Wiggins v. Wise

• Citation: 951 F.Supp. 614
• Decision Date: 09 October 1996
• Docket Number: Civil Action No. 1:96-0113.
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Jonnae WIGGINS, Petitioner, v. Phillip WISE, Warden, and Federal Bureau of Prisons, Respondents.

951 F.Supp. 614

Jonnae WIGGINS, Petitioner, v. Phillip WISE, Warden, and Federal Bureau of Prisons, Respondents.

Civil Action No. 1:96-0113.

United States District Court, S.D. West Virginia, Bluefield.

October 9, 1996.

COPYRIGHT MATERIAL OMITTED

Hunt L. Charach, Federal Public Defender, Charleston, WV, for plaintiff.

Michael L. Keller, Assistant U.S. Attorney, Rebecca A. Betts, U.S. Attorney, Charleston, WV, Bill Burlington, FCI Butner, Butner, NC, for respondents.

JUDGMENT ORDER

FABER, District Judge.

On February 14, 1996, petitioner filed an application for habeas corpus and declaratory relief. Petitioner contests the Bureau of Prisons policy which denied her eligibility for early release under a drug treatment program provided for by 18 U.S.C. § 3621(e)(2). Petitioner, an inmate at the Federal Prison Camp in Alderson, West Virginia, is currently serving a 37-month sentence for conspiracy to distribute and possession with intent to distribute heroin. At sentencing, petitioner received a two-level enhancement for possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1). Petitioner contends that but for the Bureau of Prisons policy denying early release to prisoners who receive enhancements for possession of dangerous weapons, she would be eligible for immediate release. Petitioner's projected release date, absent eligibility for early release, is December 30, 1996. Both sides agree that petitioner has exhausted her administrative remedies.

On March 4, 1996, respondents filed a motion to dismiss, arguing that 18 U.S.C. § 3625 forecloses review under the Administrative Procedures Act (APA) of actions taken by the Bureau of Prisons pursuant to 18 U.S.C. §§ 3621-3626.

By Standing Order entered on October 6, 1994, and filed in this action on February 14, 1996, this action was referred to United States Magistrate Judge Mary S. Feinberg pursuant to 28 U.S.C. § 636(b)(1)(B). On May 29, 1996, Magistrate Judge Feinberg submitted her findings of fact and recommended the following:

(1) that the respondent's motion to dismiss for lack of subject matter jurisdiction under the Administrative Procedure Act and 18 U.S.C. § 3625 be dismissed except to the extent that plaintiff seeks judicial review of her individual claim to participate in the incentive program.

(2) that the district court hold unlawful and set aside Program Statement 5162.02 for failure to comply with the rule-making provisions of the APA.

(3) that the district court hold unlawful and set aside Program Statement 5162.02, Section 9 as being in excess of statutory authority.

(4) that the district court declare that petitioner is a "prisoner convicted of a nonviolent offense," within the meaning of 18 U.S.C. § 3621(e)(2)(B).

(Findings and Recommendations at 67-68.)

In accordance with the provisions of 28 U.S.C. § 636(b), the parties were allotted ten days and three mailing days in which to file objections to the Magistrate Judge's Findings and Recommendations. By Order entered on June 4, 1996, the court granted the parties an extension of time until June 25, 1996, in which to file objections. Respondents filed their objections on June 25, 1996. Petitioner filed a response to respondents' objections on September 3, 1996. In accordance with 28 U.S.C. § 636(b)(1)(B), the court has conducted a de novo review of the record.

Section 3621 of the Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA) provided for substance abuse treatment in federal prisons. It also established incentives for prisoners to participate in these programs by allowing the Bureau of Prisons to reduce by not more than one year the sentence of any prisoner who participated in a substance abuse program provided the prisoner had been "convicted of a nonviolent offense." 18 U.S.C. § 3621(e)(2). The statute reads in pertinent part as follows:

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

(A) Generally. Any prisoner who, in the judgment of the Director of the Bureau of Prisons, has successfully completed a program of residential substance abuse treatment provided under paragraph (1) of this subsection, shall remain in the custody of the Bureau under such conditions of confinement as the Bureau deems appropriate. If the conditions of confinement are different from those the prisoner would have experienced absent the successful completion of the treatment, the Bureau shall periodically test the prisoner for substance abuse and discontinue such conditions on determining that substance abuse has recurred.

