Britt v. Plumley

Filing 26

ORDER DENYING Respondent's 14 Motion to Dismiss, Denying Petition for Writ of Habeas Corpus, and Directing the Clerk of Court to Close Case, signed by Magistrate Judge Erica P. Grosjean on 12/19/18. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LANDON BRITT,

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Case No. 1:18-cv-00386-EPG-HC
ORDER DENYING RESPONDENT’S
MOTION TO DISMISS, DENYING
PETITION FOR WRIT OF HABEAS
CORPUS, AND DIRECTING THE CLERK
OF COURT TO CLOSE CASE

Petitioner,

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v.

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BRUCE PLUMLEY,

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Respondent.

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(ECF No. 14)
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Petitioner Landon Britt is a federal prisoner proceeding pro se with a petition for writ of

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16 habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner asserts that the Federal Bureau of
17 Prison’s categorical exclusion of 21 U.S.C. § 846 offenders with firearm enhancements from
18 early release consideration after completing the Residential Drug Abuse Treatment Program
19 exceeds its statutory authority under 18 U.S.C. § 3621 and is arbitrary and capricious, in
20 violation of 5 U.S.C. § 706(2)(A).
For the reasons discussed herein, the Court denies Respondent’s motion to dismiss and

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22 denies the petition for writ of habeas corpus.
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I.

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BACKGROUND
Petitioner is currently incarcerated at the Federal Correctional Institution in Mendota,

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26 California. (ECF No. 20 at 1). Petitioner pleaded guilty to one count of conspiracy to import,

27 manufacture, distribute, possess with intent to distribute anabolic steroids, marijuana, oxycodone
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Page numbers refer to the ECF page numbers stamped at the top of the page.

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1 and hydrocodone, in violation of 21 U.S.C. § 846, and one count of international money
2 laundering conspiracy, in violation of 18 U.S.C. § 1956(a)(2)(A) and (h). (ECF No. 20-1 at 2;
3 ECF No. 18 at 3). The sentencing court’s guideline range determination included a two-level
4 enhancement pursuant to § 2D1.1(b)(1) of the United States Sentencing Guidelines (“USSG”)
5 for possession of a firearm.2 (ECF No. 18 at 3). Petitioner is currently serving two concurrent
6 fifty-seven-month terms of imprisonment.3 (ECF No. 20-1 at 9–10).
On July 19, 2016, an initial offense review found Petitioner to be precluded from early

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8 release due to his current convictions for conspiracy and international money laundering
9 pursuant to 28 C.F.R. § 550.55(b)(5)(ii)–(iii) and (b)(6). The initial offense review finding was
10 approved on August 9, 2016. (ECF No. 20 at 5, 7; ECF No. 20-1 at 52–53).
On March 22, 2018, Petitioner filed the instant petition for writ of habeas corpus. (ECF

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12 No. 1). On June 8, 2018, Respondent filed a motion to dismiss, or in the alternative, response to
13 the petition. (ECF No. 14). On July 23, 2018, Petitioner filed an opposition. (ECF No. 21). The
14 parties have consented to the jurisdiction of a United States magistrate judge to conduct all
15 proceedings in this case pursuant to 28 U.S.C. § 636(c). (ECF Nos. 5, 7).
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II.

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DISCUSSION

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A. Residential Drug Abuse Treatment Program (“RDAP”)

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In 1990, Congress directed the Federal Bureau of Prisons (“BOP” or “Bureau”) to “make

20 available appropriate substance abuse treatment for each prisoner the Bureau determines has a
21 treatable condition of substance addiction or abuse.” 18 U.S.C. § 3621(b); Peck v. Thomas, 697
22 F.3d 767, 770 (9th Cir. 2012). The BOP offers a Residential Drug Abuse Treatment Program
23 (“RDAP”), which is an intensive drug treatment program for federal inmates with verifiable
24 substance use disorders. 28 C.F.R. § 550.53(b). As an incentive for successful completion of
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The application of the USSG § 2D1.1(b)(1) sentencing enhancement appears to have been incorporated as a part of

26 Petitioner’s plea agreement. (ECF No. 1 at 7). Petitioner’s presentence report, which was adopted by the sentencing
court without change, noted that when Petitioner was arrested at his residence, law enforcement found five loaded

27 firearms and one unloaded firearm in various rooms in addition to ammunition and firearm magazines. (ECF No. 18
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at 2; ECF No. 19 at 2).
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Petitioner was originally sentenced to two concurrent seventy-month terms of imprisonment. (ECF No. 20-1 at 2).

