Samples v. Scibana

• Decision Date: 28 October 1999
• Docket Number: No. 98-CV-75045-DT.,98-CV-75045-DT.
• Citation: 74 F.Supp.2d 702
• Parties: John SAMPLES, Petitioner, v. Joseph SCIBANA, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

74 F.Supp.2d 702

John SAMPLES, Petitioner, v. Joseph SCIBANA, Respondent.

No. 98-CV-75045-DT.

United States District Court, E.D. Michigan, Southern Division.

October 28, 1999.

John Samples, Milan, MI, pro se.

Patricia Gaedeke, Asst. U.S. Atty., Detroit, MI, for Respondent.

OPINION AND ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

DUGGAN, District Judge.

Petitioner John Samples, a federal prisoner currently incarcerated at the Federal Correctional Institution in Milan, Michigan ("FCI Milan"), has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner seeks relief from a determination by the Bureau of Prisons ("BOP") that he would not be eligible for a sentence reduction under 18 U.S.C. § 3621(e)(2)(B) upon successful completion of a drug treatment program. Petitioner does not challenge his conviction or sentence in his petition. Respondent has filed an answer to the petition and petitioner has filed a reply to that answer. For the reasons stated below, the petition for a writ of habeas corpus shall be granted.

Background

The facts in this case are not in dispute. On January 21, 1997, petitioner was sentenced to sixty months imprisonment, five years of supervised release, and was fined $1,000.00 after being convicted in the United States District Court for the Southern District of West Virginia of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). Petitioner received a two-point enhancement at sentencing because police recovered a loaded .357 Magnum pistol while searching petitioner's residence during the course of his arrest. Petitioner's projected statutory release date is June 16, 2001.

While incarcerated at FCI Milan, petitioner requested that the BOP determine his eligibility for a sentence reduction of up to one year for participation in the BOP's Comprehensive Drug Abuse Treatment Program. Petitioner was informed that although he could participate in the program, he would be ineligible for a one-year sentence reduction under 18 U.S.C. § 3621(e)(2)(B) because he received a two-point sentence enhancement under the Federal Sentencing Guidelines for possession of a firearm in connection with his drug conviction. After exhausting his administrative remedies, petitioner filed the present petition for a writ of habeas corpus.

Discussion

Jurisdiction

This Court has jurisdiction to hear this petition. A petition for writ of habeas corpus filed by a federal inmate under 28 U.S.C. § 2241 is proper where the inmate is challenging the manner in which his or her sentence is being executed. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir.1998); United States v. Logan, 22 F.Supp.2d 691, 693 (W.D.Mich. 1998). A district court has jurisdiction over a federal prisoner's habeas corpus petition challenging the BOP's determination that he or she is ineligible for a sentence reduction under 18 U.S.C. § 3621(e)(2)(B). Scroger v. Booker, 39 F.Supp.2d 1296, 1299 (D.Kan.1999). The present habeas petition, filed after respondent's determination that petitioner was ineligible for a sentence reduction and petitioner's exhaustion of his administrative remedies, is ripe for consideration.¹ Birth v. Crabtree, 996 F.Supp. 1014, 1016 (D.Or. 1998).

Statutory and Administrative History

As part of the Violent Crime and Control Act of 1994 ("the Act"), Congress directed the BOP to make appropriate substance abuse treatment available for each prisoner that the BOP determines has a treatable condition of substance abuse or addiction. 18 U.S.C. § 3621(b). As an incentive for prisoner participation, Congress provided:

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.

18 U.S.C. § 3621(e)(2)(B).

Although Congress defined several terms contained in this subsection, it did not define the term "convicted of a nonviolent offense." Downey v. Crabtree, 100 F.3d 662, 664 (9th Cir.1996). To implement the Act and to establish criteria for sentence reductions under § 3621(e)(2)(B), the BOP promulgated 28 C.F.R. § 550.58 on May 25, 1995, and issued Program Statement 5162.02 on July 24, 1995. 28 C.F.R. § 550.58 defined "prisoner convicted of nonviolent offense" to mean a prisoner whose "current offense" does not meet the definition of a "crime of violence" as set forth in 18 U.S.C. § 924(c)(3). 28 C.F.R. § 550.58 also laid out certain criteria under which the BOP would categorically refuse to grant early release. Program Statement 5162.02 divided criminal offenses into four categories for determining an inmate's eligibility for a sentence reduction under the statute:

(1) criminal offenses that are crimes of violence in all cases;

(2) criminal offenses that may be crimes of violence depending on the base offense level assigned [under the Federal Sentencing Guidelines];

(3) criminal offenses that may be crimes of violence depending on the specific offense characteristic assigned; and

(4) criminal offenses that may be crimes of violence depending on a variety of factors.

