Egan v. Hawk
| Decision Date | 25 November 1997 |
| Docket Number | No. CIV. 4-96-284.,CIV. 4-96-284. |
| Citation | 983 F.Supp. 858 |
| Parties | Timothy S. EGAN, Petitioner, v. Kathleen M. HAWK, Director of Federal Bureau of Prisons; Ed Crosley, Administrator National Inmate Appeals; Patrick R. Kane, Regional Director, Federal Bureau Prisons; and Bill Hedrick, Warden, Federal Medical Center; in their official capacities as employees of the Federal Bureau of Prisons and in their personal capacities as individuals, Respondents. |
| Court | U.S. District Court — District of Minnesota |
Timothy S. Egan, pro se.
Patricia R. Cangemi, U.S. Atty. Office, Minneapolis, MN, for Defendants.
Timothy Egan filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2241, challenging the Bureau of Prisons' ("BOP") decision to deny him a one-year reduction of his sentence. This matter is before the Court on Egan's objections to the Report and Recommendation of the Magistrate Judge recommending denial of the petition.
The Court has reviewed de novo the objections to the Report and Recommendation of the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.1(b)(2). Because the BOP's action contradicts the plain language of 18 U.S.C. § 3621(e)(2)(B) and defies the BOP's own regulation, the Court rejects the Report and Recommendation and remands this case to the BOP for further consideration consistent with this opinion.
Egan was convicted of possession with intent to distribute methamphetamine and conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841 and 846. At the time of his arrest, the police had seized from Egan's possession several firearms, almost sixty grams of methamphetamine, a cutting agent, and a triple balance beam. On September 1, 1992, Egan was sentenced in the United States District Court for the District of Nebraska. The court applied a two-level sentence enhancement authorized under the United States Sentencing Guidelines for offenses involving drugs and possession of a dangerous weapon. See U.S.S.G. § 2D1.1(b)(1) (1995). Egan was sentenced to 188 months of imprisonment on each count, to be served concurrently. His projected release date is January 2, 2006.
While in federal custody, Egan completed a Residential Drug Abuse Program ("RDAP"). He subsequently requested that the BOP reduce his sentence by one year as authorized by Congress in the Violent Crime Control and Law Enforcement Act of 1994, 18 U.S.C. § 3621(e)(2)(B) (1996). On July 13, 1995, the BOP denied Egan eligibility for a sentence reduction based on the BOP's categorical exclusion from consideration for sentence reduction inmates who, when sentenced, received a two-level enhancement for possession of a dangerous weapon.
On April 1, 1996, Egan filed a Petition for a Writ of Habeas Corpus. He sought judicial review of the BOP's decision denying him an incentive award based on his successful completion of the RDAP. Petitioner argues that, in light of his completion of that program, his term of imprisonment should be reduced by not more than one year pursuant to § 3621(e)(2)(B).
After concluding that the Court had jurisdiction over Egan's petition,1 the Magistrate Judge recommended denying Egan's request for relief. The Magistrate Judge relied on the reasoning provided by the district court in Sesler v. Pitzer, 926 F.Supp. 130 (D.Minn.1996), aff'd, 110 F.3d 569 (8th Cir.1997).2 In Sesler, the petitioner had pled guilty to the crime of using a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). After completing more than one drug program implemented pursuant to 18 U.S.C. § 3621(b) and being denied a twelve-month incentive award, the petitioner filed his habeas corpus action.
The district court in Sesler rejected the petitioner's arguments that the BOP had acted contrary to his protectable liberty interests. The court found that the implementing statute for the drug treatment incentive program does not allow review under the Administrative Procedures Act ("APA"). See Sesler, 926 F.Supp. at 132 (analyzing 18 U.S.C. § 3625 (1996)). Nevertheless, the court reviewed the merits of Sesler's petition. The court found ultimately that the BOP did not act in violation of the Constitution or a congressional directive in denying Sesler a sentence reduction — for nonviolent prisoners who have successfully completed a drug rehabilitation program — because the BOP did not exceed its discretion in determining that Sesler was convicted of a violent offense. Id. at 132-33. The court also concluded that the petitioner did not have a liberty interest in a reduction in his sentence. Id. at 133.