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1 RDAP, Congress has determined that “[t]he period a prisoner convicted of a nonviolent offense
2 remains in custody . . . may be reduced by the Bureau of Prisons, but such reduction may not be
3 more than one year from the term the prisoner must otherwise serve.” 18 U.S.C. § 3621(e)(2)(B).
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“Under the authority delegated by this statute, the BOP has implemented a regulation that

5 categorically excludes certain classes of inmates from eligibility for § 3621(e)’s early release
6 incentive.” Peck, 697 F.3d at 770. The exclusions pertinent to the instant petition include:
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(5) Inmates who have a current felony conviction for:
(i) An offense that has as an element, the actual, attempted, or
threatened use of physical force against the person or property
of another;
(ii) An offense that involved the carrying, possession, or use of
a firearm or other dangerous weapon or explosives (including
any explosive material or explosive device);
(iii) An offense that, by its nature or conduct, presents a serious
potential risk of physical force against the person or property of
another; or
(iv) An offense that, by its nature or conduct, involves sexual
abuse offenses committed upon minors;
(6) Inmates who have been convicted of an attempt, conspiracy, or
solicitation to commit an underlying offense listed in paragraph
(b)(4) and/or (b)(5) of this section;

18 28 C.F.R. § 550.55(b) (2016). Here, the BOP found Petitioner to be precluded from early release
19 due to his current convictions for conspiracy and international money laundering pursuant to 28
20 C.F.R. § 550.55(b)(5)(ii)–(iii) and (b)(6). (ECF No. 20 at 5, 7; ECF No. 20-1 at 52–53).
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“The history of the BOP’s attempts to implement these categorical exclusions is

22 lengthy . . . . Initially, the regulation defined the term ‘nonviolent offense’ in § 3621(e) with
23 reference to the statutory definition of ‘crime of violence’ found in 18 U.S.C. § 924(c)(3).” Peck,
24 697 F.3d at 770 (citing 28 C.F.R. § 550.58 (1995)). There was a circuit split with respect to the
25 validity of the regulation, and so “[i]n 1997, the BOP published an interim rule, effective
26 immediately, that categorically excluded from eligibility for early release inmates with current
27 convictions for felony offenses ‘involv[ing] the carrying, possession, or use of a firearm.’” Peck,
28 697 F.3d at 770 (quoting 28 C.F.R. § 550.58(a)(1)(vi) (1998)). The Supreme Court held that the

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1 1997 rule was a permissible exercise of the BOP’s discretion under § 3621(e)(2)(B). Lopez v.
2 Davis, 531 U.S. 230, 233 (2001). The Supreme Court in Lopez declined to address whether “the
3 Bureau violated the notice and comment requirements of the Administrative Procedure Act when
4 it published the 1997 regulation.” Id. at 244 n.6.
The 1997 interim rule was finalized in 2000 without change. The Ninth Circuit “held that

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6 the 2000 rule, insofar as it categorically excluded inmates convicted of firearm-possession
7 offenses, was arbitrary and capricious under § 706(2)(A) of the APA [Administrative Procedure
8 Act] because the agency failed to give a reasoned basis for its action.” Peck, 697 F.3d at 770
9 (citing Arrington v. Daniels, 516 F.3d 1106, 1113–14 (9th Cir. 2008)). The BOP subsequently
10 enacted identical provisions in a 2009 rule, which the Ninth Circuit held did not violate the APA.
11 Peck, 697 F.3d at 776.
In 2016, the BOP amended 28 C.F.R. § 550.55(b)(6). The 2016 amendments did not

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13 include changes to the relevant provisions of 28 C.F.R. § 550.55(b)(5)(ii)–(iii). As Petitioner’s
14 early release determination occurred after the 2016 amendments became effective, the Court will
15 address the regulations in place at that time.
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B. Jurisdiction Under 28 U.S.C. § 2241

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Petitioner asserts that the BOP’s categorical exclusion of 21 U.S.C. § 846 offenders from