(Program Statement 5162.02). When a prisoner's sentence includes a two-point enhancement for possession of a firearm under § 2D1.1(b)(1) of the Federal Sentencing Guidelines, the BOP has ruled that such possession "automatically converts a predicate offense to a crime of violence." Downey, 100 F.3d at 663.

A number of federal courts have rejected this categorical denial of early release for federal prisoners convicted of drug trafficking offenses whose sentences have been enhanced for firearm possession under the Federal Sentencing Guidelines. For example, in Downey, the United States Court of Appeals for the Ninth Circuit held that the BOP's categorical denial of early release to inmates convicted under 21 U.S.C. § 841(a) who receive a sentence enhancement for possession of a firearm conflicts with the statutory language "convicted of a nonviolent offense." Downey, 100 F.3d at 668. The Ninth Circuit ruled that the BOP may only look to the prisoner's offense of conviction to determine whether he or she has been convicted of a `nonviolent offense' and may not take into account sentence enhancements. Id. at 668-70; see also Davis v. Crabtree, 109 F.3d 566, 569 (9th Cir.1997).

In Fristoe v. Thompson, 144 F.3d 627, 631 (10th Cir.1998), the Tenth Circuit held that reliance by the BOP on sentencing enhancements, in determining eligibility for a sentence reduction under § 3621(e)(2)(B), conflicts with the plain language of § 3621(e)(2)(B), which refers to prisoners "convicted of a nonviolent offense." The Tenth Circuit concluded that the statute does not permit resort to sentencing factors or sentence enhancements associated with a nonviolent offense. The eligibility criteria contained in § 3621(e)(2)(B) refer directly to the offense for which a prisoner is convicted. Id.

Other federal circuit courts have also rejected the BOP's interpretation of the statute. See Byrd v. Hasty, 142 F.3d 1395, 1397 (11th Cir.1998) (BOP could not rely on inmate's firearm sentence enhancement to deny application for sentence reduction under § 3621 because violations of 21 U.S.C. §§ 846 and 841(a)(1) are not crimes of violence and § 3621(e)(2)(B) addresses the act of conviction, not sentence enhancement); Martin v. Gerlinski, 133 F.3d 1076 (8th Cir.1998); Bush v. Pitzer, 133 F.3d 455 (7th Cir.1997); Roussos v. Menifee, 122 F.3d 159 (3d Cir.1997); but see Pelissero v. Thompson, 170 F.3d 442, 447 (4th Cir.1999) (finding that the 1995 BOP regulation and program statement constitute a reasonable interpretation of the statute); Venegas v. Henman, 126 F.3d 760, 763 (5th Cir.1997), cert. denied, 523 U.S. 1108, 118 S.Ct. 1679, 140 L.Ed.2d 817 (1998); LaPlante v. Pontesso, 961 F.Supp. 186, 189 (E.D.Mich.1997) (Rosen, J.) ("The Court acknowledges that violations of 21 U.S.C. § 841(a)(1) generally are not considered to be crimes of violence under 18 U.S.C. § 924. This Court, however, has chosen to take a case by case approach here by inquiring into the facts underlying petitioner's conviction."). Id. at 188 (citations omitted).

In October 1997, the BOP implemented a revised 28 C.F.R. § 550.58. The revised regulation abandoned incorporation of the "crime of violence" definition in 18 U.S.C. § 924(c)(3) and adopted new criteria for determining a prisoner's eligibility for early release due to participation in a drug treatment program. 28 C.F.R. § 550.58(a)(1)(vi)(B) indicates that a prisoner whose current offense is a felony involving "the carrying, possession or use of a firearm or other dangerous weapons or explosives" is not eligible for early release under § 3621(e)(2)(B). The BOP also issued Program Statement 5162.04, entitled "Categorization of Offenses," effective October 9, 1997. Section 2 of Program Statement 5162.04 provides that "[a]n inmate will be denied the benefits of certain programs if his or her offense is either a crime of violence or an offense identified at the discretion of the Director of the Bureau of Prisons." Section 7 provides that BOP staff must look at factors, such as possession of a firearm, which subject a prisoner to sentence enhancement under § 2D1.1 and § 2D1.11 of the Federal Sentencing Guidelines. Section 7 reasons that this specific offense characteristic may "pose a serious potential risk that force may be used against persons or property." Id. Section 7 further states that a prisoner convicted of manufacturing drugs under 18 U.S.C. § 841, who receives a two-level sentence enhancement for possession of a firearm, "has been convicted of an offense that will preclude the inmate from receiving certain Bureau program benefits." Id.

Application of the Revised Regulation and Program Statement

In the present case, respondent excluded petitioner from consideration for early release due to pet...