Moon v. Thomas
Filing
15
OPINION AND ORDER. Respondent's Motion to Dismiss 17 is GRANTED. Petitioner's Petition for Writ of Habeas Corpus 1 is DENIED. IT IS SO ORDERED. Signed on 4/01/2011 by Judge Michael W. Mosman. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
LOUIS D. MOON,
CV. 10-1154-MO
Petitioner,
v.
OPINION AND ORDER
JEFFREY THOMAS, Warden,
Respondent.
STEPHEN R. SADY
Office of the Federal Public Defender
101 SW main Street, Suite 1700
Portland, OR 97204
Attorney for Petitioner
DWIGHT C. HOLTON
United States Attorney
RONALD K. SILVER
Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, OR 97204-2902
Attorneys for Respondent
1 - OPINION AND ORDER
Mosman, District Judge.
Petitioner, an inmate at the Federal Correctional Institution,
Sheridan, Oregon ("FCI Sheridan"), brings this habeas corpus action
pursuant to 28 U.S.C. § 2241.
He alleges the Bureau of Prisons'
("BOP") regulations that categorically disqualify (1) inmates with
a current felony conviction for an offense involving the carrying,
possession, or use of a firearm or other dangerous weapon or
explosives,
and
(2)
inmates
with
certain
prior
felony
or
misdemeanor convictions from the early release incentive associated
with
the
codified
Residential
at
28
C.F.R.
Drug
§§
Abuse
Treatment
550.55(b)(5)
and
Program
("RDAP"),
550.55(b)(4)(2009)
respectively, are procedurally invalid under § 706(2)(A) of the
APA.
Petitioner asks that the Court find the 2009 regulations
invalid and order the BOP to designate him eligible for the early
release incentive upon his successful completion of RDAP.
While
the Court finds 28 C.F.R. §§ 550.55(b)(5) and 550.55(b)(4)(2009) to
be valid under the APA, an associated internal agency guideline
used for eligibility determinations, Program Statement P5162.05,
sec. 3, is unlawful under Ninth Circuit law to the extent it
categorizes a § 922(g) conviction, Felon in Possession of Firearm,
as
a
disqualifying
ineligibility
crime
determination
of
violence.
stands
without
Because
the
Petitioner's
application
of
P5162.05, sec. 3, Respondent's Motion to Dismiss (#17) is granted,
and the Petition for Writ of Habeas Corpus (#1) is denied.
2 - OPINION AND ORDER
BACKGROUND
I.
Statutory Background.
In 18 U.S.C. §§ 3621-3625, Congress vested the BOP with broad
authority to manage the imprisonment of a convicted person, and
specified "[t]he Bureau shall make available appropriate substance
abuse treatment for each prisoner the Bureau determines has a
treatable condition of substance addiction or abuse."
18 U.S.C.
§ 3621(b). In § 3621(e), Congress articulated a specific statutory
mandate for residential substance abuse treatment programs for
eligible prisoners.
The program the BOP created to satisfy this
mandate is the Residential Drub Abuse Program ("RDAP").
In 1994, Congress enacted the Violent Crime Control Law
Enforcement Act of 1994 ("VCCLEA"), which amended 18 U.S.C. § 3621
to include a discretionary early release incentive for inmates
convicted of non-violent offenses who successfully completed RDAP.
18 U.S.C. § 3621(e)(2).1
The statute does not define "non-violent
offenses."
1
Section 3621(e)(2)specifies in relevant part:
(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 Bureau
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."
3 - OPINION AND ORDER
Beginning in 1995, exercising its broad discretion under the
statute, the BOP promulgated a series of implementing regulations
and internal agency guidelines for administering the early release
incentive under 3621(e)(2).
The regulations and guidelines have
excluded inmates with a current felony conviction for an offense
involving the carrying, possession, or use of a firearm or other
dangerous weapon or explosives, as well as inmates with certain
prior
felony
eligibility.
or
misdemeanor
convictions
from
See 28 C.F.R. §§ 550.55(b)(2009).
early
release
The substantive
and procedural validity of these categorical exclusions have been
challenged in court repeatedly.