18 early release consideration after completing RDAP is arbitrary and capricious, in violation of
19 § 706(2)(A) of the APA. “The APA provides a cause of action for persons ‘suffering legal wrong
20 because of agency action, or adversely affected or aggrieved by agency action within the
21 meaning of a relevant statute,’ but withdraws that cause of action to the extent that the relevant
22 statute ‘preclude[s] judicial review’ or the ‘agency action is committed to agency discretion by
23 law.’” Reeb v. Thomas, 636 F.3d 1224, 1226 (9th Cir. 2011) (quoting 5 U.S.C. §§ 702, 701(a)).
24 Relying on 18 U.S.C. § 3625,4 Respondent argues that this Court lacks subject matter jurisdiction
25 to entertain a challenge to the BOP’s discretionary determination about whether to grant or deny
26 a sentence reduction under 18 U.S.C. § 3621(e). (ECF No. 14 at 7).
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“The provisions of sections 554 and 555 and 701 through 706 of title 5, United States Code, do not apply to the

28 making of any determination, decision, or order under this subchapter.” 18 U.S.C. § 3625.
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With respect to the applicability of the judicial review provisions of the APA to the

2 BOP’s RDAP determinations, the Ninth Circuit has held:
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There is no ambiguity in the meaning of 18 U.S.C. § 3625. The
plain language of this statute specifies that the judicial review
provisions of the APA, 5 U.S.C. §§ 701–706, do not apply to “any
determination, decision, or order” made pursuant to 18 U.S.C.
§§ 3621–3624. The BOP has authority to manage inmate drug
treatment programs, including RDAP, by virtue of 18 U.S.C.
§ 3621. To find that prisoners can bring habeas petitions under 28
U.S.C. § 2241 to challenge the BOP’s discretionary determinations
made pursuant to 18 U.S.C. § 3621 would be inconsistent with the
language of 18 U.S.C. § 3625. Accordingly, any substantive
decision by the BOP to admit a particular prisoner into RDAP, or
to grant or deny a sentence reduction for completion of the
program, is not reviewable by the district court. The BOP’s
substantive decisions to remove particular inmates from the RDAP
program are likewise not subject to judicial review.

11 Reeb, 636 F.3d at 1227. Although “federal courts lack jurisdiction to review the BOP’s
12 individualized RDAP determinations made pursuant to 18 U.S.C. § 3621,” the Ninth Circuit has
13 held that “judicial review remains available for allegations that BOP action is contrary to
14 established federal law, violates the United States Constitution, or exceeds its statutory
15 authority.” Reeb, 636 F.3d at 1228 (emphasis added); accord Rodriguez v. Copenhaver, 823 F.3d
16 1238, 1242 (9th Cir. 2016) (citing Close v. Thomas, 653 F.3d 970, 973–74 (9th Cir. 2011)).
17 Therefore, “a categorical challenge to the BOP’s interpretation of its own regulation . . . is not
18 foreclosed from review.” Abbott v. Fed. Bureau of Prisons, 771 F.3d 512, 514 (9th Cir. 2014)
19 (emphasis added).
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In the opposition to the motion to dismiss, Petitioner emphasizes that he is not

21 challenging the BOP’s individualized determination to deny Petitioner early release.
22 Accordingly, as Petitioner is only challenging the BOP’s categorical exclusion of 21 U.S.C.
23 § 846 offenders with firearms enhancements from early release consideration after completing
24 RDAP, Respondent’s motion to dismiss is denied.
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C. Merits Analysis

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Petitioner argues that the BOP had no reasonable basis to categorically exclude § 846

27 offenders with firearm enhancements from early release consideration and thus exceeded its
28 statutory authority under 18 U.S.C. § 3621(e) and violated 5 U.S.C. § 706(2)(A). Petitioner

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1 requests the Court to “invalidate [28 C.F.R.] § 550.55(b)(6) and bar the preclusive effects of
2 § 550.55(b)(5)(ii) and (iii) as applied to § 846 offenders.” (ECF No. 1 at 7).
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1. BOP’s Statutory Authority Under 18 U.S.C. § 3621(e)

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The Supreme Court has held that the BOP’s implementation of a 1997 regulation that

5 “categorically denie[d] early release to prisoners whose current offense is a felony attended by
6 ‘the carrying, possession, or use of a firearm’ . . . [wa]s a permissible exercise of the Bureau’s
7 discretion under 18 U.S.C. § 3621(e)(2)(B).” Lopez, 531 U.S. at 233 (quoting 28 C.F.R.
8 § 550.58(a)(1)(vi) (1998)). The Supreme Court framed the issue as follows:
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Beyond instructing that the Bureau has discretion to reduce the
period of imprisonment for a nonviolent offender who successfully
completes drug treatment, Congress has not identified any further
circumstance in which the Bureau either must grant the reduction,
or is forbidden to do so. In this familiar situation, where Congress
has enacted a law that does not answer “the precise question at
issue,” all we must decide is whether the Bureau, the agency
empowered to administer the early release program, has filled the
statutory gap “in a way that is reasonable in light of the
legislature’s revealed design.”

