Guido v. Booker, No. 98-3266-RDR.

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Writing for the CourtRogers
Citation37 F.Supp.2d 1289
PartiesChristopher Lamar GUIDO, Petitioner, v. J.W. BOOKER, Jr., Respondent.
Docket NumberNo. 98-3266-RDR.
Decision Date18 February 1999
37 F.Supp.2d 1289
Christopher Lamar GUIDO, Petitioner,
v.
J.W. BOOKER, Jr., Respondent.
No. 98-3266-RDR.
United States District Court, D. Kansas.
February 18, 1999.

Page 1290

Christopher Lamar Guido, Leavenworth, KS, pro se.

Mary K. Ramirez, Office of United States Attorney, Topeka, KS, for respondent.

MEMORANDUM AND ORDER

ROGERS, Senior District Judge.


This is a petition for writ of habeas corpus, 28 U.S.C. § 2241, filed by an inmate of the Federal Prison Camp, Leavenworth, Kansas. Jurisdiction is also alleged under 28 U.S.C. § 1331. The issue to be resolved is whether a prisoner convicted of a nonviolent drug offense, whose sentence was enhanced for possession of a firearm, was legally deemed by the Director of the Bureau of Prisons to be ineligible to receive the sentence reduction made available under 18 U.S.C. § 3621(e)(2)(B) to prisoners convicted of "nonviolent offenses."

An Order to Show Cause issued. Respondents filed an Answer and Return; and petitioner filed a brief in response, a motion objecting to exhibits, a Reply, and a motion to supplement record with the sentencing transcript. Having considered all the pleadings and attachments filed together with the relevant authorities, the court makes the following findings and order.

The court finds that petitioner's motion objecting to respondent's evidence (Doc. 5) is without merit and should be denied. The court further finds that petitioner's Motion for Leave to Supplement the Record (Doc. 8) should be granted, and the attached sentencing transcript is accepted as part of the record.

FACTS

The crucial facts are not in dispute. Petitioner was sentenced on June 14, 1996 to a term of sixty months imprisonment for Attempt to Possess With the Intent to

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Distribute Cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. At sentencing, the judge applied a two-level guideline enhancement of his offense level pursuant to U.S .S.G. § 2D1.1(b)(1) for "possession of a dangerous weapon" based upon Guido having a loaded handgun on his person at the time of his arrest1. Doc. 8, Attachment at 34.

During his incarceration on October 27, 1997, Guido began participation in a "Comprehensive Drug Abuse Treatment Program" (DATP) and successfully completed the residential phase on July 1, 1998. On October 28, 1997, Guido was "officially notified" that he was not eligible for early release consideration. A form entitled "Notice of Residential Drug Abuse Program Qualification and Provisional 3621(e) Eligibility" was issued to Guido from the Drug Treatment Specialist marked "does not" appear eligible. Doc. 1, Exhibit A; Doc. 4, Exhibit 5. The reasons listed were: "Crime of violence as contained in the Categorization of Offenses Program Statement." Id. Guido requested re-evaluation from the drug program coordinator on February 23, 1998. This request was denied on February 24, 1998, on the ground that Guido remained "ineligible for the 3621(e) early release" because of his "2 point enhancement for possession of a dangerous weapon." Guido did not file a BP-9, 10 or 11 challenging the denial of eligibility. He filed this action on August 18, 1998. Respondent exhibits and petitioner admits that administrative remedies have not been exhausted. Guido's mandatory release date is March 15, 2000, and he alleges that he would be entitled to immediate release to a half-way house if he were to receive the sentence reduction.

CLAIMS

Petitioner challenges the decision of the Bureau of Prisons as contrary to and in excess of the plain statutory language of 18 U.S.C. § 3621(e)(2)(B); an improper retroactive application to him of amendments of the BOP's rules; and contrary to the recent opinion of the Tenth Circuit Court of Appeals in Fristoe v. Thompson, 144 F.3d 627 (1998).

EXHAUSTION OF ADMINISTRATIVE REMEDIES

Respondent shows that petitioner has failed to exhaust his administrative remedies and asserts that this action must be dismissed as a result. Petitioner admits that he did not attempt to resolve this matter by way of the available administrative remedies and asserts it would have been futile and time-consuming. The court finds that Guido has failed to exhaust administrative remedies.

