Scroger v. Booker

• Decision Date: 10 February 1999
• Docket Number: No. 98-3260-RDR.,98-3260-RDR.
• Citation: 39 F.Supp.2d 1296
• Parties: Jimmy E. SCROGER, Petitioner, v. J.W. BOOKER, Jr., Respondent.
• Court: U.S. District Court — District of Kansas

39 F.Supp.2d 1296

Jimmy E. SCROGER, Petitioner, v. J.W. BOOKER, Jr., Respondent.

No. 98-3260-RDR.

United States District Court, D. Kansas.

February 10, 1999.

COPYRIGHT MATERIAL OMITTED

Jimmy E. Scroger, USP-Leavenworth, Leavenworth, KS, pro se.

Mary K. Ramirez, Office of United States Attorney, Topeka, KS, for J.W. Booker.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This is a petition for writ of habeas corpus, 28 U.S.C. § 2241, filed by an inmate of the Federal Prison Camp, Leavenworth, Kansas. The issue to be resolved is whether a prisoner convicted of a nonviolent drug offense, whose sentence was enhanced for possession of a firearm, was legally deemed by the Director of the Bureau of Prisons to be ineligible to receive the sentence reduction made available under 18 U.S.C. § 3621(e)(2)(B) to prisoners convicted of "nonviolent offenses."

An Order to Show Cause issued. Respondents filed an Answer and Return, and petitioner filed a brief in response. Having considered all the pleadings and attachments filed together with the relevant authorities, the court makes the following findings and order.

FACTS

The facts are not in dispute. Petitioner was sentenced in 1996 to a term of sixty-three months imprisonment for possession with intent to distribute methamphetamine, and attempt to manufacture methamphetamine, violations of 21 U.S.C. § 841(a)(1). At sentencing, the district court applied a two-level guideline enhancement of his offense level pursuant to U.S.S.G. § 2D1.1(b)(1) because Scroger was arrested at a residence where loaded, accessible firearms, as well as drugs, were discovered.

During his incarceration on October 27, 1997, Scroger participated in a "Comprehensive Drug Abuse Treatment Program" (DATP) and successfully completed the residential phase on July 1, 1998. Petitioner applied to the Bureau of Prisons (BOP) for a one-year reduction in his sentence. The BOP found Scroger "ineligible" for the reduction. A "Notification of Instant Offense Determination" (Doc. 8, Exhibit # 5) was issued on November 20, 1997 which stated that petitioner's "instant offense is a crime that excludes" him from early release under 18 U.S.C. § 3621(e). On this form, his offense was marked as a "crime of violence as contained in the Categorization of Offenses Program Statement¹."

At the first level, Scroger's administrative remedy request for reconsideration was denied by the warden on the basis that:

Program Statement 5162.04 ... provides that defendants who receive an enhancement as a result of possession of firearms shall be ineligible to receive certain Bureau of Prisons program benefits ...."

Scroger was said to be "ineligible for consideration of a sentence reduction based on (his) possession of a weapon during the commission of the instant offense." His administrative appeals were denied for the general reason that under P.S. 5162.04, his offense was within the categories of offenses which in the Director's discretion were "excluded from eligibility." Scroger exhibits and respondent admits that administrative remedies have been exhausted. Scroger's mandatory release date is February 10, 2000, and he alleges that he would be entitled to immediate release if he were to receive the sentence reduction.

CLAIMS

Petitioner challenges the decision of the Bureau of Prisons as contrary to and in excess of the plain statutory language of 18 U.S.C. § 3621(e)(2)(B); an improper retroactive application to him of amendments of the BOP's regulations; and invalid under the recent opinion of the Tenth Circuit Court of Appeals in Fristoe v. Thompson, 144 F.3d 627 (1998).

