Peck v. Thomas

• Decision Date: 19 June 2012
• Docket Number: Nos. 11–35283,11–35296,11–35355.,s. 11–35283
• Citation: 682 F.3d 1201,2012 Daily Journal D.A.R. 8277
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Lonnie PECK, Petitioner–Appellant, v. J.E. THOMAS, Respondent–Appellee. Louis D. Moon, Petitioner–Appellant, v. J.E. Thomas, Warden, Respondent–Appellee. Deven Suesue, aka Devon Suesue, Petitioner–Appellant, v. J.E. Thomas, Warden, Respondent–Appellee.

682 F.3d 1201

2012 Daily Journal D.A.R. 8277

Lonnie PECK, Petitioner–Appellant,

v.J.E. THOMAS, Respondent–Appellee.

Louis D. Moon, Petitioner–Appellant,

v.J.E. Thomas, Warden, Respondent–Appellee.

Deven Suesue, aka Devon Suesue, Petitioner–Appellant,

v.J.E. Thomas, Warden, Respondent–Appellee.

Nos. 11–35283, 11–35296, 11–35355.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted March 7, 2012.

Filed June 19, 2012.

Background: Federal prisoners filed habeas petitions to challenge validity of Bureau of Prisons (BOP) regulations that categorically disqualified prisoners with current felony conviction for offenses involving carrying, possession, or use of a firearm or other dangerous weapon or explosives from the early release incentive associated with Residential Drug Abuse Treatment Program (RDAP). The United States District Court for the District of Oregon, Michael W. Mosman, J., 787 F.Supp.2d 1145,787 F.Supp.2d 1154, and 2011 WL 1527365, denied petitions. Prisoners appealed.

Holdings: The Court of Appeals, Bybee, Circuit Judge, held that:

(1) BOP regulation excluding inmates with firearm-related convictions from early release under RDAP was not arbitrary, capricious, or an abuse of discretion;

(2) BOP regulation excluding inmates with prior convictions for homicide, forcible rape, robbery, aggravated assault, arson, kidnapping, or child sexual abuse from early release under RDAP was not arbitrary, capricious, or an abuse of discretion;

(3) BOP was entitled to invoke its experience as justification for rule; and

(4) perceived inconsistencies with congressional intent was not sufficient to invalidate regulation.

Affirmed.

Prior Version Recognized as Invalid

28 C.F.R. § 550.58

Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, OR, for the appellant.

Ronald K. Silver, Assistant United States Attorney, Portland, OR, for the appellant.

Appeal from the United States District Court for the District of Oregon, Michael W. Mosman, District Judge, Presiding. D.C. Nos. 3:10–cv–00709–MO, 3:10–cv–01154–MO, 3:10–cv–01295–MO.

Before: WILLIAM A. FLETCHER, RAYMOND C. FISHER, and JAY S. BYBEE, Circuit Judges.

OPINION

BYBEE, Circuit Judge:

Petitioners Lonnie Peck, Louis Moon, and Deven Suesue are statutorily eligible for early release from prison in exchange for the successful completion of a residential drug abuse treatment program (“RDAP”). The Bureau of Prisons (“BOP”), however, has enacted a regulation disqualifying them from the early release incentive on the basis of their current convictions for felon in possession and one petitioner's past conviction for robbery. See28 C.F.R. § 550.55(b). Petitioners each filed for a writ of habeas corpus asking the district court to invalidate the regulation under § 706 of the Administrative Procedure Act (“APA”). The district court dismissed the petitions, and the appeals were consolidated. We have jurisdiction under 28 U.S.C. § 1291 and § 2253¹ and we affirm.

I. FACTS AND PROCEDURAL BACKGROUND

Petitioners were each convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g), and are either currently serving sentences in BOP facilities or serving terms of supervised release. At the time of his conviction, Petitioner Moon had a past conviction for robbery, but he received no criminal history points under the Sentencing Guidelines because the conviction was more than 15 years old.

In 1990, Congress directed the BOP to create programs to treat substance abuse among inmates. See18 U.S.C. § 3621(b). To encourage participation in this program,Congress subsequently determined that inmates who successfully complete the program would be eligible for up to one year of early release from prison—as long as the inmate had been convicted of a “nonviolent offense.” Id. § 3621(e)(2)(B).

Under the authority delegated by this statute, the BOP has implemented a regulation that categorically excludes certain classes of inmates from eligibility for § 3621(e)'s early release incentive. See28 C.F.R. § 550.55(b). Petitioners challenge two aspects of this regulation: first, the exclusion of inmates convicted of “[a]n offense that involved the ... possession ... of a firearm,” id. § 550.55(b)(5)(ii); and second, the exclusion of inmates who have a prior conviction for homicide, forcible rape, robbery, aggravated assault, arson, kidnapping, or child sexual abuse, regardless of the age of that conviction, id. § 550.55(b)(4).

