Orr v. Hawk

• Decision Date: 09 September 1998
• Docket Number: No. 96-6498,96-6498
• Parties: Robert Dan ORR, Petitioner-Appellant, v. Kathleen M. HAWK, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 651

156 F.3d 651

Robert Dan ORR, Petitioner-Appellant, v. Kathleen M. HAWK, Respondent-Appellee.

No. 96-6498.

United States Court of Appeals, Sixth Circuit.

Submitted Aug. 6, 1998.

Decided Sept. 9, 1998.

Robert Dan Orr, Amory, MS, pro se.

Brian J. Quarles, Asst. U.S. Attorney (briefed), Office of the U.S. Attorney, Memphis, TN, for Respondent-Appellee.

Before: KRUPANSKY, NORRIS, and SILER, Circuit Judges.

OPINION

SILER, Circuit Judge.

Petitioner Robert Dan Orr appeals the dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2241. As set forth below, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

I.

Orr was a prisoner in the custody of the Federal Bureau of Prisons ("BOP") at the Federal Prison Camp at Millington, Tennessee, before the expiration of his sentence in March 1998. He is currently on supervised release.

Orr was convicted in the United States District Court for the Northern District of Mississippi on one count of conspiracy to distribute and possess with intent to distribute a Schedule II Controlled Substance in violation of 21 U.S.C. §§ 841 and 846, and one count of possession of a firearm by a previously convicted felon in violation of 18 U.S.C. §§ 922(g), 924(a)(2), and 3571(b)(3). In 1991, he was sentenced to a term of imprisonment of ninety-six months for each offense to run concurrently, plus supervised release.

In the course of his incarceration, Orr enrolled in a "Comprehensive Drug Abuse Treatment Program" and successfully completed it in 1994. In 1996, Orr petitioned the BOP for a one-year reduction in his sentence as provided in 18 U.S.C. § 3621(e)(2)(B). The BOP denied this petition, reasoning that Orr was specifically precluded from taking advantage of the sentence reduction because his felon-in-possession conviction was a crime of violence within the meaning of 18 U.S.C. § 924(c)(3). In addition, the BOP pointed to an internal rule--Program Statement 5162.02--explicitly listing all offenses the BOP deemed to be crimes of violence. Included in that list was 18 U.S.C. § 922(g), the felon-in-possession statute.

After exhausting his administrative remedies, Orr filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the Western District of Tennessee alleging that the BOP had deprived him of his right to early release without due process of law. He further claimed that the BOP's definition of "crime of violence" conflicted with the United States Sentencing Commission's definition set forth at USSG § 4B1.2, comment. (n. 2). Finally, Orr alleged that by treating him differently from other nonviolent offenders, the BOP had denied him his right to the equal protection of the laws.

The district court dismissed Orr's petition. It held that: (1) Orr had no liberty interest in his early release and thus stated no due process claim; (2) the BOP's decision whether to grant early release is not subject to judicial review; (3) applying minimal scrutiny to Orr's equal protection claim, the "classification" involved is not arbitrary and furthers a legitimate government interest; and (4) the BOP did not exceed its statutory authority by excluding those convicted under 18 U.S.C. § 922(g) from consideration for early release because the BOP could have denied Orr early release for any or no reason even if the agency had not so broadly defined the term "crime of violence."

Since the filing of the briefs in this appeal, the BOP has changed its regulations concerning eligibility for early release. Whereas 28 C.F.R. § 550.58 defined crimes of violence by reference to 18 U.S.C. § 924(c)(3), which contains no language that would include mere possessory offenses, that section now specifically renders ineligible for early release any felony inmate whose offense "involved the carrying, possession, or use of a firearm...." 28 C.F.R. § 550.58(a)(1)(vi)(B) (emphasis added).

II.

18 U.S.C. § 3621(e)(1)(C), passed in 1994, requires that "the Bureau of Prisons ... provide residential substance abuse treatment ... for all eligible prisoners by the end of fiscal year 1997...." As an incentive for prisoner participation in such treatment programs, the statute allows an inmate convicted of a "nonviolent offense" to receive a reduction in sentence of up to one year. 18 U.S.C. § 3621(e)(2)(B). Nothing in the statute requires the BOP to grant early release to any eligible prisoner. Thus, it suggests that the agency has substantial discretion in its decisionmaking.