There is, however, an important distinction between Sesler and the instant case. In Sesler, the petitioner was convicted of a drug-trafficking offense involving the use of a firearm, a crime clearly falling within Congress's definition of a "crime of violence." See 18 U.S.C. § 924(c)(3). Here, Egan was convicted of two drug offenses that did not involve the use of a firearm; the presence of firearms at the location of his arrest was simply a factor in determining his sentence. Although the Magistrate Judge recognized that the Ninth Circuit's analysis in the Downey v. Crabtree, 100 F.3d 662, 668 (9th Cir. 1996), suggests that this distinction is dispositive, the Magistrate Judge declined to adopt the reasoning of the Downey court.3
Since the Magistrate Judge issued his recommendation in this case, the Third Circuit has issued a decision which largely adopts the analysis in Downey. See Roussos v. Menifee, 122 F.3d 159 (3rd Cir.1997). The Roussos decision persuades this Court that Sesler is inapposite in this context.
In Roussos, as in this case, the BOP had denied a habeas petitioner a sentence reduction under 18 U.S.C. § 3621(e)(2)(B) because the petitioner's sentence following a drug conviction had been enhanced due to the presence of weapons. 122 F.3d at 160. The Roussos court concluded that, by using sentencing factors in determining whether or not a prisoner was "convicted of a nonviolent offense" under § 3621(e)(2)(B), the BOP had contradicted the plain language of the statute and its own regulation. Id. at 163. In so holding, the court distinguished Sesler, pointing out that Sesler was convicted of using a firearm during the commission of the offense rather than merely sentenced to serve more time due to the presence of firearms. See id. at 162. The court therefore invalidated the BOP's determination. Id.
Based on the following analysis, which is consistent with the reasoning set forth in Roussos and Downey, this Court finds that Egan's petition should be granted in part, and this matter should be remanded to the BOP for further determinations consistent with this opinion.
Relying on Sesler, the Magistrate Judge found that determinations made by the BOP are not reviewable under the APA. See Sesler, 926 F.Supp. at 132. It is true that Congress exempted BOP decisions carrying out § 3621(e)(2)(B) from judicial review under the APA. See 18 U.S.C. § 3625 (). However, as the Sesler court implicitly recognized, this Court may always review an agency interpretation of federal statute and overturn that interpretation if it is based on an impermissible construction of the statute. See, e.g., Wajda v. United States, 64 F.3d 385, 388 (8th Cir.1995) (); see also Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1994) (); National R.R. Passenger Corp. v. Boston and Maine Corp., 503 U.S. 407, 417, 112 S.Ct. 1394, 1401, 118 L.Ed.2d 52 (1992) (); Fowler v. United States Parole Comm'n, 94 F.3d 835, 837 (3rd Cir.1996) ().4
Also, some circuits have indicated that courts need only accord "some deference" to an agency interpretation contained in a Program Statement. See, e.g., Roussos, 122 F.3d at 163; Koray v. Sizer, 21 F.3d 558, 562 (3rd Cir.1994) (), rev'd on other grounds sub nom., Reno v. Koray, 515 U.S. 50, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995). Moreover, courts have recognized that a provision of a Program Statement may be rejected if it contradicts another BOP regulation. See, e.g., National Family Planning v. Sullivan, 979 F.2d 227, 234 (D.C.Cir.1992) (); see also Roussos, 122 F.3d at 163 ().
Thus, although a Program Statement is not reviewable under the APA and is entitled to some deference, this Court has the authority to reject it if it is inconsistent with the plain language of a statute or clearly defies a BOP regulation.
After completion of the RDAP, Egan...
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