Williams v. Clark

• Decision Date: 21 May 1999
• Docket Number: No. CV98-7610-RC.,CV98-7610-RC.
• Court: U.S. District Court — Central District of California
• Parties: Robert Eugene WILLIAMS, Petitioner, v. Dick CLARK, Warden, Respondent.

52 F.Supp.2d 1145

Robert Eugene WILLIAMS, Petitioner, v. Dick CLARK, Warden, Respondent.

No. CV98-7610-RC.

United States District Court, C.D. California.

May 21, 1999.

Robert Eugene Williams, San Pedro, CA, pro se.

Lucy Koh, Asst. U.S. Atty., Los Angeles, CA, for respondent.

MEMORANDUM DECISION AND ORDER

CHAPMAN, United States Magistrate Judge.

On September 21, 1998, petitioner Robert Eugene Williams, a federal prisoner incarcerated by the Bureau of Prisons ("BOP") at the Federal Correctional Institute ("FCI") Terminal Island, filed a Petition for Habeas Corpus, with supporting memorandum of points and authorities and exhibits, challenging BOP's determination that he is not eligible for early release under 18 U.S.C. § 3621(e)(2)(B) if he successfully completes a drug abuse treatment program. The petitioner does not challenge his criminal conviction or sentence. On December 7, 1998, respondent filed his Return. On February 3, 1999, petitioner filed his Traverse. The parties have consented to proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c).

BACKGROUND

On March 27, 1997, in the United States District Court for the District of Colorado, petitioner pleaded guilty to, and was convicted of, one count of possession with intent to distribute cocaine base, aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii) and 18 U.S.C. § 2. Return, Exh. A, at 28-29, Exh. B at 33-48. On June 25, 1997, the court increased petitioner's offense level by two levels under United States Sentencing Guidelines ("U.S.S.G.") § 2D1.1(b)(1) "since three firearms were possessed in conjunction with th[e] offense," and sentenced petitioner to sixty months, plus five years supervised release. Return, Exh. A at 28-31, Exh. B at 38. The petitioner's projected date of release is April 26, 2001. Return, Exh. I at 96.

On November 19, 1997, while imprisoned at FCI Terminal Island, petitioner voluntarily agreed to participate in a residential drug abuse treatment program ("RDAP").¹ Return, Exh. E at 69-71. On November 24, 1997, petitioner entered RDAP.² Return, Exh. F at 73. On August 14, 1998 petitioner completed the 500 hours of RDAP and commenced transitional services programming.³ Return, Exh. F at 73; Memo., Exh. D.

DISCUSSION

I

On September 13, 1994, Congress passed the Violent Crime Control and Law Enforcement Act of 1994 ("Act"), which, inter alia, directed BOP to "make available appropriate substance abuse treatment for each prisoner the [BOP] determines has a treatable condition of substance addiction or abuse." 18 U.S.C. § 3621(b). As an incentive for a prisoner to participate in substance abuse treatment while in custody, Congress provided that "[t]he 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)(B) (emphasis added). As the Ninth Circuit has noted:

The express purpose of [18 U.S.C.] § 3621(e) is to provide prisoners with an "incentive" to enter and complete a substance abuse treatment program, and it does so in the case of nonviolent offenders by offering them a sentence reduction of up to one year, at the discretion of the Bureau of Prisons. While some prisoners may be willing to enroll, and even to complete treatment, simply on the basis of a reasonable expectation that they will be found eligible, or even simply because they desire to cure themselves of drug addiction, prisoners who know prior to enrollment that they are eligible to receive a shorter sentence are likelier to enroll, and those who are found during the course of the program to be eligible for early release are likelier to complete the program. Thus, the Bureau's ability to render final eligibility decisions that are subject to completion of the drug treatment program enables it to make more effective use of the program.

Cort v. Crabtree, 113 F.3d 1081, 1085 (9th Cir.1997).

