Gunderson v. Hood, PETITIONER-APPELLANT

• Decision Date: 07 June 2001
• Docket Number: 01-35535,Nos. 00-36102,RESPONDENT-APPELLEE,PETITIONER-APPELLANT,s. 00-36102
• Citation: 268 F.3d 1149
• Parties: (9th Cir. 2001) GARY LEE GUNDERSON,, v. ROBERT A. HOOD, WARDEN,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1149

268 F.3d 1149 (9th Cir. 2001)

GARY LEE GUNDERSON, PETITIONER-APPELLANT, v. ROBERT A. HOOD, WARDEN, RESPONDENT-APPELLEE.

Nos. 00-36102, 01-35535

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 7, 2001

Filed: October 23, 2001

Stephen R. Sady, Assistant Federal Public Defender, Portland, Oregon, for the appellant.

Kenneth C. Bauman and Thomas M. Gannon, Assistant United States Attorneys, Portland, Oregon, for the appellee.

Appeal from the United States District Court for the District of Oregon Ancer L. Haggerty, District Judge, Presiding. D.C. No. CV-99-01233-ALH.

Before: Wallace, Hall, and T.G. Nelson, Circuit Judges.

OPINION

T.G. Nelson, Circuit Judge:

Federal prisoner Gary Lee Gunderson contends that because the Bureau of Prisons ("BOP") Program Statement 5162.04 is inconsistent with BOP regulations and has a substantive effect upon him, the BOP may not employ it to deny him early release as a result of his drug rehabilitation program participation. We do not agree that the program statement is substantive rather than interpretive as applied to him. Accordingly, we affirm the district court.

I. BACKGROUND AND DISTRICT COURT PROCEEDINGS

A. Evolution of the Challenged Program

Title 18 U.S.C. § 3621(e)(2)(B) authorizes the BOP to reduce the sentence of prisoners "convicted of a nonviolent offense" by up to one year if the prisoner successfully completes a residential substance abuse program. Section 3621(e)(2)(B) does not define the term "nonviolent offense." In 1995, the BOP promulgated an interim regulation to fill in this gap. The regulation, codified at 28 C.F.R.§ 550.58 (1995), equated "nonviolent offense" with every offense that did not fit within "crime[s] of violence " contained in a different section, 18 U.S.C. § 924(c)(3).¹ Around the same time, the BOP issued Program Statement 5162.02.² That program statement provided a more extensive list of offenses that would not qualify as "nonviolent offenses" under the BOP's statutory construction of that term.³

In Downey v. Crabtree,⁴ we rejected the statutory construction embodied in the 1995 regulation and program statement. Then in 1997 the BOP took a different tack in Program Statement 5162.04,⁵ which was entitled"Categorization of Offenses" and was to assist in implementing various BOP programs. Section 6 of the statement listed criminal offenses that are crimes of violence in all cases, while Section 7 listed offenses that, at the director's discretion, may preclude certain BOP benefits. The introduction to Section 7 provides in relevant part:

As an exercise of the discretion vested in the Director [of the BOP], an inmate serving a sentence for an offense that falls under the provisions described below shall be precluded from receiving certain Bureau program benefits [including the sentence-reduction benefit at issue here].

Inmates whose current offense is a felony that:

"involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device);

"by its nature or conduct, presents a serious potential risk of physical force against the person or property of another.⁶

Section 7 then goes on to describe several categories of offenses that would presumably fall within the standard listed in the introduction. One of these categories, found under subsection e, is entitled "Special Circumstances " and contains a provision that "all offenses under 18 U.S.C. § 922(g) shall preclude an inmate from receiving certain Bureau program benefits."⁷ That provision of the Code makes it unlawful for certain persons to possess any firearm or ammunition.

Six days after issuing Program Statement 5162.04, the BOP published an amended version of the regulation, which was again codified at 28 C.F.R. § 550.58. The new version of the regulation embodied the same discretionary approach as the new program statement.⁸ It stated that, as an exercise of the director's discretion, certain categories of inmates were not eligible for early release. Included within those categories were:

(vi) Inmates whose current offense is a felony:

. . . . .

(B) That involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device), or

(C) That by its nature or conduct, presents a serious potential risk of physical force against the person or property of another.⁹

Thus, the new regulation and program statement have the same effect as their predecessors. However, they achieve that effect through very different means. The new versions' categorical exclusion of certain prisoners from early release under § 3621(e) is based on an exercise of the BOP director's discretion rather than on the BOP's statutory construction of the term "nonviolent offense."