Almost without exception, exhaustion of the BOP's administrative process is required prior to relief being sought in federal court. This court is dissatisfied that Guido failed to pursue the available administrative remedies in the five or more months before he filed this action and in no manner intends to encourage habeas litigants to forego exhaustion upon their own estimation that such remedies would be futile. However, under the particular facts of this case, the court concludes that the exhaustion prerequisite should be waived.

The issues presented by Guido for determination are legal and do not depend on the resolution of factual matters through the development of an administrative record. Moreover, this is a "sufficiently extraordinary case" in which the agency need not be granted an opportunity to correct errors in its proceedings since the BOP, which would conduct any administrative review, promulgated and administers the regulation and program statements at issue and has consistently maintained in

Page 1292

litigation across the country that the policy at issue here is lawful. See Hernandez v. U.S. Parole Commission, 1 F.Supp.2d 1262, 1264 (D.Kan.1998) citing Fultz v. Stratman, 963 F.Supp. 926, 929 (S.D.Cal. 1997). Thus, respondent's arguments that the agency should be allowed to make a factual record, to exercise its expertise, and to correct its own mistakes as well as that the administrative process should not be prematurely interrupted are unpersuasive in this instance. In addition, petitioner is claiming that he is entitled to immediate release and has requested expedited review. The dismissal of this action to require petitioner to exhaust administrative remedies could result in his claim for release becoming moot. More importantly, it is clear from other cases, for example, Scroger v. Booker, 39 F.Supp.2d 1296 (D.Kan.1999), that the BOP has routinely denied the claims raised by petitioner when presented by other inmates on administrative appeal. The court concludes that exhaustion would be futile and is waived in this case.

JUDICIAL REVIEW

A threshold consideration is whether or not this court has jurisdiction. The Administrative Procedure Act's provisions for judicial review of agency action are expressly made inapplicable by 18 U.S.C. § 3625 to the BOP's decisions regarding sentence reduction under § 3621(e). See e.g., LaSorsa v. Spears, 2 F.Supp.2d 550, 558 (S.D.N.Y.1998); Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir.1998); Davis v. Beeler, 966 F.Supp. 483, 489 (E.D.Ky.1997). However, the Tenth Circuit has stated that while § 3625 may preclude the courts from reviewing the BOP's substantive decisions in these cases, it does not prevent the court from interpreting the statute to determine whether the BOP exceeded its statutory authority or violated the Constitution. See Fristoe, 144 F.3d at 630-31; Crawford v. Booker, 156 F.3d 1243, 1998 WL 567963, **1, FN3 (10th Cir.1998) (unpublished); see also Martin, 133 F.3d at 1076. Moreover, through habeas corpus this court may inquire into the legality under federal law of a prisoner's detention. See e.g., Downey v. Crabtree, 100 F.3d 662, 664 (9th Cir.1996); Roussos v. Menifee, 122 F.3d 159, 161, FN3 (3d Cir.1997) (district court jurisdiction under § 2241 and 28 U.S.C. § 1331); see also, Fuller v. Moore, 133 F.3d 914, 1997 WL 791681 (4th Cir.1997, unpublished, per curiam, Table); Venegas v. Henman, 126 F.3d 760, 761 (5th Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1679, 140 L.Ed.2d 817 (1998); Orr v. Hawk, 156 F.3d 651 (6th Cir.1998); Pearson v. Helman, 103 F.3d 133 (7th Cir.1996, unpublished); Sesler v. Pitzer, 110 F.3d 569 (8th Cir.) cert. denied, ___ U.S. ___, 118 S.Ct. 197, 139 L.Ed.2d 135 (1997); Byrd v. Hasty, 142 F.3d 1395, 1396 (11th Cir.1998); LaSorsa, 2 F.Supp.2d at 559. In each of the cited cases the BOP's interpretation of eligibility for sentence reduction under § 3621 was reviewed in a habeas corpus context.

The issues presented are purely legal. Consequently, an evidentiary hearing is not necessary.