15 Lopez, 531 U.S. at 242 (emphasis added) (quoting NationsBank of N.C., N.A. v. Variable
16 Annuity Life Ins. Co., 513 U.S. 251, 257 (1995)).
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Lopez involved a petitioner convicted of possession with intent to distribute

18 methamphetamine, a nonviolent offense. However, Lopez’s sentence was enhanced by two
19 levels pursuant to USSG § 2D1.1(b)(1) upon a finding that Lopez possessed a firearm in
20 connection with the underlying offense. Lopez, 531 U.S. at 236. The Supreme Court held that the
21 BOP “may categorically exclude prisoners based on their preconviction conduct,” and that “[t]he
22 Bureau reasonably concluded that an inmate’s prior involvement with firearms, in connection
23 with the commission of a felony, suggests his readiness to resort to life-endangering violence and
24 therefore appropriately determines the early release decision.” Lopez, 531 U.S. at 244.
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Petitioner’s attempts to distinguish Lopez and to differentiate 21 U.S.C. § 846

26 convictions and 28 C.F.R. § 550.55(b)(6) from 21 U.S.C. § 841 convictions and 28 C.F.R.
27 § 550.55(b)(5)(ii)–(iii) are not persuasive. For § 846 offenses, a two-level firearm enhancement
28 pursuant to USSG § 2D1.1(b)(1) is proper even when the defendant did not personally use or

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1 possess a firearm so long as the use or possession of the firearm by a coconspirator “was
2 reasonably foreseeable and furthered jointly undertaken criminal activity.” United States v. Ortiz,
3 362 F.3d 1274, 1278 (9th Cir. 2004); United States v. Diaz-Lozano, 674 F. App’x 702, 706 (9th
4 Cir. 2017). Applying the analytical framework of Lopez, it is reasonable to conclude that “an
5 inmate’s prior involvement with firearms, in connection with the commission of a felony,”
6 Lopez, 531 U.S. at 244, encompasses the use or possession of the firearm by a coconspirator that
7 “was reasonably foreseeable and furthered jointly undertaken criminal activity,” Ortiz, 362 F.3d
8 at 1278, and that such involvement “suggests his readiness to resort to life-endangering violence
9 and therefore appropriately determines the early release decision,” Lopez, 531 U.S. at 244.
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Based on Lopez, the Court finds that the BOP did not exceed its statutory authority by

11 excluding 21 U.S.C. § 846 offenders with firearm enhancements from early release consideration
12 under 18 U.S.C. § 3621(e). Accordingly, Petitioner is not entitled to habeas relief on this ground.
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2. Administrative Procedure Act

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Section 706 of the APA provides in pertinent part that a “reviewing court shall hold

15 unlawful and set aside agency actions, findings, and conclusions found to be arbitrary,
16 capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
17 § 706(2)(A). “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a
18 court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State
19 Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “Agency action is presumed to be valid and
20 must be upheld if a reasonable basis exists for the agency decision.” Peck, 697 F.3d at 772
21 (citing Sacora v. Thomas, 628 F.3d 1059, 1068 (9th Cir. 2010)). “A reasonable basis exists
22 where the agency ‘considered the relevant factors and articulated a rational connection between
23 the facts found and the choices made.’” Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir.
24 2008) (quoting Ranchers Cattlemen Action Legal Fund v. U.S. Dep’t of Agric., 415 F.3d 1078,
25 1093 (9th Cir. 2005)).
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In Peck, the Ninth Circuit held that the BOP did not violate the APA in enacting the 2009

27 version of 28 C.F.R. § 550.55(b)(5)(ii). Peck, 697 F.3d at 772–74. The Ninth Circuit found the
28 following explanations to be sufficient to satisfy the APA:

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The Bureau clearly stated that, “in the correctional experience of
the Bureau, the offense conduct of both armed offenders and
certain recidivists suggests that they pose a particular risk to the
public.” 74 Fed. Reg. at 1895. The Bureau further explained that it
was exercising its discretion because “[t]here is a significant
potential for violence from criminals who carry, possess or use
firearms” and that “in committing such offenses, these inmates
displayed a readiness to endanger another's life.” Id.