Congress defined several terms in Section 3621(e)(2)(B), but it did not define the term "convicted of a nonviolent offense." Downey v. Crabtree, 100 F.3d 662, 664 (9th Cir.1996); Byrd v. Hasty, 142 F.3d 1395, 1396 (11th Cir.1998). Thus, to implement the Act and to establish the specific criteria for sentence reductions under 18 U.S.C. § 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. As the federal courts have noted:

[28 C.F.R. § 550.58] did two things: (1) as a matter of statutory interpretation, it defined "prisoner convicted of a nonviolent offense" in [18 U.S.C.] § 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). Second, it laid out certain criteria under which the BOP would categorically refuse to exercise its discretion to grant early release.

Guido v. Booker, 37 F.Supp.2d 1289, 1293 (D.Kan.1999) (citations omitted); LaSorsa v. Spears, 2 F.Supp.2d 550, 557 (S.D.N.Y. 1998). To further interpret the term "crime of violence" from 18 U.S.C. § 924(c)(3), Program Statement 5162.02 divided criminal offenses into four categories: (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; (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. Guido, 37 F.Supp.2d at 1293-94; LaSorsa, 2 F.Supp.2d at 558. "For categories 2 and 3, BOP personnel were instructed to examine the sentence imposed by the court and whether under the sentencing guidelines the court had found the offense involved violence." LaSorsa, 2 F.Supp.2d at 558.⁴ When the prisoner's sentence included an enhancement for the possession of a firearm, the BOP "categorically rule[d]" that such possession "automatically converts a predicate offense to a crime of violence." Downey, 100 F.3d at 663.⁵

The Ninth Circuit, in Downey, held that BOP's categorical denial, under 28 C.F.R. § 550.58 and BOP Program Statement 5162.02, of early release credit for inmates convicted under 21 U.S.C. § 841(a), who also received a sentence enhancement for the possession of a firearm, conflicted with the term "convicted of a nonviolent offense" in Section 3621(e)(2)(B). Downey, 100 F.3d at 668. Instead, "Downey held that the BOP may only look to the inmate's offense of conviction when considering whether an inmate has been convicted of a `nonviolent offense,' and may not take into account sentencing enhancers."⁶ Davis v. Crabtree, 109 F.3d 566, 569 (9th Cir.1997);⁷ Downey, 100 F.3d at 668-70.

The BOP, in response to the decisions in Downey, Davis and related cases, promulgated amendments to 28 C.F.R. § 550.58, which provided in relevant part:

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:

(i) INS detainees;

(ii) Pretrial inmates;

(iii) Contractual boarders ...;

(iv) Inmates who have a prior felony or misdemeanor conviction for homicide, forcible rape, robbery or aggravated assault, or child sexual abuse offenses;

(v) Inmates who are not eligible for participation in a community based program ...; [and]

(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 weapons or explosives ..., or

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

(D) That by its nature or conduct involves sexual abuse offenses committed upon children.

28 C.F.R. § 550.58(a)(1) (October 15, 1997) (emphasis added). To assist BOP staff in understanding the amendments to Section 550.58, BOP issued Program Statement 5162.04, "Categorization of Offenses," effective October 9, 1997. Return, Exh. H at 76-94. 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." Id. at 76 (emphasis added). Section 5 provides:

The offenses contained in these titles that may be crimes of violence are listed in Section 6.⁸ Section 7 lists offenses that are not categorized as crimes of violence, but would nevertheless preclude an inmate's receiving certain Bureau program benefits at the Director's discretion. [¶] ... [A]n inmate may be denied the benefits of [early release under 18 U.S.C. § 3621(e)(2)(B)] if he or she was convicted of an offense listed in either Section 6 or 7. When an inmate may be denied a program benefit under either Section 6 or 7, staff must carefully explain the basis for the denial. For example, if an inmate is convicted of an offense listed in Section 7, the inmate should be denied a program benefit because he or she committed an offense identified at the Director's discretion, rather than a crime of violence.

Id. at 77 (emphasis added). Section 7 similarly provides:

[A]n inmate may be denied program benefits if he or she was convicted of an offense listed in either this section or Section 6. If an inmate is denied the benefit of such a program, staff must carefully describe the basis for the denial. For example, if an inmate is convicted of an offense listed in this section, the inmate shall be denied a program benefit because he or she committed an offense identified at the Director's discretion, rather than a...