Ward v. Booker

• Decision Date: 19 January 2000
• Docket Number: 99-3129,Nos. 99-3125,99-3143,s. 99-3125
• Citation: 202 F.3d 1249
• Parties: (10th Cir. 2000) JAMES WARD, JIMMY SCROGER, and CHRISTOPHER LAMAR GUIDO, Petitioners - Appellees, v. J. W. BOOKER, Warden, Respondent - Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1249

202 F.3d 1249 (10th Cir. 2000)

JAMES WARD, JIMMY SCROGER, and CHRISTOPHER LAMAR GUIDO, Petitioners - Appellees, v. J. W. BOOKER, Warden, Respondent - Appellant.

Nos. 99-3125, 99-3129, 99-3143

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

January 19, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. D.C. NOS. CV-98-3274-RDR, CV-98-3260-RDR, CV-98-3266-RDR

Sean Connelly, United States Department of Justice, Denver, Colorado (Jackie N. Williams, United States Attorney, and Mary Kreiner Ramirez, Assistant United States Attorney, District of Kansas, Topeka, Kansas, with him on the briefs), for the Appellant.

Jill M. Wichlens, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender with her on the brief), Denver, Colorado, for the Appellees.

Before BALDOCK, McWILLIAMS, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

Petitioners James Ward, Jimmy E. Scroger, and Christopher Lamar Guido, former inmates at the Leavenworth Federal Prison Camp in Leavenworth, Kansas, brought these habeas actions against respondent J.W. Booker, the warden at Leavenworth, challenging a nationwide Bureau of Prisons ("BOP") rule which initially denied them a sentencing reduction available to certain inmates who successfully completed a drug treatment program. The BOP's rule initially denied the sentence reduction to petitioners because their sentences for drug offenses were enhanced under U.S.S.G. 2D1.1(b)(1) for possession of a firearm. The district court granted the three habeas petitions and ordered the BOP to reconsider each petitioner's request for a sentence reduction, without regard to the petitioners' receipt of 2D1.1(b)(1) sentencing enhancements. The BOP did so, determined that there was no other basis for denying the requests, and reduced each petitioner's sentence by one year.¹ It now appeals, arguing the district court erred in invalidating its application of its rule to initially deny petitioners' their sentence reductions. We affirm the district court.

BACKGROUND

I. Petitioners' Convictions and Sentences:

James Ward was convicted of possession with intent to distribute and distribution of heroin, in violation of 21 U.S.C. 841(a)(1). His sentence was enhanced under U.S.S.G. 2D1.1(b)(1) because an accessible firearm was found during a search of his residence. Jimmy Scroger was convicted of possession with intent to distribute and with attempted manufacture of methamphetamine, in violation of 21 U.S.C. 841(a)(1). His sentence was enhanced under 2D1.1(b)(1) because loaded firearms were found at the residence where he was arrested. Christopher Guido was convicted of attempted possession with intent to distribute cocaine, in violation of 21 U.S.C. 841(a)(1). His sentence was enhanced under 2D1.1(b)(1) because a loaded handgun was found on his person when he was arrested.

II. Statutory and Regulatory Provisions Relating to Drug Treatment Programs:

In the Violent Crime Control and Law Enforcement Act of 1994, Congress directed the BOP to make available to "eligible prisoners" residential substance abuse treatment programs. See 18 U.S.C. 3621(e)(1). "Eligible prisoners" are defined as those "determined by the Bureau of Prisons to have a substance abuse problem" and who are "willing to participate in a residential substance abuse treatment program." 18 U.S.C. 3621(e)(5)(B). To provide an incentive for prisoners to participate in the treatment programs, Congress provided that:

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). The statute does not define the term "convicted of a nonviolent offense." The statute also does not establish any additional criteria for determining eligibility for sentence reduction. The legislative history indicates Congress intended to give the BOP discretion to develop such additional criteria.² See Fristoe v. Thompson, 144 F.3d 627, 631 (10th Cir. 1998) ("It is undisputed that the BOP has been delegated the authority to interpret 3621(e)(2)(B).").

Accordingly, to establish such criteria, the BOP promulgated a regulation in 1995 which excluded from eligibility inmates whose "current offense" is "a crime of violence" as that term is defined in 18 U.S.C. 924(c)(3).³ See 28 C.F.R. 550.58 (1995). The BOP also issued Program Statement No. 5162.02 on July 24, 1995, which further explained its interpretation of the term "crime of violence." As this court noted in a prior decision addressing the validity of that Program Statement:

Section 9 of the Program Statement provide[d] that convictions . . . obtained under 21 U.S.C. 841 or 846, should be considered convictions for a "crime of violence" if the sentencing court increased the base level of the sentence for possession of a dangerous weapon during the commission of the offense. Under the rationale of the Program Statement and the regulation, then, [a conviction under 841] was not a "nonviolent offense," because of the sentencing enhancement and [the prisoner] was therefore ineligible for the sentence reduction.