The Ninth Circuit upheld the substantive validity of the BOP's
exclusion based on conviction for the carrying, possession, or use
of a firearm in Bowen v. Hood, 202 F.3d 1211 (2000) (upholding 28
C.F.R.
§
550.58(a)(1)(vi)(B)).2
categorical
exclusion
of
certain
The
circuit
inmates
from
court
early
held
the
release
eligibility was a proper exercise of the BOP's discretion under the
statute, and stated:
"we see nothing unreasonable in the Bureau's
making the common-sense decision that there is a significant
potential for violence from criminals who carry, possess or use
firearms while engaged in their felonious employment, even if they
wound up committing a nonviolent offense this time."
Id. at 1119.
The Supreme Court upheld the substantive validity of the BOP's
2
28 C.F.R. § 550.58(a)(1)(vi)(B)(2000) was re-codified as 28
C.F.R. § 550.55(b)(5)(ii)(2009).
4 - OPINION AND ORDER
categorical exclusion of inmates from early release eligibility in
Lopez
§
v.
Davis,
531
550.58(a)(1)(vi)(B)
U.S.
was
230
a
(2001).
proper
Finding
exercise
of
28
the
C.F.R.
Bureau's
discretion under the statute, the Court stated:
[T]he Bureau need not blind itself to pre-conviction
conduct that the agency reasonably views as jeopardizing
life and limb.
*****
[T]he statute's restriction of early release eligibility
to nonviolent offenders does not cut short the
considerations that may guide the Bureau. [T]he Bureau
may consider aspects of the conduct of conviction, even
though the conviction is a criterion of statutory
eligibility.
Id. at 243-244 (emphasis added).
reasonably
concluded
than
an
The Court also held the "Bureau
inmate's
prior
involvement
with
firearms, in connection with the commission of a felony, suggests
his readiness to resort to life-endangering violence and therefore
appropriately determines the early release decision."
Id.
In Lopez, the Supreme Court did not address the procedural
validity of the categorical exclusions under the APA.
Id. at 244
n.6.
the
The
Ninth
Circuit,
however,
has invalidated
BOP's
regulations implementing the early release incentive under both
§ 553 and § 706(2)(A) of the APA.
comment requirements.3
3
Section 553 specifies notice and
Section 706(2)(A) specifies a "reviewing
Under the APA, agencies issuing rules must: (1) publish
notice of the proposed rule-making in the Federal Register; (2)
provide a period of comment on the proposed rule and consider
comments submitted during the period before adopting the rule;
and (3) publish the adopted rule not less than thirty days before
5 - OPINION AND ORDER
court shall hold unlawful and set aside agency action, findings,
and conclusions found to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law."
II.
Ninth Circuit Litigation.
A.
1995 Rule - 28 C.F.R. § 550.58(a)(1995).
In promulgating § 550.58 and the accompanying internal agency
guidelines, the BOP interpreted the statutory term "convicted of
non-violent offenses" and defined which inmates had convictions for
"crimes of violence" that would make them ineligible for early
release.4
"Felon firearm possession" was categorized as a crime of
violence rendering inmates ineligible for early release.
In Davis
v. Crabtree, 109 F.3d 566, 568-70 (9th Cir. 1997), the Ninth
Circuit found the BOP's statutory interpretation of "nonviolent
offenses" contrary to circuit law and held the regulation invalid.
The Ninth Circuit stated: "the BOP may not interpret the term
“nonviolent offense” to exclude the offense of felon in possession
of a firearm.
We are bound by Downey [v. Crabtree, 100 F.3d 662
(9th Cir. 2006)(crime of violence does not encompass felon firearm
possession under Ninth Circuit law)(citing cases)]."
Davis, 109
F.3d at 668-70.
/ / /
its effective date.
4
5 U.S.C. § 553(b)-(d).
Program Statement P5162.02 specified convictions that were
considered crimes of violence.
6 - OPINION AND ORDER
B.
1997 Interim Rule.
Responding
to
a
Circuit
split
on
the
question
of
the
substantive validity of the 1995 regulations, the BOP promulgated
new interim rules.
