Mora-Meraz v. Thomas

• Decision Date: 14 April 2010
• Docket Number: No. 09-35413.,09-35413.
• Citation: 601 F.3d 933
• Parties: Antonio MORA-MERAZ, Petitioner-Appellant, v. J.E. THOMAS, Warden, FCI Sheridan, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

601 F.3d 933

Antonio MORA-MERAZ, Petitioner-Appellant, v. J.E. THOMAS, Warden, FCI Sheridan, Respondent-Appellee.

No. 09-35413.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 3, 2010.

Filed April 14, 2010.

Stephen R. Sady, Lynn Deffebach (argued), Office of the Federal Public Defender for the District of Oregon, Portland, OR, for the petitioner-appellant.

Kent S. Robinson, Kevin Danielson, Suzanne A. Bratis (argued), Office of the United States Attorney for the District of Oregon, Portland, OR, for the respondent-appellee.

Before RICHARD A. PAEZ, RICHARD C. TALLMAN, and MILAN D. SMITH, JR., Circuit Judges.

TALLMAN, Circuit Judge:

Antonio Mora-Meraz ("Mora-Meraz"), a federal prisoner in the custody of the United States Bureau of Prisons (the "Bureau"), appeals the denial of his § 2241 petition for habeas corpus relief. He was convicted of possession of cocaine with the intent to distribute, and was sentenced to 120 months of incarceration. In the district court, he challenged the Bureau's decision to deny him eligibility for admission to the Residential Drug Abuse Program (the "RDAP") at the Federal Correctional Institution at Sheridan, Oregon.

The RDAP is an intensive drug abuse program requiring a minimum of 500 hours of treatment apart from the general prison population. Program Statement 5330.10, Chapter 5.1.¹ The program utilizes both individual and group therapy sessions and lasts for six to twelve months. Id. Additionally, individuals enrolled in the RDAP are required to complete transitional courses in a community-based program once placed in a halfway house or on supervised release. Id. The RDAP is attractive to prisoners because, as an incentive to participate in substance abuse rehabilitation, it grants up to one year sentence credit to those who successfully complete it.

Before the district court, Mora-Meraz claimed that the Bureau's unwritten requirement that he present documented proof of substance use within twelve months of imprisonment was invalid because it was not subject to notice and comment as required by the Administrative Procedure Act ("APA"), and because the Bureau failed to articulate a rational explanation for the requirement. We hold that the Bureau did not run afoul of the APA's procedural requirements and affirm the district court's denial of Mora-Meraz's petition for habeas corpus.²

I

A

Congress has outlined the terms of federal imprisonment in 18 U.S.C. § 3621. In 1990, the statute was amended to direct the Bureau to "make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse." Pub.L. 101-647, § 2903, 104 Stat. 4789, 4913 (1990) (codified at 18 U.S.C. § 3621(b)).

The Violent Crime Control and Law Enforcement Act of 1994 also partially amended 18 U.S.C. § 3621. Under this revision, eligible prisoners are able to participate in substance abuse programming and treatment available while incarcerated in federal institutions. Pub.L. No. 103-322, § 32001, 108 Stat. 1796, 1896-97 (1994) (codified at 18 U.S.C. § 3621(b)(5), (e)). An inmate may be "eligible" for a program such as the RDAP if he is (1) "determined by the Bureau of Prisons to have a substance abuse problem," and (2) "willing to participate in a residential substance abuse treatment program." 18 U.S.C. § 3621(e)(5)(B). As "an incentive... to draw into treatment many inmates who may otherwise not be willing to undergo a difficult and painful treatment program," Congress allowed for a potential one-year sentence reduction upon successful completion of the RDAP. H.R.Rep. No. 103-320, at 5 (1993); 18 U.S.C. § 3621(e)(2)(A), (B).³

The Bureau promulgated a regulation further defining eligibility for the RDAP.⁴ This regulation read, in relevant part:

(a) Eligibility. An inmate must meet all of the following criteria to be eligible for the residential drug abuse treatment program.

(1) The inmate must have a verifiable documented drug abuse problem.