The history of the BOP's attempts to implement these categorical exclusions is lengthy but relevant. Initially, the regulation defined the term “nonviolent offense” in § 3621(e) with reference to the statutory definition of “crime of violence” found in 18 U.S.C. § 924(c)(3). See28 C.F.R. § 550.58 (1995). We invalidated that regulation, holding that the inclusion of a § 922(g) possession charge is not a reasonable interpretation of the term “crime of violence” in § 924(c)(3). Davis v. Crabtree, 109 F.3d 566, 569 (9th Cir.1997). This eventually created a circuit split.²

To resolve this circuit split, the BOP dropped the reference to § 924(c)(3) and instead asserted its discretionary authority to determine eligibility for early release under § 3621(e). In 1997, the BOP published an interim rule, effective immediately, that categorically excluded from eligibility for early release inmates with current convictions for felony offenses “involv[ing] the carrying, possession, or use of a firearm.” 28 C.F.R. § 550.58(a)(1)(vi) (1998). In addition, the regulation continued to exclude prisoners with prior convictions for certain offenses. Id. § 550.58(a)(1)(iv).

We upheld the Bureau's authority to so disqualify otherwise statutorily eligible inmates. See Bowen v. Hood, 202 F.3d 1211, 1220 (9th Cir.2000) (holding that the 1997 rule's exclusion based on firearms possession was a reasonable exercise of discretion granted by the statute); Jacks v. Crabtree, 114 F.3d 983, 986 (9th Cir.1997) (holding that the 1995 rule's exclusion of inmates with prior convictions for certain offenses was entitled to deference and was reasonable). The Supreme Court later agreed, holding that “the agency's interpretation is reasonable both in taking account of preconviction conduct and in making categorical exclusions.” Lopez v. Davis, 531 U.S. 230, 242, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001). The Court explained that “the Bureau need not blind itself to preconviction conduct that the agency reasonably views as jeopardizing life and limb. By denying eligibility to violent offenders, the statute manifests congressional concern for preconviction behavior—and for the very conduct leading to conviction.” Id. The Court also found that “[t]he Bureau reasonably concluded that an inmate's prior involvement with firearms, in connection with the commission of a felony, suggests his readiness to resort to life-endangering violence and therefore appropriately determines the early release decision.” Id. at 244, 121 S.Ct. 714.

The Lopez Court declined to reach the question of whether the BOP had complied with the notice-and-comment provisions of the APA in promulgating the 1997 rule. Id. at 244 n. 6, 121 S.Ct. 714. We took up this question in Paulsen v. Daniels, holding that the BOP had violated the APA by “implement [ing] a rule first, and then seek[ing] comment later.” 413 F.3d 999, 1005 (9th Cir.2005). We invalidated the 1997 interim rule, declined to reinstate the 1995 version because it was also invalid, and noted that the law currently in effect was a final rule that had been promulgated in 2000. Id. at 1008.

The 2000 rule finalized the 1997 interim rule without change. Id. at 1003;see28 C.F.R. § 550.58 (2001). Once again, we invalidated the BOP's efforts. In Arrington v. Daniels, we held that the 2000 rule, insofar as it categorically excluded inmates convicted of firearm-possession offenses, was arbitrary and capricious under § 706(2)(A) of the APA because the agency failed to give a reasoned basis for its action. 516 F.3d 1106, 1113–14 (9th Cir.2008). In Arrington, we found that the administrative record did not contain the rationale advanced by the agency during litigation, id. at 1113, and concluded that the BOP had “failed to set forth a rationale for its decision to categorically exclude prisoners convicted of offenses involving the carrying, possession, or use of firearms from eligibility for a sentence reduction under § 3621(e),” id. at 1114.

Following Arrington, we invalidated the exclusion based on prior convictions in Crickon v. Thomas, 579 F.3d 978 (9th Cir.2009). Crickon noted that “[o]ur recent ruling in Arrington squarely controls the outcome of the present case,” id. at 983, and once again criticized the BOP for enacting a regulation without articulating a supporting rationale, id. at 984–85.

Not to be deterred, the BOP responded to Arrington and Crickon by enacting identical provisions in a 2009 rule. See28 C.F.R. § 550.55. It is this rule that Petitioners here challenge—specifically, the exclusions set forth in 28 C.F.R. § 550.55(b)(5)(ii) and § 550.55(b)(4). At the outset, we note that every other circuit court to consider the issue has held either the current or prior version of this regulation to be valid under the APA. See Licon v. Ledezma, 638 F.3d 1303, 1311 (10th Cir.2011); Giannini v. Fed. Bureau of Prisons, 405 Fed.Appx. 96, 97 (8th Cir.2010); Stevenson v. FCI Waseca, 383 Fed.Appx. 587, 588 (8th Cir.2010); Handley v. Chapman, 587 F.3d 273, 282 (5th Cir.2009); Gardner v. Grandolsky, 585 F.3d 786, 791–92 (3d Cir.2009); Gatewood v. Outlaw, 560 F.3d 843, 848–49 (8th Cir.2009).

[1] The district court issued three separate opinions, each finding that the BOP's regulation is valid under APA § 706. Petitioners timely appealed. Petitioners argue that: (1) the articulated rationale is once again insufficient to justify the rule; (2) a heightened APA standard should apply to rules that involve the loss of liberty; (3) the legal error in the accompanying Program...