Fristoe, 144 F.3d at 629-30. Thus, the initial Program Statement explicitly defined "nonviolent offense" under 18 U.S.C. 3621(e)(2)(B) to exclude offenses where a sentence was enhanced based upon possession of a firearm.⁴

Inmates around the country began to challenge the Program Statement. Among them was the petitioner in Fristoe, who articulated his argument to this court as "whether the BOP has adopted a permissible construction of the statute [18 U.S.C. 3621(e)(2)(B)]." Fristoe, 144 F.3d at 630. We concluded it had not: "[t]he BOP's interpretation violates the plain language of the statute and cannot be upheld." Id. at 631. We noted that most other courts had reached the same conclusion. See Martin v. Gerlinski, 133 F.3d 1076, 1079-81 (8th Cir. 1998); Bush v. Pitzer, 133 F.3d 455, 456-57 (7th Cir. 1997); Roussos v. Menifee, 122 F.3d 159, 161-64 (3d Cir. 1997); Downey v. Crabtree, 100 F.3d 662, 666-71 (9th Cir. 1996); but see Pelissero v. Thompson, 170 F.3d 442, 445-48 (4th Cir. 1999) (upholding the BOP's Program Statement against a similar challenge); Venegas v. Henman, 126 F.3d 760, 761-63 (5th Cir. 1997) (same).

Presumably in response to this judicial development, the BOP issued a new regulation and new Program Statement. These are the provisions applicable to and challenged by petitioners in this case. The current version of 28 C.F.R. 550.58 provides in part as follows:

An inmate who was sentenced to a term of imprisonment . . . for a nonviolent offense, and who is determined to have a substance abuse problem, and successfully completes a residential drug abuse treatment program during his or her current commitment may be eligible, in accordance with paragraph (a) of this section, for early release by a period not to exceed 12 months.

(a) Additional early release criteria.

(1) As an exercise of the discretion vested in the Director of the Federal Bureau of Prisons, the following categories of inmates are not eligible for early release:

. . . .

(vi) Inmates whose current offense is a felony:

(A) That has as an element, the actual, attempted, or threatened use of physical force against the person or property of another, or

(B) That involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device), or

(C) That by its nature or conduct, presents a serious potential risk of physical force against the person or property of another . . . .

28 C.F.R. 550.58. Additionally, on October 9, 1997, the BOP issued a new Program Statement, No. 5162.04, which states in pertinent part as follows:

As an exercise of the discretion vested in the Director, an inmate serving a sentence for an offense that falls under the provisions described below shall be precluded from receiving certain Bureau program benefits.

Inmates whose current offense is a felony that:

* has as an element, the actual, attempted, or threatened use of physical force against the person or property of another, or

* involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device), or

* by its nature or conduct, presents a serious potential risk of physical force against the person or property of another, . . . .

Program Statement 5162.04 at 7, Appellant's Opening Br. Addendum R-2 at 8-9. Like the previous Program Statement, the new Program Statement contains the example of a 21 U.S.C. 841 offense with a "Specific Offense Characteristic Enhancement" that renders the offender ineligible for sentence reduction. See supra n.4. As it explicitly states, "[a]ccordingly, an inmate who was convicted of manufacturing drugs (21 U.S.C. 841) and received a two-level enhancement for possession of a firearm has been convicted of an offense that will preclude him from receiving certain Bureau program benefits." Id. at 7(b), Appellant's Opening Br. Addendum R-2 at 12.

In sum, the new regulation and Program Statement lead to the same result as the prior, invalidated Program Statement, in that inmates whose sentences were enhanced because of firearms involvement are ineligible for the sentence reduction of 18 U.S.C. 3621(e)(2)(B). However, they purport to accomplish that result as an exercise of the BOP's discretion to determine eligibility criteria, not as an interpretation of the term "convicted of a nonviolent offense" under 3621(e)(2)(B). The crucial question presented by this case is whether that difference in methodology is meaningful and significant, or whether the rationale of Fristoe dictates the conclusion that the revised regulation and new Program Statement are also invalid.

DISCUSSION

As both parties agree, ...