Martin v. Gerlinski, s. 97-2232

Decision Date13 January 1998
Docket Number97-2683,97-2686,Nos. 97-2232,97-2934 and 97-3474,s. 97-2232
Citation133 F.3d 1076
PartiesLarry W. MARTIN, Appellant, v. Susan GERLINSKI, Appellee. Jeffrey Allan BRAUN, Appellant, v. BUREAU OF PRISONS; James W. Tippy, Warden, Appellees. Jerry LUTHER, Appellant, v. Phillip WISE, Warden; Bureau of Prisons, sued as Federal Bureau of Prisons, Appellees. Landon R. BARTON, Appellant, v. Susan GERLINSKI, Warden, Appellee. Anthony J. GIBBONS, Appellant, v. Susan GERLINSKI, Warden, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Phyllis Jeanette Kirwin, Fridley, MN, argued, for appellants.

Alison Vander Vort, Assistant United States Attorney, Minneapolis, MN, argued (Karen E. Schreier, Craig Peyton Gaumer, David L. Lillehaug, Denise D. Reilly, and LeAnn Larson LaFave, on the briefs), for appellees.

Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.

McMILLIAN, Circuit Judge.

In these consolidated appeals, federal prisoners Larry W. Martin, Landon R. Barton, and Anthony J. Gibbons each appeals from a final order of the United States District Court for the District of South Dakota, and Jerry Luther and Jeffrey Allan Braun each appeals from a final order of the United States District Court for the District of Minnesota, denying their 28 U.S.C. § 2241 petitions for writs of habeas corpus. On December 19, we issued an order reversing the district courts' denials of the habeas petitions, with the stated reasons therefore to follow. Martin v. Gerlinski, No. 97-2232 (8th Cir. Dec.19, 1997). We now set forth our reasons for reversing the district courts' orders.

I. Background

Jerry Luther was convicted of conspiring to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and was sentenced to 94 months imprisonment. Larry W. Martin received a 60-month sentence for conspiring to distribute and possess with intent to distribute marijuana and cocaine. Landon R. Barton pleaded guilty to distributing methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and was sentenced to 63 months imprisonment. Jeffrey Allan Braun pleaded guilty to conspiring to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and was sentenced to 60 months imprisonment. Anthony J. Gibbons pleaded guilty to conspiring to possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 846 and 841(a), and was sentenced to 54 months imprisonment. At sentencing, each appellant received a 2-level increase to his offense level under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (1997) for possessing a dangerous weapon.

Appellants were either accepted into or placed on the waiting list for participation in a residential drug abuse treatment program, and were notified by the Bureau of Prisons (BOP) that, even after their completion of the program, they would not qualify for early release under 18 U.S.C. § 3621(e)(2)(B) (BOP may reduce sentence by one year of prisoners convicted of nonviolent offenses after they successfully complete treatment program). Relying on Section 9 of its Program Statement 5162.02, the BOP concluded appellants were not eligible because possession of a weapon while committing the drug offenses created a substantial risk that force may have been used against the person or property of another, and thus, because of the sentence enhancements, the BOP classified their offenses as "crimes of violence." After exhausting their administrative remedies, appellants each filed a 28 U.S.C. § 2241 habeas corpus petition, arguing that the drug offenses were not crimes of violence and that the BOP exceeded its statutory authority in its definition of what constitutes a "nonviolent offense." Martin further claimed that the denial of the one-year reduction in his sentence, access to community programs, and good time credits violated his rights to due process and equal protection, and that he had suffered collateral harm as a result of the BOP's designation of his offense as a crime of violence. Barton also claimed a denial of his rights to due process and equal protection.

The district court dismissed Luther's petition, concluding that the BOP's decision that appellants did not qualify for early release was unreviewable as an administrative action committed to agency discretion. Luther v. Wise, No. 97-17 (D.Minn. Apr. 28, 1997). As for Martin's petition, the district court concluded that the BOP acted within its discretion to administer the residential drug treatment program. The district court rejected the due process and equal protection claims. Martin v. Gerlinski, No. 96-4266 (D.S.D. Mar. 27, 1997). The district courts in the remaining cases dismissed the petitions for substantially identical reasons. Barton v. Gerlinski, No. 97-4039 (D.S.D. June 12, 1997); Gibbons v. Gerlinski, No. 97-4150 (D.S.D. Aug. 12, 1997); Braun v. Bureau of Prisons, No. 4-96-327 (D. Minn. June 2, 1997).

II. Discussion

Section 32001 of the Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA), codified at 18 U.S.C. § 3621(e)(2)(B), provides:

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.

The question presented here concerns the construction of the phrase "convicted of a nonviolent offense." Congress did not define the term. In its promulgated regulations, the BOP defined the meaning of a "nonviolent offense" in the converse, by referencing the term "crime of violence" as used in the criminal code:

[A]n 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. The following categories of inmates are not eligible: ... inmates whose current offense is determined to be a crime of violence as defined in 18 U.S.C. [§ ] 924(c)(3).