Because the statute does not define "nonviolent offense," the BOP chose to define the term by looking to what are not nonviolent offenses, i.e., crimes of violence. This court, as well as a number of other courts, has held that in interpreting the otherwise undefined term "nonviolent offense," courts must do so by reference to the term "crime of violence." See United States v. Maddalena, 893 F.2d 815, 819 (6th Cir.1989); United States v. Mayotte, 76 F.3d 887, 889 (8th Cir.1996); United States v. Dailey, 24 F.3d 1323, 1325-26 (11th Cir.1994); United States v. Poff, 926 F.2d 588, 592 (7th Cir.1991); United States v. Russell, 917 F.2d 512, 517 (11th Cir.1990); United States v. Borrayo, 898 F.2d 91, 94 (9th Cir.1990); United States v. Rosen, 896 F.2d 789, 791 (3d Cir.1990). The agency therefore initially adopted the definition of crime of violence set forth in 18 U.S.C. § 924(c)(3). 28 C.F.R. § 550.58 (1997), amended by 62 Fed.Reg. 53,691 (1997)(to be codified at 28 C.F.R. § 550.58). Under that regulation, a prisoner was expressly ineligible for early release if his offense was a felony (1) that "ha[d] as an element the use, attempted use, or threatened use of physical force against the person or property of another," or (3) that, "by its nature, involve[d] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 924(c)(3).

The BOP, however, has since amended 28 C.F.R. § 550.58 to add language based, in part, on a repealed section of the Public Health and Welfare Title. 62 Fed.Reg. 53691 (1997) (to be codified at 28 C.F.R. § 550.58). The definition in the new § 550.58 is an amalgam of different United States Code sections, rather than merely drawing from § 924(c)(3). This now includes the § 924(c)(3) language virtually verbatim, but additionally provides, in relevant part, that "[i]nmates whose current offense is a felony ... [t]hat involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives" are ineligible for early release. 62 Fed.Reg. 53691 (1997) (to be codified at 28 C.F.R. § 550.58). The former 42 U.S.C. § 3796ii-2 contained remarkably similar language, defining a "violent offender" as one who "is charged with or convicted of an offense, during the course of which offense or conduct ... [the accused] carried, possessed, or used a firearm or dangerous weapon...." 42 U.S.C. § 3796ii-2(1)(A) (repealed 1996). The BOP has at least implicitly acknowledged in other litigation that its new definition of crime of violence derives from the repealed statute. Sesler v. Pitzer, 110 F.3d 569, 571-572 (8th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 197, 139 L.Ed.2d 135 (1997); Davis v. Crabtree, 109 F.3d 566, 569-570 (9th Cir.1997).

III.

As an initial matter, there is a substantial question as to whether the amended regulation can apply to Orr's case. Agency rules typically will not apply retroactively in the absence of an express statutory authorization of retroactive rulemaking. Bowen v. Georgetown University Hospital, 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). This is as true of interpretive rules, like § 550.58, as it is of legislative rules. Bauer v. Varity Dayton-Walther Corp., 118 F.3d 1109, 1111 n. 1 (6th Cir.1997). Indeed, the Ninth Circuit has specifically held that unfavorable changes to BOP rules construing 18 U.S.C. § 3621(e)(2)(B) cannot apply to prisoners who started the substance abuse treatment program prior to the change. Cort v. Crabtree, 113 F.3d 1081, 1086-87 (9th Cir.1997) (addressing BOP amendment to definition of crime of violence to include unarmed bank robbery). But see Royal v. Tombone, 141 F.3d 596, 601-602 (5th Cir.1998) (disagreeing with Ninth Circuit's conclusion in Cort and holding that aggrieved prisoner must show that he was actually entitled to sentence reduction prior to issuance of new rule in order to avoid application of that rule).

However, there are at least two factors allowing the application of the new s

550.58 in this case. First, because a law must "take[ ] away or impair[ ] vested rights acquired under existing laws, or create[ ] a new obligation, impose[ ] a new duty, or attach[ ] a new disability, in respect to transactions or considerations already past" in order to be retroactive, Landgraf v. USI Film Prods., 511 U.S. 244, 269, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (internal quotation and citation omitted), it is questionable whether applying the new § 550.58 to Orr would be a "retroactive" application of the regulation. Neither the Constitution, nor 18 U.S.C. § 3621(e)(2)(B), nor the original 28 C.F.R. § 550.58 creates a liberty interest in early release. See Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) (where statute leaves decisionmaker with unfettered discretion over grant or denial of benefit, no liberty interest in that benefit); Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (no generalized constitutional right to reduced sentence). Where an interest is not a protected one, there is no cognizable harm to the individual when deprived of that interest. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). Perhaps even more compelling is the fact that Orr never changed his...