ENABLING STATUTE — VCCLEA

The court begins by considering the statute which petitioner claims entitles him to early release, 18 U.S.C § 3621(e)(2). As part of the Crime Control Act of 1990, Congress required the BOP to "make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse." 18 U.S.C. § 3621(b). A few years later, to provide a new incentive to federal prisoners to enroll in and complete the BOP's drug treatment programs, Congress authorized the Bureau under § 3621(e)(2)(B) of the Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA), to reduce the sentences of eligible prisoners who completed a drug treatment program. The VCCLEA, promulgated in November, 1994, provides in pertinent part:

(2) Incentive for prisoners' successful completion of treatment program.

(A) Generally. — Any prisoner who, in the judgment of the Director of the

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[BOP], has successfully completed a program of residential substance abuse treatment ..., shall remain in the custody of the [BOP] under such conditions as the [BOP] deems appropriate....

(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 [BOP], 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). On its face, the statute unambiguously precludes the early release of prisoners convicted of violent offenses and limits reduction to one year or less for other prisoners having completed a drug abuse treatment program. See LaSorsa, 2 F.Supp.2d at...

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7 practice notes
  • Todd v. Scibana, No. 99-71637.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • September 3, 1999
    ...enhancements "abrogates the word `convicted' in Page 784 the statute and exceeds the authority given the BOP." Guido v. Booker, 37 F.Supp.2d 1289, 1301 In the present case, both the warden and the regional director based their decision to exclude petitioner from consideration for early rele......
  • Samples v. Scibana, No. 98-CV-75045-DT.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • October 28, 1999
    ...from eligibility any prisoner whose offense "involved the carrying, possession, or use of a firearm" is invalid). Guido v. Booker, 37 F.Supp.2d 1289, 1300-1302 (D.Kan. 1999) ("This Court is compelled by the rationale in Fristoe to find that the BOP has improperly denied early release to pet......
  • Landry v. Hawk-Sawyer, No. Civ.A. 99-2491(PLF).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • November 22, 2000
    ...the government agreed to remove from its records the notification of Miller as a violent offender. 5. The decision in Guido v. Booker, 37 F.Supp.2d 1289 (D.Kan.1999) was affirmed in 6. The district court decisions in Nelson v. Crabtree, 59 F.Supp.2d 1081 (D.Or.1999) and Williams v. Clark, 5......
  • Williams v. Clark, No. CV98-7610-RC.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • May 21, 1999
    ...out certain criteria under which the BOP would categorically refuse to exercise its discretion to grant early release. Guido v. Booker, 37 F.Supp.2d 1289, 1293 (D.Kan.1999) (citations omitted); LaSorsa v. Spears, 2 F.Supp.2d 550, 557 (S.D.N.Y. 1998). To further interpret the term "crime of ......
  • Request a trial to view additional results
7 cases
  • Todd v. Scibana, No. 99-71637.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • September 3, 1999
    ...enhancements "abrogates the word `convicted' in Page 784 the statute and exceeds the authority given the BOP." Guido v. Booker, 37 F.Supp.2d 1289, 1301 In the present case, both the warden and the regional director based their decision to exclude petitioner from consideration for early rele......
  • Samples v. Scibana, No. 98-CV-75045-DT.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • October 28, 1999
    ...from eligibility any prisoner whose offense "involved the carrying, possession, or use of a firearm" is invalid). Guido v. Booker, 37 F.Supp.2d 1289, 1300-1302 (D.Kan. 1999) ("This Court is compelled by the rationale in Fristoe to find that the BOP has improperly denied early release to pet......
  • Landry v. Hawk-Sawyer, No. Civ.A. 99-2491(PLF).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • November 22, 2000
    ...the government agreed to remove from its records the notification of Miller as a violent offender. 5. The decision in Guido v. Booker, 37 F.Supp.2d 1289 (D.Kan.1999) was affirmed in 6. The district court decisions in Nelson v. Crabtree, 59 F.Supp.2d 1081 (D.Or.1999) and Williams v. Clark, 5......
  • Williams v. Clark, No. CV98-7610-RC.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • May 21, 1999
    ...out certain criteria under which the BOP would categorically refuse to exercise its discretion to grant early release. Guido v. Booker, 37 F.Supp.2d 1289, 1293 (D.Kan.1999) (citations omitted); LaSorsa v. Spears, 2 F.Supp.2d 550, 557 (S.D.N.Y. 1998). To further interpret the term "crime of ......
  • Request a trial to view additional results

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