28 C.F.R. § 550.58 (1997) (as amended).

According to 18 U.S.C. § 924(c)(3), the term "crime of violence" is defined as:

an offense that is a felony and--

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

To further interpret the term "crime of violence," the BOP issued Program Statement 5162.02 (July 24, 1995), which contains an exhaustive list of criminal offenses it has found to be crimes of violence. Section 9 provides that one category of criminal offenses may be crimes of violence depending on the specific offense characteristic assigned. Where, at the time of sentence, the district court makes a finding that the offense involved violence, and this finding is reflected in the section of the presentence investigation report entitled, "Specific Offense Characteristics," that conviction is considered a "crime of violence." Section 9 cites as an example a defendant who has been convicted of manufacturing drugs and receives a 2-level enhancement for possession of a firearm. It is on the basis of this section of Program Statement 5192.02 that the BOP categorically declared appellants ineligible for the sentence reduction.

Reviewability. Contrary to the district court in Luther v. Wise, we conclude that the question of the BOP's authority to include sentencing factors in its definition is reviewable, and is not precluded by 18 U.S.C. § 3625. 1 Section 3625 provides that "[t]he provisions of section 554 and 555 and 701 through 706 of title 5, United States Code, do not apply to the making of any determination, decision, or order under this subchapter [section 3621-3526]." Absent from § 3625 is an exclusion of the rulemaking provisions of the Administrative Procedure Act under 5 U.S.C. § 553. Accordingly, it is apparent that § 3625 precludes judicial review of agency adjudicative decisions but not of rulemaking decisions.

Further, whether the Program Statement is a legislative rule or an interpretive rule, § 3625 does not divest this court of jurisdiction to review whether the BOP exceeded its statutory authority by categorically considering sentencing enhancement factors, even though the court may not review the BOP's discretionary decision to deny a sentencing reduction. Cf. Wajda v. United States, 64 F.3d 385, 388 (8th Cir.1995) (court retains jurisdiction to determine whether Parole Commission exceeded statutory authority notwithstanding lack of jurisdiction to review substantive decision).

We conclude Section 9 of the Program Statement constitutes a legislative rather than an interpretive rule, because it does not merely "explain" what is a "crime of violence" within the parameters of the meaning of the offense itself or by way of the definition accorded it under the regulation; it expands the scope of the conduct under consideration, thus extending the reach of the regulation. See Northwest Nat'l Bank v. United States Dep't of the Treasury, 917 F.2d 1111, 1117 (8th Cir.1990) (comparing interpretive rules which " 'remind' affected parties of existing duties" and legislative rules which "create new law or impose new rights or duties" (quoted case omitted)); Wiggins v. Wise, 951 F.Supp. 614, 619-20 (S.D.W.Va.1996) (BOP's Program Statement 5162.02 is a legislative rule because it "does not involve the application of a regulation to a particular set of facts, but, rather, seeks to establish guidelines applicable to a wide range of situations").

We further conclude the BOP exceeded its statutory authority because its interpretation of § 3621(e)(2)(B) is in conflict with the plain language of the statute, and thus no deference is due. See Public Employees Retirement Sys. v. Betts, 492...

To continue reading

Request your trial
97 cases
  • Minotti v. Whitehead, Civil Case No. RWT-08-1418.
    • United States
    • U.S. District Court — District of Maryland
    • 31 Octubre 2008
    ...of eligibility have always been of prospective application to exclude a broad class of prisoners with certain convictions. See Martin, 133 F.3d at 1079 ("Absent from § 3625 is an exclusion of the rulemaking provisions of the [APA] ... Accordingly, it is apparent that § 3625 precludes review......
  • Magnin v. Beeler, Civil Action No. 98-5842 (D. N.J. 8/25/2000)
    • United States
    • U.S. District Court — District of New Jersey
    • 25 Agosto 2000
    ...411 (6th Cir. 1999); Fristoe v. Thompson, 144 F.3d 627 (10th Cir. 1998); Byrd v. Hasty, 142 F.3d 1395 (11th Cir. 1998); Martin v. Gerlinski, 133 F.3d 1076 (8th Cir. 1998); Bush v. Pitzer, 133 F.3d 455 (7th Cir. 1997); Downey v. Crabtree, 100 F.3d 662 (9th Cir. 1996); see also LaSorsa v. Spe......
  • Royce v. Hahn
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 5 Agosto 1998
    ...[original] regulation, the BOP is bound by the definition accorded it in the interpretative decisional case law." Martin v. Gerlinski, 133 F.3d 1076, 1080 (8th Cir.1998). We have twice considered the meaning of "nonviolent felony" in the substance abuse program context. In Stiver v. Meko, 1......
  • Ward v. Booker, 98-3274-RDR.
    • United States
    • U.S. District Court — District of Kansas
    • 12 Febrero 1999
    ...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......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT