Royal v. Tombone, 97-10941
| Decision Date | 03 June 1998 |
| Docket Number | No. 97-10941,97-10941 |
| Citation | 141 F.3d 596 |
| Parties | Talford H. ROYAL, Petitioner-Appellant, v. John TOMBONE, Warden, Federal Correctional Institution Seagoville, Texas, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Talford H. Royal, Seagoville, TX, pro se.
Joe C. Lockhart, Delonia Anita Watson, Dallas, TX, for Respondent-Appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before KING, SMITH and STEWART, Circuit Judges.
Petitioner-appellant Talford H. Royal appeals the district court's dismissal of his 28 U.S.C. § 2241 habeas corpus petition challenging the Bureau of Prisons' determination that he was not eligible for a sentence reduction following his successful completion of a drug-abuse treatment program while in custody. We affirm.
On April 18, 1994, petitioner-appellant Talford H. Royal robbed a Bank One branch in Dallas, Texas. Royal subsequently pled guilty to bank robbery in violation of 18 U.S.C. § 2113(a), and the district court sentenced him to sixty-three months of imprisonment.
On September 6, 1994, Royal enrolled in a residential drug-abuse treatment program at the federal correctional institute in El Reno, Oklahoma (FCI El Reno). He successfully completed the program, and he claims that the Bureau of Prisons (BOP) granted him a one-year sentence reduction pursuant to 18 U.S.C. § 3621(e). Thereafter, the BOP issued Change Notice CN-01 to Program Statement 5162.02, which classified bank robbery as a "crime of violence," thereby making Royal ineligible for a sentence reduction under § 3621(e). Royal contends that the BOP then revoked the sentence reduction that it had already granted to him.
Royal filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2241, contending that the revocation of his one-year sentence reduction based on the newly-issued Change Notice CN-01 amounted to a violation of his constitutional rights under the Due Process and Ex Post Facto Clauses. In addition, Royal claimed that Program Statement 5162.02, as modified by Change Notice CN-01, was invalid because it was not promulgated in accordance with the Administrative Procedure Act (APA), 5 U.S.C. § 552, and, alternatively, that even if it was valid, it should not have been applied to him retroactively. The government answered and conceded that Royal had exhausted his administrative remedies. Both parties thereafter agreed to a proceeding before a magistrate judge.
The magistrate judge noted that it was unclear from the parties' evidence whether the BOP had ever granted Royal a one-year sentence reduction. 1 Nevertheless, he concluded that Royal had failed to show the deprivation of a liberty interest even if it was assumed that he was granted a one-year reduction because the granting of sentence reductions to eligible inmates pursuant to § 3621(e) is left, by the terms of the statute, to the discretion of the BOP. The magistrate judge also concluded that Royal had failed to show that the BOP's action amounted to a breach of contract or an ex post facto violation. Accordingly, the magistrate judge denied Royal's § 2241 petition. Royal timely filed a notice of appeal.
In the context of a § 2241 petition, this court "reviews the district court's determinations of law de novo and its findings of facts for clear error." Venegas v. Henman, 126 F.3d 760, 761 (5th Cir.1997).
Royal contends that Change Notice CN-01 is invalid because it was not promulgated pursuant to the rules of the APA. 2 He further argues that even if it is valid, the BOP's grant and subsequent revocation of a one-year sentence reduction violated his constitutional rights as guaranteed by the Ex Post Facto and Due Process Clauses, 3 that it constituted a breach of contract, and that Program Statement 5162.02, as modified by Change Notice CN-01, 4 should not be applied to him retroactively. The government responds that Royal's rights were not violated because at all times the decision of whether or not to grant an early release was left to the discretion of the BOP. After providing a brief explanation of the statutes and regulations at issue, we address each of Royal's arguments in turn.
Subsection (e)(2) of § 3621, which was enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, states:
(A) Generally.--Any prisoner who, in the judgment of the Director of the [BOP], has successfully completed a program of residential substance abuse treatment provided under paragraph (1) of this subsection, shall remain in the custody of the [BOP] under such conditions as the [BOP] deems appropriate....
(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 [BOP], but such reduction may not be more than one year from the term the prisoner must otherwise serve.
18 U.S.C. § 3621(e)(2) (emphasis added).
Effective May 25, 1995, the BOP published regulations governing substance abuse treatment which state that an 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), inmates who have a prior conviction for homicide, forcible rape, robbery, or aggravated assault,....
28 C.F.R. § 550.58. On July 24, 1995, the BOP issued Program Statement 5162.02, which classified bank robbery as an offense that, depending on the "specific offense characteristic assigned," might fall within the definition of "crime of violence" and thereby render an inmate ineligible for a sentence reduction under § 3621(e). FEDERAL BUREAU OF PRISONS, U.S. DEP'T OF JUSTICE, PROGRAM STATEMENT NO. 5162.02, Definition of Term, "Crimes of Violence" § 9 (Jul. 24, 1995) [hereinafter PROGRAM STATEMENT 5162.02]. On April 23, 1996, the BOP altered Program Statement 5162.02 by issuing Change Notice CN-01, which stated that bank robbery should always be considered a "crime of violence." FEDERAL BUREAU OF PRISONS, U.S. DEP'T OF JUSTICE, PROGRAM STATEMENT NO. 5162.02, CHANGE NOTICE NO. CN-01, Definition of Term, "Crimes of Violence" § 11 (Apr. 23, 1996) [hereinafter CHANGE NOTICE CN-01].
Royal first argues that Program Statement 5162.02, as modified by Change Notice CN-01, is invalid because Change Notice CN-01 was not promulgated in accordance with the APA. Regulations promulgated in accordance with the APA are entitled to a significant amount of deference from a reviewing court. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984).
Less formally produced regulations such as Program Notice 5162.02 and Change Notice CN-01 are internal agency guidelines and are therefore "akin to ... 'interpretive rule[s]' that 'do[ ] not require notice and comment.' " Reno v. Koray, 515 U.S. 50, 61, 115 S.Ct. 2021, 2027, 132 L.Ed.2d 46 (1995) (quoting Shalala v. Guernsey Mem. Hosp., 514 U.S. 87, 99, 115 S.Ct. 1232, 1239, 131 L.Ed.2d 106 (1995)). As such, they are promulgated internally and may be altered at will by the BOP, Jacks v. Crabtree, 114 F.3d 983, 985 n. 1 (9th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1196, 140 L.Ed.2d 325 (1998), and they therefore are entitled to less deference than APA regulations. However, the Supreme Court has indicated that Program Statements are "still entitled to some deference" and will be upheld if they constitute a " 'permissible construction of the statute' " that they interpret. Reno, 515 U.S. at 61, 115 S.Ct. at 2027 (quoting Chevron, 467 U.S. at 843, 104 S.Ct. at 2782). Thus, we must consider whether Program Statement 5162.02, as modified by Change Notice CN-01, is a permissible interpretation of 18 U.S.C. § 924(c)(3), the statute it addresses.
Section 924(c)(3) defines a "crime of violence" in the following manner:
(3) For purposes of this subsection the term "crime of violence" means 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.
The United States Code defines the crime of bank robbery as follows:
(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; ...
...
Shall be fined under this title or imprisoned not more than twenty years, or both.
Program Statement 5162.02, as modified by Change Notice CN-01, states:
With regard to the specific crime of bank robbery, the offense should be considered a crime of violence pursuant to section 924(c)(3) since, due to the circumstances surrounding bank robberies, the offense involves an explicit or implicit threat of force and thus has as an element the "threatened use of physical force against the person or property of another."
CHANGE NOTICE CN-01, supra, § 11. Based on our reading of § 924(c)(3) and § 2113(a), we conclude that Program Statement 5162.02, as modified by Change Notice CN-01, constitutes a permissible interpretation of § 924(c)(3).
Royal next contends that Program Statement 5162.02, as modified by Change Notice CN-01, should not be applied to him retroactively. He...
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