28 C.F.R. § 550.56(a) (2008). Neither the statute nor the regulation defines "verifiable documented drug abuse problem."

The Bureau has issued a program statement explaining how it determines whether an inmate has a "verifiable documented drug abuse problem." Under Program Statement 5330.10, Chapter 5.4.1(a)(1), eligibility is based on multiple components. "Drug abuse program staff shall ... conduct the Residential Drug Abuse Program Eligibility Interview followed by a review of all pertinent documents in the inmate's central file to corroborate self-reported information." Program Statement 5330.10, Chapter 5.4.1(a)(1). "The inmate must meet the diagnostic criteria for substance abuse or dependence indicated in the Diagnostic and Statistical Manual of the Mental Disorders, Fourth Edition, (DSM—IV)." Id. Furthermore,

there must be verification in the Presentence Investigation ... report or other similar documents in the central file which supports the diagnosis. Any written documentation in the inmate's central file which indicates that the inmate used the same substance, for which a diagnosis of abuse or dependence was made via the interview, shall be accepted as verification of a drug abuse problem.

Id.

Since the Bureau bases its substance abuse or dependence diagnosis on the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition Text Revision (2000) ("DSM-IV"), it is important to understand how the DSM-IV classifies substance abuse and dependence. The DSM-IV defines dependence generally as "a cluster of cognitive, behavioral, and psychological symptoms indicating that the individual continues use of the substance despite significant substance-related problems." DSM-IV, at 192. Specifically, the DSM-IV defines dependence as "three or more of the following symptoms ... occurring at any time in the same 12-month period": tolerance; withdrawal; increased amount of a substance or elevated duration of ingestion; unsuccessful attempts to cease use; escalated time expenditure securing, using, and recovering from the substance; reduction in outside activities; or continued use despite awareness of the consequences. Id. at 192-94. It defines substance abuse similarly to substance dependence, but substance abuse "does not include tolerance, withdrawal, or a pattern of compulsive use and instead includes only the harmful consequences of repeated use." Id. at 198.

Once dependence or substance abuse has been established, an individual can enter one of the stages of remission if none of the symptoms listed above are present for one month. Id. at 195. The DSM-IV uses "specifiers" to qualify the quality and degree of remission. The quality of remission is categorized as either "Early" or "Sustained," and the degree is either "Partial" or "Full."

Because the first 12 months following Dependence is a time of particularly high risk for relapse, this period is designated Early Remission. After 12 months of Early Remission have passed without relapse to Dependence, the person enters into Sustained Remission. For both Early Remission and Sustained Remission, a further designation of Full is given if no criteria for Dependence or Abuse have been met during the period of remission; a designation of Partial is given if at least one of the criteria for Dependence or Abuse has been met, intermittently or continuously, during the period of remission.

Id. at 192. However, these remission specifiers are not applicable if a person is either on a prescribed agonist medication, such as methadone, or in a controlled environment "where access to alcohol and controlled substances is restricted," such as "closely supervised and substance-free jails." Id. at 197.

In addition to the interview with an inmate to evaluate his subjective claims of dependency or abuse, Bureau staff are required to review the inmate's central file and assess whether documented proof supports any initial diagnosis. See Program Statement 5330.10, Ch. 5.4.1(a)(1) (stating that following an interview where a diagnosis of dependence or substance abuse is made, any written documentation in an inmate's file which indicates that he or she used the same substance for which that diagnosis was made shall be accepted as verification of that drug abuse problem).

Furthermore, although the regulation and program statement set forth these requirements, the Bureau has also adopted an unwritten policy which mandates that the prisoner's file confirm that the inmate used the same substance within twelve months prior to incarceration. While the central file, including the PSR, might show use of the same substance at some point during an inmate's past, the Bureau requires, that to be eligible for the RDAP, the inmate must show substance dependence or abuse within his last twelve months "on the street."⁵

B

On February 4, 2002, Mora-Meraz was convicted of possession with the intent to distribute 13.32 kilograms of cocaine in the United States District Court for the Southern District of Texas after he and his daughter were caught carrying drugs across the Mexican border. He was sentenced to a term of 120-months incarceration with the Bureau and five additional years of supervised release. He was imprisoned at the Federal Correctional Institution at Sheridan, Oregon, and is now residing at a halfway house while completing the remainder of his custodial sentence. With credit for good conduct time, his projected release date is November 22, 2010.

A probation officer conducted an investigation prior to Mora-Meraz's sentencing. The presentence investigation report ("PSR") presented to the district court only briefly mentions a history of substance abuse. In its entirety, this section of the report states:

Mora-Meraz reported that he tried marihuana sic at the age of thirteen, and has never smoked marihuana sic again. He also admitted to having tried cocaine once in 1982. The

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