Rather than rely on its interpretation of the
statutory language "convicted of non-violent offenses" and defining
"crimes of violence" as it had previously, the BOP relied on the
Director's discretion under the statute to categorically exclude
inmates
convicted
of
certain
offenses
from
early
release
eligibility, including those involving the possession of firearms.
28 C.F.R. § 550.58(a)(1)(vi)(B)(1997).
In Paulsen v. Daniels, 413
F.3d 999, 1005 (9th Cir. 2005), the Ninth Circuit invalidated the
1997 interim rule, finding the BOP violated the notice and comment
requirements of the APA because (1) the interim regulation was made
effective prior to its publication in the Federal Register; and (2)
although the BOP solicited comments, the comments were not taken
into account prior to the regulation being made effective.
C.
In
2000 Final Rule.
December
2000,
respecting
the
notice
and
comment
requirement under § 553 of the APA, the BOP promulgated a final
regulation that was identical to the 1997 interim rule.
In
Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008), the Ninth
Circuit invalidated 28 C.F.R. § 550.58(a)(1)(vi)(B)(2000) under
§ 706(2)(A) of the APA.
rationale
identified
by
The circuit court found the first
the
district
court
as
a
basis
for
categorical exclusion - the increased risk that offenders with
7 - OPINION AND ORDER
conviction involving firearms might pose to the public - was
"entirely absent from the administrative record."
F.3d at 1113.
Arrington, 516
The Ninth Circuit noted,
the Bureau articulated this rationale in its brief to the
Supreme Court in Lopez . . . and is precisely the type of
post-hoc rationalization . . . that the [court is
forbidden] to consider in conducting review under the
APA.
Because no public safety rationale is present in the
administrative record, the district court erred in
relying on this explanation as a basis for its conclusion
that the final rule withstands arbitrary and capricious
review.
Id. The Ninth Circuit also found the second rationale proffered by
the BOP - need for uniformity - did not justify a categorical
exclusion
of prisoners
with
non-violent
convictions
involving
firearms instead of a categorical inclusion of prisoners with nonviolent convictions involving firearms.
Id. at 1114.
The court
found the BOP had not explained why, in seeking uniformity, it
chose to exclude prisoners rather than include them.
Id.
In a separate challenge to the 2000 Final Rule, this time
contesting
the
BOP's
consideration
of
prior
convictions
in
eligibility determinations without regard to how long ago they
occurred, codified at 28 C.F.R. § 550.58(a)(1)(iv), the Ninth
Circuit again invalidated the rule under § 706(2)(A).5
Thomas, 579 F.3d 978, 985-87 (9th Cir. 2009).
5
Crickon v.
The court found:
28 C.F.R. § 550.58(a)(1)(iv)(2000) was re-codified as 28
C.F.R. § 550.55(b)(4)(iii)(2009).
8 - OPINION AND ORDER
Despite issuing three interim rules and receiving
comments relating to the use of prior convictions in
response to at least two of these three rules, the BOP
never identified, explained, or analyzed the factors it
considered in crafting the categorical exclusion [based
on prior convictions].
*****
[A]lthough the BOP provided a limited explanation for its
decision to include all prior convictions without
temporal restriction, see 65 Fed.Reg. at 80746, the
reasoning articulated by the BOP is cursory and nonresponsive to the comments.
*****
Because
the
BOP
failed
to
articulate
in
the
administrative record the rationale underlying its
decision to adopt a categorical exclusion of inmates with
specific prior convictions, we conclude that the BOP's
promulgation of the categorical exclusion in 28 C.F.R.
§ 550.58(a)(1)(iv) did not comply with the APA.
See
Arrington, 516 F.3d at 1114 (requiring articulation of
agency rationale).
Id.
As a result of the Ninth Circuit's decisions in Davis and
Arrington, the BOP promulgated new interim rules governing early
release eligibility.
In January 2009, the BOP promulgated a final
rule and again relied on the discretion of the Director under the
governing statute, as recognized in Lopez, to categorically exclude
inmates convicted of certain offenses.6
6
Petitioner challenges the
In one action, the 2009 Rule finalized three proposed
rules, issued in 2000, 2004, and 2006. 74 FR 1892-01, 2009 WL
76657 (January 14, 2009.) The 2009 rules are applicable to all
inmates applying to RDAP after March 16, 2009.
