Number: No. 97-35270,97-35270
• Citation: 131 F.3d 780
• Parties: 97 Cal. Daily Op. Serv. 8715, 97 Daily Journal D.A.R. 14,137 Ned Preston DELANCY, Petitioner-Appellant, v. Joseph CRABTREE, Warden, FCI Sheridan; Edward F. Reilly, Chairman, U.S. Parole Commission, Respondents-Appellees. . Submitted *
• Court: U.S. Court of Appeals — Ninth Circuit

Page 780

131 F.3d 780

97 Cal. Daily Op. Serv. 8715, 97 Daily Journal

D.A.R. 14,137

Ned Preston DELANCY, Petitioner-Appellant, v. Joseph CRABTREE, Warden, FCI Sheridan; Edward F. Reilly Chairman, U.S. Parole Commission, Respondents-Appellees.

No. 97-35270.

United States Court of Appeals Ninth Circuit.

Submitted ^* Aug. 4, 1997.

Decided Nov. 19, 1997.

Stephen R. Sady, Chief Deputy Federal Public Defender, and Wendy Rae Willis, Assistant Federal Public Defender, Portland, Oregon, for petitioner-appellant.

Thomas M. Gannon, United States Department of Justice, Washington, DC, for respondents-appellees.

Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. No. CV-96-01837-ALH.

Before: HALL and T. G. NELSON, Circuit Judges; and WINMILL, District Judge. ^**

CYNTHIA HOLCOMB HALL, Circuit Judge.

Federal prisoner Ned Delancy appeals the district court's denial of his petition for writ of habeas corpus. Delancy is serving a 48 to 60 month term for violating the conditions of his special parole. He contends that the Bureau of Prisons and the Parole Commission wrongfully denied him a reduction in his sentence for completing a 500-hour residential drug and alcohol program under 18 U.S.C. § 3621(e)(2)(B) ("the incentive provision"). The principal issue raised in Delancy's appeal is whether the incentive provision applies to prisoners sentenced before the Sentencing Reform Act of 1984 came into effect.

We have jurisdiction of Delancy's timely appeal under 28 U.S.C. §§ 1291 and 2253, and we affirm.

I. Background

A. Delancy's Criminal History

Ned Delancy was convicted in 1985 of possessing cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a). He was sentenced to 15 years imprisonment and a lifetime term of special parole. Delancy was paroled in 1990. The Parole Commission ("the Commission") revoked his parole on January 4, 1994, after determining that he had committed two cocaine distribution offenses, left the district without permission, associated with known criminals, committed grand theft by forgery, and made threatening telephone calls. Delancy is currently serving a term of 48 to 60 months.

B. Delancy's Application for Sentence Reduction

On May 11, 1995, Delancy chose to enter the Bureau of Prisons' ("Bureau") 500-hour Residential Drug Abuse Program. Upon completing the program and receiving a certificate of completion on June 4, 1996, Delancy applied for a sentence reduction under the incentive provision, 18 U.S.C. § 3621(e)(2)(B). That provision, enacted in the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, 108 Stat. 1796, provides:

(2) Incentive for prisoners' successful completion of [residential substance abuse] 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) (supp.1997).

While Delancy was in the program, the Bureau had determined that, pursuant to its regulations, it would not authorize a reduction in his sentence under Section 3621's incentive provision because he was a parole-eligible prisoner. 28 C.F.R. § 550.58 provides in relevant part:

An inmate who completes a residential drug abuse treatment program during his or her current commitment may be eligible for early release by a period not to exceed 12 months ... unless the inmate is ... eligible for parole....

28 C.F.R. § 550.58 (1995). ¹ Once the Bureau determined that Delancy had completed the drug treatment program, it referred his request for a sentence reduction to the Parole Commission. ²

The Commission considered Delancy's request under 28 C.F.R. § 2.60, which had been recently amended in response to Section 3621's incentive provision. The amended Section 2.60 provides that the Commission will promptly review a report of successful completion of a substance abuse program for possible presumptive parole date advancement under its preexisting "superior program achievement" advancement scheme. 28 C.F.R. § 2.60 (1997); see also 61 Fed.Reg. 4350 (Feb. 6, 1996). Under that scheme, Delancy could have received at most a seven-month advancement. See 28 C.F.R. § 2.60(e). The Commission declined to give Delancy any advancement, however, relying on its doubts that Delancy had a significant history of drug abuse, as well as its concern that Delancy was at significant risk of future criminal activity due to his expressed desire for a luxurious lifestyle.