Several prisoners challenged the regulation and program statement's new approach. Initially, they met with some success. In Gavis v. Crabtree,¹⁰ the district court held both the 1997 regulation and the program statement to be invalid. However, we reversed Gavis in Bowen v. Hood ¹¹ and expressly held that 18 U.S.C. § 3621 authorizes the BOP to exercise its discretion in the manner embodied by the new regulation and program statement.¹² The Supreme Court subsequently approved of Bowen in Lopez v. Davis.¹³ Thus, it is quite clear that the 1997 regulation and program statement are substantively sound.

It is not clear, however, that the 1997 regulation and program statement are immune from attack on procedural grounds. In Lopez, an amicus argued that the 1997 regulation was invalid because the BOP did not comply with the requirements of the Administrative Procedure Act ("APA")¹⁴ during promulgation. The Supreme Court refused to consider the argument because it had not been raised in the court of appeals nor included in the petition for certiorari. ¹⁵ In Grassi v. Hood,¹⁶ the petitioner tried to raise the issue before us, but we also declined to reach it because he had not challenged the program statement which accompanied the regulation and compelled the same result.¹⁷

B. Gunderson's Challenge

Gunderson was convicted of being a previously convicted felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). He was sentenced to thirty-seven months' incarceration. While housed in federal facilities in Oregon, the BOP admitted Gunderson to its drug treatment program. However, the BOP informed Gunderson that, under Program Statement 5162.04, he was not eligible for early release under § 3621(e)(2)(B) because of the nature of his conviction (a felony under 18 U.S.C. § 922(g)). Gunderson chose to participate in the program despite the BOP's proviso. He has completed the initial 500-hour residential phase of the program and should complete the final phase shortly before his scheduled release late this year.

Gunderson filed a petition for writ of habeas corpus. In contrast to the petitioner in Grassi, Gunderson challenged the new program statement but not the new regulation. ¹⁸ He argued that because the program statement denies him a benefit that the regulation, standing alone, would not, the program statement is substantive as applied to him and thus must comport with the requirements of the APA.

The district court originally stayed the case. After removing the stay, the district court held that the program statement was a fair interpretation of 18 U.S.C. § 3621(e)(2)(B). Accordingly, the district court denied Gunderson's petition,¹⁹ and Gunderson appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

II. ANALYSIS

A. Mootness

Gunderson will not complete the final phase of the early release program until his scheduled release date. Therefore, it is not possible for the Department of Corrections to release Gunderson from physical confinement prior to his serving his full sentence even if he completes the drug program. However, this fact does not render the case moot because there is a possibility of the court's reducing or modifying his supervised release under 18 U.S.C. § 3583(e)(2).

Gunderson argues that the court could shorten the period of his supervised release under 18 U.S.C. § 3583(e)(1), (2) or Johnson v. Williford.²⁰ To invoke § 3583(e)(1), which allows the court to terminate the term of supervised release, the defendant must have completed one year of supervised release. Gunderson is not yet eligible to invoke that provision. However, § 3583(e)(2) allows the court to modify or reduce the conditions of supervised release at any time. Therefore, it is possible for Gunderson to receive relief in the form of a reduced or modified term of supervised release. Because § 3583(e)(2) provides possible relief, we do not need to decide whether this case fits the narrow confines of a situation calling for equitable estoppel under Johnson v. Williford.

B. The Program Statement

Gunderson argues that because Program Statement 5162.04 denies early release to anyone convicted under 18 U.S.C. § 922(g), it expands the scope of BOP's regulation and denies him a benefit that the corresponding regulation, standing alone, would not. Therefore, it is substantive as applied to him and thus must comport with the procedural requirements of the APA.

The APA requires that rules²¹ promulgated by administrative agencies undergo certain procedures unless those rules are "interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice." ²² Courts have struggled with identifying the difference between"legislative rules" and "interpretive rules." Generally, agencies issue interpretive rules to clarify or explain existing law or regulations so as to advise the public of the agency's construction of the rules it administers.²³ If a rule is inconsistent with or amends an existing legislative rule, then it cannot be interpretive.²⁴ Such a rule would impose new rights or obligations by...