9 - OPINION AND ORDER
validity of 28 C.F.R. §§ 550.55(b)(5)and 550.55(b)(4) (2009) under
§ 706(2)(A) of the APA.7
III. Factual Background.
In February 2009, upon a plea of guilty, Petitioner was
convicted of felon in possession of firearms and ammunition in
violation of 18 U.S.C. § 922(g).
(#14, at 15; #9 Ex. B.)
He was
sentenced to 60 months imprisonment to be followed by three years
of supervised release. (#9, Ex. A.) Petitioner's projected goodtime credit release date is December 30, 2011.
(Id.)
Petitioner applied for RDAP in January 2010, and was admitted
to the program on February 18, 2010.
On February 22, 2010,
Petitioner was determined to be ineligible for early release under
18 U.S.C. § 3621(e), with the Offense Review form specifying:
"Pursuant to PS 5162.05, sec. 3a, as well as the regulations cited
above [28 C.F.R. §§ 550.55(b)(5)(ii) & (iii)], a conviction for 18
USC 922(g) will preclude early release eligibility."
(Id., Ex. D
at 1.) Petitioner was also determined to be ineligible pursuant to
28 C.F.R. § 550.55(b)[4] based on a prior conviction for Robbery in
1992.
(Id. at p 2.)
disqualifying.
(Id.)
Other priors were noted as being nonPetitioner challenges the validity of the
rules under which he was designated ineligible for early release,
arguing they are arbitrary and capricious.
/ / /
7
The related internal agency guidelines include Program
Statement P5331.02 and P5162.05 (effective March 16, 2009).
10 - OPINION AND ORDER
DISCUSSION
In Lopez v. Davis, the Supreme Court held that the BOP has
discretion under 18 U.S.C. § 3621 to promulgate regulations to
narrow the class of prisoners eligible for early release, and that
it was reasonable for the BOP to do so.
531 U.S. at 244; see also
Arrington v. Daniels, 516 F. 3d 1106, 1115 (9th Cir. 2008) (BOP has
discretion under 18 U.S.C. § 3621 to create categorical exclusions
citing Bowen v. Hood, 202 F.3d 1211 (9th Cir. 2000)); Crickon v.
Thomas, 579 F.3d 978, 981 (9th Cir. 2009)(same citing Jacks v.
Crabtree, 114 F.3d 983, 984-86 (9th Cir. 1997)).
Thus, the issue
in this proceeding is not whether the BOP has the authority under
the governing statute to promulgate such a categorical exclusions,
or whether the exclusions are consistent with the statute. Rather,
the
§§
issue
is
whether
550.55(b)(5)(ii)
the
and
§ 706(2)(A) of the APA.
promulgation
of
the
2009
exclusions
codified
550.55(b)(4)(iii)
are
at
28
invalid
C.F.R.
under
Petitioner argues that "[b]ecause the
rules
did
not
cure
the
procedural
infirmities identified in Crickon and Arrington, those rules are
invalid as arbitrary, capricious, an abuse of discretion, and
otherwise contrary to law under § 706(2)(A) of the APA."
(#14, at
2.)
The
government
argues:
(1)
the
court
does
not
have
jurisdiction to review the Petitioner's individualized eligibility
determination; (2) the determination was made pursuant to valid
11 - OPINION AND ORDER
regulations;
and
(3)
the
regulations
satisfy
the
intent
of
Congress, have been upheld as a proper exercise of the BOP's
discretion under that governing statute, and are procedurally
valid.
(#8, at 10-13.)
For the reasons set forth below the Court finds 28 C.F.R.
§§ 550.55(b)(5) and 550.55(b)(4)(2009) valid under § 706(2)(A) of
the APA, but finds the categorization of a § 922(g) conviction as
a disqualifying "crime of violence" in Program Statement P5162.05,
sec. 3a unlawful under Ninth Circuit law.I.
Jurisdiction
The Court has jurisdiction to review claims alleging BOP
action is contrary to established federal law, violates the U.S.
