Wottlin v. Fleming, 97-50636

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before KING, BARKSDALE and PARKER; PER CURIAM
• Citation: 136 F.3d 1032
• Parties: David WOTTLIN, Petitioner-Appellant, v. Lester E. FLEMING, Warden, Respondent-Appellee.
• Docket Number: No. 97-50636,97-50636
• Decision Date: 23 March 1998

Page 1032

136 F.3d 1032 David WOTTLIN, Petitioner-Appellant,
v.
Lester E. FLEMING, Warden, Respondent-Appellee. No. 97-50636. United States Court of Appeals,
Fifth Circuit. March 23, 1998.

Page 1033

David Wottlin, Bastrop, TX, pro se.

Page 1034

Appeal from the United States District Court for the Western District of Texas.

Before KING, BARKSDALE and PARKER, Circuit Judges.

PER CURIAM:

Petitioner-Appellant David Wottlin appeals the district court's dismissal of his 28 U.S.C. § 2241 habeas petition challenging the Bureau of Prisons' application of 28 C.F.R. § 550.58 to him and thereby rendering him ineligible for early release following his successful completion of a drug-abuse treatment program while in custody. We affirm the judgment of the district court.

I. FACTUAL & PROCEDURAL BACKGROUND

In 1993, Petitioner-Appellant David Wottlin was convicted of possession of methamphetamine with intent to distribute, and he was sentenced to seventy months in prison. In April 1994, Wottlin began a comprehensive drug-abuse treatment program (the Program) at the Federal Correctional Institution in Bastrop, Texas (FCI Bastrop). He asserts that before he entered the Program, FCI Bastrop officials indicated that if he completed it he would be eligible for early release pursuant to pending legislation that they believed Congress would soon pass. Wottlin admits, however, that subsection (e) of 18 U.S.C. § 3621, which authorized discretionary early release for prisoners that have completed a comprehensive drug-abuse treatment program, was not added to the statute until after he entered the Program. See 18 U.S.C. § 3621(e).

Wottlin completed the Program in March 1995, and Bureau of Prisons (BOP) officials thereafter denied his request for early release, explaining that he was not eligible because a new BOP regulation, enacted pursuant to § 3621(e), provided that an inmate who has "a prior conviction for homicide, forcible rape, robbery, or aggravated assault" was not eligible for early release under § 3621(e). 28 C.F.R. § 550.58. Wottlin was convicted of armed robbery in 1965.

Thereafter, Wottlin filed a § 2241 petition challenging the BOP's refusal to grant him early release. He contended that he was entitled to be released one year early pursuant to § 3621(e)(2)(B) and that the BOP, by enacting 28 C.F.R. § 550.58, which excluded him from eligibility for early release, had violated his constitutional rights under the Equal Protection, Due Process, and Ex Post Facto Clauses. He also argued that § 550.58 represented an erroneous administrative interpretation of § 3621(e).

Without requiring Respondent-Appellee Warden Lester Fleming to answer, a magistrate judge issued a report recommending that Wottlin's petition be dismissed, finding that the BOP had not abused its discretion in promulgating regulations construing § 3621(e) to exclude inmates who had previously been convicted of certain violent felonies from early-release eligibility. The magistrate judge also concluded that Wottlin's constitutional challenges were meritless.

Wottlin thereafter filed objections to the magistrate judge's recommendation, but the district court adopted the recommendation and dismissed Wottlin's petition. Wottlin timely filed notice of appeal, and the magistrate judge granted him permission to proceed in forma pauperis. ¹

II. DISCUSSION

Wottlin raises several issues on appeal. First, he argues that the BOP's interpretation of 18 U.S.C. § 3621(e)(2)(B), as embodied in 28 C.F.R. § 550.58, is incorrect and an abuse of discretion. Second, he raises three challenges to the application of § 550.58 to him, claiming that it violates his rights to due process and equal protection, and that it violates the Ex Post Facto Clause of the Constitution.

Page 1035

A. Promulgation of 28 C.F.R. § 550.58

Wottlin first argues that the BOP's interpretation of 18 U.S.C. § 3621(e)(2), as embodied in 28 C.F.R. § 550.58, is an abuse of discretion. He contends that in reviewing this issue the district court improperly bypassed the first step of the analysis required by the Supreme Court's decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), because it failed to acknowledge that the plain language of the statute made him eligible for early release. In addition, he asserts that § 3621(e) did not permit the BOP to apply its regulation to him retroactively and thereby revoke his eligibility for early release. Finally, he argues that the Administrative Procedure Act (APA), 5 U.S.C. § 551(4), (6), bars the retroactive application of 28 C.F.R. § 550.58.

Wottlin's argument relies on subsection (e) of § 3621, which was enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, and which he claims entitles him to early release:

(A) Generally.--Any prisoner who, in the judgment of the Director of the [BOP], has successfully completed a program of residential substance abuse treatment provided under paragraph (1) of this subsection, 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. § 3621(e)(2). Effective May 25, 1995, the BOP issued regulations governing substance-abuse treatment programs which state that 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. The following categories of inmates are not eligible: ... inmates who have a prior conviction for homicide, forcible rape, robbery, or aggravated assault.

28 C.F.R. § 550.58.

We review regulations such as § 550.58 under the two-step standard set out by the Supreme Court in Chevron: We look first to the intent of Congress, and if it is clear, "that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82. If, however, we find that the language of the statute is ambiguous or silent on a particular issue, then we turn to the second step of our analysis and "the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. at 2781. If the agency's interpretation is reasonable, the court will defer to its legislative regulations unless they are "arbitrary, capricious, or manifestly contrary to the statute." Id. at 844, 104 S.Ct. at 2782.

Wottlin contends that the plain language of § 3621(e)(2)(B) is unambiguous in that it makes inmates whose current convictions are for nonviolent offenses eligible for sentence reductions. In fact, the plain language of § 3621(e)(2)(B) states only that the sentence of a prisoner convicted of a "nonviolent offense" who has completed a drug-abuse treatment program "may be reduced by the...