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In enacting the 2016 version of 28 C.F.R. § 550.55(b)(5) without change, the BOP

8 provided the same explanation as when it addressed the “issue in the final rule published on
9 January 14, 2009 (74 FR 1892), in which [the BOP] stated the following”:
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Under 18 U.S.C. 3621(e), the Bureau has the discretion to
determine eligibility for early release consideration (See Lopez v.
Davis, 531 U.S. 230 (2001)). The Director of the Bureau exercises
discretion to deny early release eligibility to inmates who have a
felony conviction for the offenses listed in § 550.55(b)(5)(i)(iv) because commission of such offenses illustrates a readiness to
endanger the public. Denial of early release to all inmates
convicted of these offenses rationally reflects the view that, in
committing such offenses, these inmates displayed a readiness to
endanger another’s life.

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The Director of the Bureau, in his discretion, chooses to preclude
from early release consideration inmates convicted of offenses
involving carrying, possession or use of a firearm and offenses that
present a serious risk of physical force against person or property,
as described in § 550.55(b)(5)(ii) and (iii). Further, in the
correctional experience of the Bureau, the offense conduct of both
armed offenders and certain recidivists suggests that they pose a
particular risk to the public. There is a significant potential for
violence from criminals who carry, possess or use firearms.
As the Supreme Court noted in Lopez v. Davis, “denial of early
release to all inmates who possessed a firearm in connection with
their current offense rationally reflects the view that such inmates
displayed a readiness to endanger another’s life.” Id. at 240. The
Bureau adopts this reasoning. The Bureau recognizes that there is a
significant potential for violence from criminals who carry, possess
or use firearms while engaged in felonious activity. Thus, in the
interest of public safety, these inmates should not be released
months in advance of completing their sentences.

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It is important to note that these inmates are not precluded from
participating in the drug abuse treatment program. However, these
inmates are not eligible for early release consideration because the
specified elements of these offenses pose a significant threat of
dangerousness or violent behavior to the public. This threat
presents a potential safety risk to the public if inmates who have

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demonstrated such behavior are released to the community
prematurely. Also, early release would undermine the seriousness
of these offenses as reflected by the length of the sentence which
the court deemed appropriate to impose.

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With respect to § 550.55(b)(6), the BOP explained:
Also, in § 550.55(b), the Director exercises his discretion to
disallow particular categories of inmates from eligibility for early
release, including, in (6), those who were convicted of an attempt,
conspiracy, or other offense which involved an underlying offense
listed in paragraph (b)(4) and/or (b)(5) of § 550.55. We narrowed
the language of § 550.55(b)(6) to preclude only those inmates
whose prior conviction involved direct knowledge of the
underlying criminal activity and who either participated in or
directed the underlying criminal activity. This change tailors the
regulation to the congressional intent to exclude from early release
consideration only those inmates who have been convicted of a
violent offense. Furthermore, the changed language expands early
release benefits to more inmates.

13 81 Fed. Reg. at 24486. Implicit in the BOP’s reasoning regarding § 550.55(b)(6) is the
14 determination that inmates who were convicted of an attempt, conspiracy, or solicitation of
15 underlying criminal activity that involved the carrying, possession, or use of firearms “rationally
16 reflects the view that, in committing such offenses, these inmates displayed a readiness to
17 endanger another’s life.” 81 Fed. Reg. at 24487. “Although the Bureau could have proffered a
18 fuller explanation, the APA does not demand more.” Peck, 697 F.3d at 773. As “a reasonable
19 basis exists for the agency decision,” id. at 772, the BOP did not violate the APA in enacting 28
20 C.F.R. § 550.55(b)(6).
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3. Conclusion

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Based on the foregoing, the Court finds the BOP’s categorical exclusion of 21 U.S.C.

23 § 846 offenders with firearm enhancements from early release consideration after completing
24 RDAP does not exceed the BOP’s statutory authority under 18 U.S.C. § 3621 and does not
25 violate § 706(2)(A) of the Administrative Procedure Act. See also McQuown v. Ives, No. 3:1626 cv-01927-KI, 2017 WL 359181 (D. Or. Jan. 24, 2017) (rejecting similar challenge to BOP’s
27 exclusion of 21 U.S.C. § 846 offenders with firearms enhancements from early release).
28 Accordingly, Petitioner is not entitled to habeas relief.

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III.

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ORDER

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Based on the foregoing, the Court HEREBY ORDERS that:

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1. Respondent’s motion to dismiss (ECF No. 14) is DENIED;

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2. The petition for writ of habeas corpus is DENIED; and

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3. The Clerk of Court is DIRECTED to CLOSE the case.

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IT IS SO ORDERED.
Dated:

December 19, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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