Constitution, or exceeds the statutory authority Congress vested in
the agency.
Staacke v. United States Secretary of Labor, 841 F.2d
278, 281 (9th Cir. 1988).
To obtain judicial review under the APA,
petitioners must challenge a final agency action. See 5 U.S.C.
§ 704; Or. Natural Desert Ass'n v. United States Forest Serv., 465
F.3d 977, 982 (9th Cir. 2006).
or a part of an agency rule."
Agency action "includes the whole
5 U.S.C. § 551 (13).
There is no
question the 2009 rules at issue here constitute final agency
action and can be challenged under the APA.
See generally Abbott
Laboratories v. Gardner, 387 U.S. 136, 150-51 (1967), overruled on
other grounds, Califano v. Sanders, 430 U.S. 99 (1977)(APA provides
for review of regulations as final agency action). Thus, the Court
has jurisdiction to review Petitioner's claim alleging the 2009
rules that disqualify inmates from early release eligibility based
12 - OPINION AND ORDER
on
firearm
possession
and
based
on
past
convictions
are
procedurally invalid under § 706 (2)(A) of the APA because the BOP
offered insufficient rationale to support them.8
II.
Judicial Review Under Section 706(2)(A) of the APA
Under § 706(2)(A) of the APA, a "reviewing court shall hold
unlawful and set aside agency action, findings, and conclusions
found to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law."
"The scope of review under
the 'arbitrary and capricious' standard is narrow and a court is
not to substitute its judgment for that of the agency." Motor
Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43 (1983); Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir.
2008) (scope of review standard is narrow and deferential); Kern
County Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006).
Agency action is presumed to be valid if a reasonable basis exists
for the agency decision.
Sacora v. Thomas, 628 F.3d 1059, 1068
(9th Cir. 2010) (citing Crickon v. Thomas, 579 F.3d 978, 982 (9th
Cir. 2009)).
The court, however, may not supply a basis for the
agency's action that the agency itself does not provide.
8
Mora-
The Court does not have jurisdiction to review Petitioner's
individualized eligibility determination. Reeb v. Thomas, 2011
WL 723106 (9th Cir. March 3, 2011). To the extent Petitioner
raises an Equal Protection claim in his pro se petition, that
claim must fail because he does not present facts demonstrating
he was treated differently from other similarly situated inmates.
Id.
13 - OPINION AND ORDER
Meraz v. Thomas, 601 F.3d 933, 941 (2010). In Arrington, the Ninth
Circuit specified:
[a] reasonable basis exists where the agency considered
the relevant factors and articulated a rational
connection between the facts found and the choices made.
Although we may uphold a decision of less than ideal
clarity if the agency's path may reasonably be discerned,
we may not infer an agency's reasoning from mere silence.
516 F.3d at 1112 (citations omitted) (internal quotation marks
omitted). "However, even when an agency explains its decision with
less than ideal clarity, a reviewing court will not upset the
decision on that account if the agency's path may reasonably be
discerned." Mora-Meraz, 601 F.3d at 941 (quoting Crickon, 579 F.3d
at 982.)
In Sacora, the Ninth Circuit found it was reasonable for
the BOP "to rely on its experience, even without having quantified
it in the form of a study."
628 F.3d at 1069 (citing State Farm,
463 U.S. at 43 ("Normally, an agency rule would be arbitrary and
capricious
if
the
agency
...
offered
an
explanation
for
its
decision that runs counter to the evidence before the agency, or is
so implausible that it could not be ascribed to a difference in
view or the product of agency expertise)(emphasis added))); see
also Ranchers Cattlemen Action Legal Fund United Stockgrowers of
America v. U.S.D.A., 415 F.3d 1078, 1093 (9th Cir. 2005).
The
court rejected the argument that BOP policies pertaining to inmate
placement
in
residential
re-entry
centers
were
arbitrary
and
capricious because they were promulgated without empirical support
14 - OPINION AND ORDER
and without a sufficiently articulated rationale.
Id. at 1068-69.
III. Analysis
A.
