LaSorsa v. Spears, 97Civ.4827(SS)(RLE).

• Decision Date: 01 May 1998
• Docket Number: No. 97Civ.4827(SS)(RLE).,97Civ.4827(SS)(RLE).
• Citation: 2 F.Supp.2d 550
• Parties: Nicholas LASORSA, Petitioner, v. Philip M. SPEARS, Respondent.
• Court: U.S. District Court — Southern District of New York

2 F.Supp.2d 550

Nicholas LASORSA, Petitioner, v. Philip M. SPEARS, Respondent.

No. 97Civ.4827(SS)(RLE).

United States District Court, S.D. New York.

May 1, 1998.

COPYRIGHT MATERIAL OMITTED

Joyce C. London, New York City, for petitioner.

Mary Jo White, United States Attorney, New York City, Irene Chang, for Respondent.

OPINION AND ORDER

SOTOMAYOR, District Judge.

Petitioner Nicholas LaSorsa, petitions this Court for a writ of habeas corpus under 28 U.S.C. § 2241, challenging his continued incarceration by the Federal Bureau of Prisons (BOP) pursuant to a 1994 conviction in the Southern District of New York. LaSorsa seeks an order requiring BOP to credit him with a one year sentence reduction, pursuant to 18 U.S.C. § 3621(e)(2)(B), for having completed a substance abuse treatment program. On September 18, 1997, this Court referred respondent's motion to dismiss the petition to Magistrate Judge Ronald L. Ellis, who filed a Report and Recommendation on March 11, 1998 (the "Report"), recommending that this Court find BOP's denial to be based on an erroneous interpretation of law and ordering BOP to reconsider the petitioner's request for sentence reduction under the correct legal standard.

The United States filed timely objections to the Report on March 27, 1998. This Court, having reviewed the Report and the government's objections, and having conducted a de novo review of the record, effectively accepts the recommendation of Magistrate Judge Ellis with modifications as noted herein. However, because much of the case law on this subject elides a critical distinction between BOP's discretionary powers under § 3621(e) and its ability to interpret statutes and regulations, the Court wishes to expound more than usual on the Magistrate Judge's thorough and thoughtful Report.

BACKGROUND

The complete facts of this case are recounted in the Report of Magistrate Judge Ellis. Briefly, LaSorsa pled guilty to possession with intent to distribute heroin, in violation of 21 U.S.C. § 841, and using and carrying a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c). The firearm in question, a semi-automatic handgun, was found in a search of LaSorsa's residence, as was the heroin. On May 11, 1994, LaSorsa was sentenced to two consecutive terms of sixty months' imprisonment. LaSorsa's § 924(c) conviction was subsequently vacated following the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), and LaSorsa was resentenced to seventy-eight months on the § 841 count, the new sentence including a two-level, eighteen-month enhancement for possession of a dangerous weapon under United States Sentencing Guidelines § 2D1.1(b)(1).

While incarcerated at F.C.I. Marianna, Florida, LaSorsa entered and completed a five hundred hour substance abuse program, graduating on June 5, 1996. LaSorsa immediately applied for a one-year sentence reduction under 18 U.S.C. § 3621(e)(2)(B). At the first level, LaSorsa's case manager denied the request because

Per your PSI [Presentence Investigation Report] dated 10/16/1996 you received a two level enhancement for possession of weapon which was in your residence. This means you require notification of local law enforcement under the [VCCLEA].¹ See P.S. [Program Statement] 5162.02 p. 7 for definition of crimes of violence. This precludes you from being eligible for consideration of one year off.

Petition, Ex. B. LaSorsa diligently exhausted the entire administrative appeal system at BOP, being denied at each level essentially for the same reason—that under P.S. 5162.02 he was convicted of a "crime of violence" and was therefore ineligible for release.

LaSorsa then filed this habeas petition under 28 U.S.C. § 2241, contending that § 3621(e)(2)(B) entitled him to the sentence reduction and that therefore his continued incarceration (now at F.C.I. Otisville, New York) was in violation of federal law. Following referral by this Court, Magistrate Judge Ronald L. Ellis issued his Report. Magistrate Judge Ellis found, in essence, the following: (1) 18 U.S.C. § 3621(e)(2)(B) made eligible for sentence reduction those prisoners convicted of nonviolent offenses; (2) BOP's regulation interpreting this statute, 28 C.F.R. § 550.58, defined "nonviolent offense" as an offense not covered by the definition of "crime of violence" found in 18 U.S.C. § 924(c)(3); (3) BOP's Program Statement 5162.02, defining "crime of violence" to include LaSorsa's drug possession offense was contrary to clear case law interpreting § 924(c)(3) and therefore an invalid interpretation of the regulation; (4) BOP nevertheless maintained discretion under § 3621(e)(2)(B) to determine which eligible prisoners received the sentence reduction, and (5) therefore, BOP should be ordered to reconsider LaSorsa's request for sentence reduction under a proper interpretation of § 924(c)(3).