JUDICIAL REVIEW

A threshold consideration is whether or not this court has jurisdiction. The Administrative Procedure Act's provisions for judicial review of agency action are expressly made inapplicable by 18 U.S.C. § 3625 to the BOP's decisions regarding sentence reduction under § 3621(e). See e.g., LaSorsa v. Spears, 2 F.Supp.2d 550, 558 (S.D.N.Y.1998); Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir.1998); Davis v. Beeler, 966 F.Supp. 483, 489 (E.D.Ky. 1997). However, the Tenth Circuit has stated that while § 3625 may preclude the courts from reviewing the BOP's substantive decisions in these cases, it does not prevent the court from interpreting the statute to determine whether the BOP exceeded its statutory authority or violated the Constitution. See Fristoe, 144 F.3d at 630-31; Crawford v. Booker, 156 F.3d 1243, 1998 WL 567963, * 1, n. 3 (10th Cir.1998) (unpublished); see also Martin, 133 F.3d at 1076. Moreover, through habeas corpus this court may inquire into the legality under federal law of a prisoner's detention. See e.g., Downey v. Crabtree, 100 F.3d 662, 664 (9th Cir.1996); Roussos v. Menifee, 122 F.3d 159, 161, n. 3 (3d Cir.1997) (district court jurisdiction under § 2241 and 28 U.S.C. § 1331); see also, Fuller v. Moore, 133 F.3d 914 (4th Cir. 1997, (unpublished, per curiam, Table); Venegas v. Henman, 126 F.3d 760, 761 (5th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1679, 140 L.Ed.2d 817 (1998); Orr v. Hawk, 156 F.3d 651 (6th Cir.1998); Pearson v. Helman, 103 F.3d 133 (7th Cir.1996), unpublished); Sesler v. Pitzer, 110 F.3d 569 (8th Cir.) cert. denied, ___ U.S. ___, 118 S.Ct. 197, 139 L.Ed.2d 135 (1997); Byrd v. Hasty, 142 F.3d 1395, 1396 (11th Cir.1998); LaSorsa, 2 F.Supp.2d at 559. In each of the cited cases the BOP's interpretation of eligibility for sentence reduction under § 3621 was reviewed in a habeas corpus context.

The issues presented are purely legal. Consequently, an evidentiary hearing is not necessary.

ENABLING STATUTE — VCCLEA

The court begins by considering the statute which petitioner claims entitles him to early release, 18 U.S.C § 3621(e)(2). As part of the Crime Control Act of 1990, Congress required the BOP to "make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse." 18 U.S.C. § 3621(b). A few years later, to provide a new incentive to federal prisoners to enroll in and complete the BOP's drug treatment programs, Congress authorized the Bureau under § 3621(e)(2)(B) of the Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA), to reduce the sentences of eligible prisoners who completed a drug treatment program. The VCCLEA, promulgated in November, 1994, provides in pertinent part:

(2) Incentive for prisoners' successful completion of treatment program. —

(A) Generally. — Any prisoner who, in the judgment of the Director of the [BOP], has successfully completed a program of residential substance abuse treatment ..., 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. S 3621(e)(2). On its face, the statute unambiguously precludes the early release of prisoners convicted of violent offenses and limits reduction to one year or less for other prisoners having completed a drug abuse treatment program. See LaSorsa, 2 F.Supp.2d at 554.

BOP REGULATIONS AND PROGRAM STATEMENTS

Congress defined several terms in § 3621(e), but did not define "nonviolent offense." Nor does the statute specify criteria for awarding a reduction. Byrd, 142 F.3d at 1396; see also Fristoe, 144 F.3d at 631; Martin, 133 F.3d at 1078. Respondent explains in its Answer and Return (Doc. 8 at 6-7) that because of these gaps in the statute, and because the legislative history² of the statute left to the Bureau of Prisons the discretion to implement the program, the BOP developed criteria to determine which inmates would be eligible for early release.

28 C.F.R. § 550.58 (1996)

First, respondent states, the BOP "published an interim rule on May 25, 1995," [citing 60 Fed.Reg. 27695 (1995)], "codified at 28 C.F.R. § 550.58," which defined "nonviolent offense" as the converse of "a crime of violence." Under this rule, the qualification of "convicted of a nonviolent offense" was implemented by excluding from eligibility, among others, those persons whose current offense is determined to be a crime of violence as defined in 18 U.S.C. § 924(c)(3)³. In other words, the regulation did two things: (1) as a matter of statutory interpretation, it defined "prisoner convicted of a nonviolent offense" in § 3621(e)(2) — the type of prisoner the BOP is not forbidden to release early — to mean a prisoner whose "current offense" does not meet the definition of "crime of violence" in 18 U.S.C. § 924(c)(3). LaSorsa, 2 F.Supp.2d at 557. Second, it laid out certain criteria under which the BOP would categorically refuse to exercise its discretion to grant early release. Id.

PROGRAM STATEMENT 5330.10

At about the same time, the BOP published Program Statement 5330.10, Drug Abuse Programs Manual, Inmate, in the Federal Register setting forth guidelines for drug abuse treatment services (effective June 26, 1995). This Program Statement contains provisions on eligibility for early release in Chapter 6 (amended May 17, 1996 and October 9, 1997) which merely reiterate (and have changed with) the contents of the regulation.

PROGRAM STATEMENT 5162.02

On July 24, 1995, an additional Program Statement was adopted, P.S. 5162.02⁴, Definition of Term, "Crimes of Violence", to further interpret the language of the interim rule regarding the definition of the term "crime of violence" from Section 924(c)(3). Doc. 8 at 7. Section 5 of this program statement presented the "statutory definition" of "crime of violence" citing § 924(c)(3).

Section 9 of Program Statement 5162.02 enumerated various offenses in the United States Code, including 21 U.S.C. § 841, which "may be crimes of violence depending on the specific offense characteristic...