28 C.F.R. § 550.55(b)(5) (2009)
In challenging the rule excluding inmates with firearm-related
convictions
from
early
release,
Petitioner
contends
the
"BOP
provided no coherent rationale for the exclusion of statutorily
eligible prisoners[,]"
and that "the proffered explanations are
inadequate and not supported by any empirical evidence."
17.)
(#14, at
Petitioner argues the BOP's claims of public safety concerns
and that in its experience offenders who carry, possess, or use
firearms pose a particular risk to the public are insufficient to
support the regulation because the BOP cites to no studies or
reports.
(Id., at 18.)
Petitioner also contends the BOP's
reliance on Lopez is misplaced because the BOP's position in Lopez
was
not
supported
by
empirical
requires empirical evidence.
evidence,
(Id. at 19.)
suggesting
the
APA
Petitioner further
argues that Felon in Possession does not distinguish among felons
or the weapons in their possession and, because "a tax protester
caught with a hunting rifle simply does not pose the same risk of
violence as a murderer in possession of an automatic assault
weapon," the regulation is arbitrary and capricious. (Id. at 21.)
The Court finds Petitioner's arguments unpursuasive.
The comments and responses published in the promulgation of 28
C.F.R. § 550.55(b)(5)(2009) specify:
15 - OPINION AND ORDER
2004 Proposed Rule:
Early release eligibility of inmates convicted of an
offense involving a firearm. The second commenter also
recommended that § 550.55(b)(5)(ii) be altered so that
inmates convicted of an offense that involved the
carrying or possession (but not use) of a firearm or
other dangerous weapon or explosives would be eligible
for early release consideration. The commenter further
recommended that § 550.55(b)(5)(iii) be deleted, granting
eligibility for early release consideration to inmates
convicted of an offense that, by its nature or conduct,
presents a serious potential risk of physical force
against the person or property of another.
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 offense rationally reflects
the view that, in committing such offenses, these inmates
displayed a readiness to endanger another's life.
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.
16 - OPINION AND ORDER
It is important to note that these inmates are not
precluded from participating in [RDAP]. 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 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.
Fed. Reg. 74, 1892, 1895 (Jan. 14, 2009).
The BOP clearly
articulates its rationale for denying eligibility for early release
to those inmates with firearm offenses citing Lopez, in which the
Supreme Court recognized as reasonable the rationale that inmates
with convictions for firearm offenses had demonstrated a propensity
for violence.
The BOP also relies on its agency expertise and
experience with inmates, which the Court notes dates back to the
1930's.
See www.BOP.gov/about/history.jsp.
As the Ninth Circuit
stated in Sacora, "[i]t may have been preferable for the BOP to
support its conclusions with empirical research.
However, it is
reasonable for the BOP to rely on its experience, even without
having quantified it in the from of a study."
(rejecting
placement
argument
in
that
residential
BOP
policies
re-entry
628 F.3d at 1068-69
pertaining
centers
were
to
inmate
arbitrary
and
capricious because they were promulgated without empirical support
and
without
a
sufficiently
articulated
rationale).
As
to
Petitioner's contention that a failure to distinguish among felons
and the weapons in their possession renders the firearm possession
disqualification arbitrary and capricious, the Court disagrees.
17 - OPINION AND ORDER
When the Ninth Circuit invalidated the 2000 regulations, the
BOP's failure to articulate its rationale in the administrative
record was central to the court's decision. Arrington, 516 F.3d at
1113.
The court was clear it did not consider the rationale
proffered in briefs to the Supreme Court in Lopez because it deemed
that to constitute post-hoc rationalization not available for its
consideration in reviewing the procedural validity of the rule
under the APA.
Id.
The court, however, acknowledged rational
explanations for the ineligibility of inmates with firearm offenses
were recognized by the Supreme Court in Lopez and by the Ninth
Circuit in Bowen. Id. at 1116.
In promulgating the 2009 regulations, the BOP articulated its
rationale for excluding inmates with firearm offenses from early
release eligibility in the administrative record, and responded to
the comments submitted on the issue. While Petitioner contends the
rationale
proffered
is
insufficient,
a
court's
review
under
§ 706(2)(A) is narrow and deferential, agency action is presumed to
be
valid
if
a
reasonable
basis
for
the
agency
decision
is
discernable from the administrative record, and a court must not
substitute its judgement for that of the agency.