(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 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).

At issue here is the meaning of the phrase "a prisoner convicted of a nonviolent offense." The legislative history of this statute provides no guidance, and nowhere else in the United States Code is the term "nonviolent offense" used.

In implementing this ambiguous code section, the Bureau of Prisons adopted 28 C.F.R. § 550.58 which states in pertinent part as follows:

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, in accordance with paragraph (a) of this section, ... unless the inmate's current offense is determined to be a crime of violence as defined in 18 U.S.C. § 924(c)(3), or unless the inmate has a prior federal and/or state conviction for homicide, forcible rape, robbery, or aggravated assault.

The regulation was more precise than the statute in three ways: it defined a "nonviolent offense" as an offense which was not a "crime of violence;" it explained that the offense relevant to this analysis was the "current offense" or offense of conviction; and it provided that certain violent prior offenses would also disqualify a prisoner from the incentive program.

The provisions of this regulation were implemented by Bureau of Prisons Program Statement 5162.02 ("the Program Statement"). The Program Statement purports to comply with the following definition of "crime of violence" found in 18 U.S.C. § 924(c)(3):

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.

Although 28 C.F.R. § 550.58 and the Program Statement defined "crime of violence" with reference to 18 U.S.C. § 924(c)(3), BOP officials claim they did not intend to adopt the body of case law which interprets that definition. (Resp.Mem.Dec. of Ms. Garrett at ¶ 9.) Section nine of Program Statement 5162.02 ("section nine"), to which petitioner objects, directs prison officials to consider the "Specific Offense Characteristics" contained in the presentence investigation report in determining whether a particular crime should be defined as a crime of violence.¹ In applying this program statement to petitioner, the BOP defined her offense of conviction (conspiracy to distribute and possession with intent to distribute heroin) as a crime of violence since petitioner had received a two-level enhancement for possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1). Petitioner challenges the validity of Program Statement 5162.02, contending that it was not promulgated correctly pursuant to the APA or alternatively is an ultra vires interpretation of section 3621(e)(2)(B). This opinion addresses only the applicable section of the Program Statement, section nine.

The first question this court must address is whether judicial review under the APA is precluded by 18 U.S.C. § 3625. There is a presumption favoring judicial review of administrative action, which applies absent "clear and convincing evidence" that Congress intended to foreclose judicial review. Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511-12, 18 L.Ed.2d 681 (1967). Such evidence can come in the form of "specific [statutory] language or specific legislative history that is a reliable indicator of congressional intent." Block v. Community Nutrition Institute, 467 U.S. 340, 349, 104 S.Ct. 2450, 2455, 81 L.Ed.2d 270 (1984).

Congress clearly intended to preclude review of certain decisions made pursuant to 18 U.S.C. § 3621. 18 U.S.C. § 3625 provides that "[t]he provisions of sections 554 and 555 and 701 through 706 of title 5, United States Code, do not apply to the making of any determination, decision, or order under this subchapter [sections 3621-3626]."

Sections 554 and 555 of the APA apply only to "adjudications," that is determinations which apply rules to individual cases. 5 U.S.C. §§ 554, 555; see, e.g., Hercules, Inc. v. Environmental Protection Agency, 598 F.2d 91 (D.C.Cir.1978). Sections 701 through 706 deal generally with judicial review of agency action; however, 18 U.S.C. § 3625 states that it is only decisions, determinations and orders to which they do not apply.² This distinction between a "decision, determination [or] order" and a rule is reinforced by the conspicuous failure of 18 U.S.C. § 3625 to preclude review under 5 U.S.C. § 553, the section governing rulemaking under the APA. The only case, thus far, to address 18 U.S.C. § 3625 held that courts were precluded from reviewing adjudicative decisions of agencies but were not precluded from reviewing rulemaking decisions. Lyle v. Sivley, 805 F.Supp. 755 (D.Ariz.1992). Moreover the House Report on Section 3625 "provides that rule-making activities are to be reviewed under the APA, while `adjudication[s] of specific cases' are not." Id. at 759. Accordingly, the court finds that 18 U.S.C §...