The Commission's regulation had not always been so narrow. Several days after Delancy entered the treatment program, the Commission issued a statement that it proposed to take into account the incentive provision in Section 3621 by amending its superior program achievement rules. Under that scheme, a prisoner could be considered for a special advancement of his presumptive parole date of up to twelve months, in addition to any other advancements granted under the superior program achievement scheme. See 60 Fed.Reg. 26010 (May 16, 1995). ³ It then formally issued the interim rule on August 5, 1995, setting its effective date as October 2, 1995. See 60 Fed.Reg. 40094-02 (Aug. 7, 1995). Ultimately, the Commission rejected this interim rule in favor of the more restrictive rule, which became effective on March 7, 1996.

C. The District Court's Ruling on Delancy's Habeas Petition

Delancy filed a federal habeas petition seeking review of the Bureau's and the Commission's decisions. The district court denied his petition. Delancy v. Crabtree, 955 F.Supp. 1226 (D.Or.1997). It ruled that the Bureau properly deferred the decision of Delancy's eligibility for a reduction to the Commission. When Congress amended 18 U.S.C. § 3621, the court explained, it did not intend to authorize the Bureau to make early release determinations for pre-guidelines prisoners as well as prisoners sentenced under the guidelines. Instead, the decision whether to reduce the sentence of a pre-guidelines prisoner remained with the Commission as part of its discretionary authority to grant or deny parole under 18 U.S.C. § 4203(b). Id. at 1228.

In support of its decision, the court noted that it found no authority to indicate that Congress intended the incentive provision in Section 3621 to override the Parole Commission's authority to make parole decisions for pre-guidelines prisoners under the Parole Commission Reorganization Act. Id. It also reasoned that the two groups of prisoners logically ought to be treated differently. Guidelines prisoners need the incentive provided in the drug treatment statute since they are ineligible for early release on parole; pre-guidelines prisoners are already eligible for early release on parole or early release pursuant to "good time" credits. Moreover, the court observed, pre-guidelines prisoners still could obtain an advanced release date for participating in a drug treatment program under the Commission's existing superior program achievement advancement scheme. Id. at 1229.

Finally, the court ruled that the Commission did not violate retroactivity doctrine by applying its final rule addressing the incentive provision in Section 3621 rather than its interim rule, since the Commission does not determine a prisoner's eligibility for a sentence reduction until he completes the drug treatment program. Id.

This appeal followed.

II. Standard of Review

The district court's denial of Delancy's habeas petition is reviewed de novo. Downey v. Crabtree, 100 F.3d 662, 663-64 (9th Cir.1996).

III. Pre-Guidelines Inmates' Eligibility For the Incentive Provision, 18 U.S.C. § 3621(e)

Delancy argues that in 28 C.F.R. § 550.58, the Bureau of Prisons misconstrued Section 3621's incentive provision to give it the authority to reduce only the sentences of prisoners sentenced under the guidelines, not the sentences of pre-guidelines prisoners. Because the statute plainly applies only to post-guidelines prisoners, we reject Delancy's argument.

A. Standard of Review

We review the Bureau's interpretation of 18 U.S.C. § 3621 de novo. See Alaska Wildlife Alliance v. Jensen, 108 F.3d 1065, 1069 (9th Cir.1997). The express language of the statute or other indicia of clear congressional intent control. Id. (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984)); see also 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, 1401-02, 118 L.Ed.2d 52 (1992)).

However, if the statute is silent or ambiguous as to a particular issue, we defer to the Bureau's interpretation of the statute in 28 C.F.R. § 550.58. Review is limited to whether the Bureau's interpretation constitutes a permissible construction of the statute. Chevron, 467 U.S. at 843, 104 S.Ct. at 2781-82; Conlan v. United States Dept. of Labor, 76 F.3d 271, 274 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 431, 136 L.Ed.2d 330 (1996). Because Section 550.58 was promulgated subject to the rigors of the Administrative Procedure Act, it is owed full Chevron deference. Jacks v. Crabtree, 114 F.3d 983, 984-85 & n. 1 (9th Cir.1997).

B. The Plain Meaning of 18 U.S.C. § 3621

We " 'determine the plain meaning of a statute by looking to the particular statutory language at issue, as well as the language and design of the statute as a whole.' " Conlan, 76 F.3d at 274 (quoting Seldovia Native Ass'n, Inc. v. Lujan, 904 F.2d 1335, 1341 (9th Cir.1990)) (internal quote omitted).

Section 3621's "Effective Date" note is dispositive. It explicitly limits the entire statute to post-guidelines prisoners by referring to the "Effective Date" note applicable to the entire Sentencing Reform...