The government objects to the Report on the ground that BOP's Program Statement is a permissible interpretation of both the statute and the regulation.

DISCUSSION

I. The Statutory Framework

I begin with the statute which underlies the early release program upon which LaSorsa relies. Title III of the Violent Crime Control and Law Enforcement Act of 1994 ("VCCLEA"), Pub.L. No. 103-322, gave BOP the authority to release certain prisoners who have completed a BOP substance abuse treatment program. In relevant part, the statute reads as follows:

(e) Substance abuse treatment.—

...

(2) Incentive for prisoners' successful completion of 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) (emphasis added). The emphasized portions are the subject of the dispute at issue in this habeas petition.

LaSorsa contends that, because he was not convicted of a violent offense, he is eligible for early release under § 3621(e)(2)(B). "Eligible" he may be, but as noted by Magistrate Judge Ellis and saliently put by the Seventh Circuit, "eligibility is not entitlement." Bush v. Pitzer, 133 F.3d 455, 457 (7th Cir.1997). As far as the statute is concerned, BOP retains discretion over early release along at least two axes: (1) which nonviolent offenders will have their sentences reduced, and (2) how long these sentence reductions will be.

The plain language of § 3621(e)(2)(B) states only that the sentences of nonviolent offenders who have completed a treatment program "may be reduced by the Bureau of Prisons," not that they must be. The statute unambiguously precludes the release of violent offenders, and just as unambiguously places no other criteria on whom BOP chooses to release.²

The Supreme Court has construed similar legislative enactments to be virtually unfettered grants of discretion—i.e., there appears to be no canon of statutory construction that when discretion is granted with limits, Congress intends only those limits to apply. In INS v. Yang, 519 U.S. 26, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996), the Court was called upon to construe the provisions of the Immigration and Nationality Act (INA) which allow the Attorney General (or in this case, her designate, the Immigration and Naturalization Service) the discretion to waive deportation of those aliens who are deportable solely on the grounds that they were excludable at entry because of fraudulent documentation. See 8 U.S.C. § 1251(a)(1)(H) (1996).³ The petitioner in Yang argued, in effect, that because the INA made those excludable solely for entry fraud eligible for the exercise of the Attorney General's discretion, the Attorney General was forbidden from considering entry fraud at all in its determination of whether to exercise that discretion.

A unanimous Supreme Court roundly rejected that position. The Court first stated that "the meaning of this language [§ 1251(a)(1)(H)] is clear. While it establishes certain prerequisites to eligibility for a waiver of deportation, it imposes no limitations on the factors that the Attorney General ... may consider in determining who, among the class of eligible aliens, should be granted relief." Yang, 117 S.Ct. at 352. Contrasting the statute with a previous version of the INA under which the Attorney General had no discretion to waive deportation if the statutory requirements were met, the Court held that "satisfaction of the requirements under § 1251(a)(1)(H) ... establishes only the alien's eligibility for waiver. Such eligibility in no way limits the considerations that may guide the Attorney General in exercising her discretion to determine who, among those eligible, will be accorded grace." Id. at 353.

The only limitation alluded to, in dictum, was that if the Attorney General considered all entry fraud, no matter how minor, as preventing waiver, she would in effect be refusing to exercise her discretion completely, thus rendering the statute a nullity. The Court hinted that this might be impermissible, but that it was "a far cry" from preventing consideration of entry fraud at all, a position the Court described as "untenable." Id.

Petitioner here makes virtually the same argument as the petitioner in Yang, and it fails for the same reason. 18 U.S.C. § 3621(e)(2) establishes two conditions which a prisoner must be meet in order to be eligible for early release at all—namely, completion of a substance abuse treatment program and conviction of a nonviolent offense. Such eligibility, however, "in no way limits the considerations that may guide" the Bureau of Prisons in determining who will be released. With the possible limitation that BOP may not set so many restrictions as to render the statute effectively inoperative, BOP is free to consider anything—including the nature of the offense and the...