This Court finds
a reasonable basis for the BOP's action was published in the
administrative record and concludes 28 C.F.R. § 550.55(b)(5) (2009)
is not arbitrary, capricious, an abuse of discretion or otherwise
not in
accordance
with
§ 706(2)(A) of the APA.
18 - OPINION AND ORDER
law,
and is
procedurally
valid
under
The Court notes, however, Program Statement P5162.05, sec. 3,
the BOP's internal agency guideline associated with the 2009
regulation is invalid under Ninth Circuit law to the extent it
categorizes a § 922(g) conviction (felon in possession) as a crime
of violence in all cases.
Davis v. Crabtree, 109 F.3d 566, 569
(9th Cir. 1997) (for the purposes of § 3621(e)(2)(B), felon in
possession of a firearm is a nonviolent offense).
Accordingly, in
the Ninth Circuit, an eligibility determination for an inmate
convicted of violating § 922(g) which rests solely on P5162.05,
sec.3 is unlawful.9 Petitioner's inelgibility, however, also rests
on the valid governing regulation, and is thus lawful.
B.
28 C.F.R. § 550.55(b)(4)(2009)
In challenging the rule excluding inmates with certain prior
convictions from early release, Petitioner contends the explanation
the BOP offered for relying on the Uniform Crime Reporting Program
("UCR") is incorrect and that the BOP has again failed to support
its decision with empirical evidence. (#14, at 23-24.) Petitioner
asserts, "the BOP claims that the UCR Part I offenses were chosen
'due
to
their
inherently
violent
nature
dangerousness to the public.'"
(Id. at 25.)
"in
'the
promulgating
this
9
rule,
BOP
and
particular
He further contends
offered
absolutely
no
Eligibility determinations under section 4 of program
statement P5162.05 are not based on the designation of offenses
as crimes of violence, but instead are based on offenses that in
the Director's discretion preclude inmates from early release,
including felon in possession of a firearm.
19 - OPINION AND ORDER
rationale for its decision to use the inmate's criminal history as
a surrogate for early release ineligibility[,]'" (id. at 26,
quoting Crickon), and
"when an
agency
fails
to
consider
the
relevant factors and articulate a rational connection between the
facts
§
and
choice
706(2)(A)."
made,
(Id.)
the
rule
Petitioner
is
invalid
argues
conviction should be taken into account.
the
under
age
5
of
U.S.C.
a
past
(Id.)
In promulgating 28 C.F.R. § 550.55(b)(4)(i-vii)(2009), the BOP
specified:
Title 18 U.S.C.3621(e) provides the Director of the [BOP]
the discretion to grant an early release of up to one
year upon the successful completion of a residential drug
abuse
treatment
program.
The
regulation
[550.55(b)(4)(i-vii)] provides than an inmate who has a
prior misdemeanor or felony conviction for homicide,
forcible rape, robbery, aggravated assault, arson,
kidnaping, or child sexual abuse will not be eligible for
early release.
In exercising the Director's statutory discretion, we
considered the crimes of homicide, forcible rape,
robbery, aggravated assault, arson, and kidnaping, as
identified in the FBI's [UCR], which is a collective
effort of city, county, state, tribal, and federal law
enforcement agencies to present a nationwide view on
crime. The definitions of these terms were developed for
the National Incident-Based Reporting System and are
identified in the UCR due to their inherently violent
nature and particular dangerousness to the public.
The Director of the Bureau exercises discretion to deny
early release eligibility to inmates who have a prior
felony or misdemeanor conviction for these offenses
because commission of such offenses rationally reflects
the view that such inmates displayed readiness to
endanger the public.
74 Fed.Reg. 1892-01, *1894, 2009 WL 76657 (emphasis added).
20 - OPINION AND ORDER
The
administrative
record
shows
the
BOP
considered
four
offenses the UCR identifies as "violent crime," as well as arson,
kidnapping,
and
child
sex-abuse.
http://www.fbi.gov/about-
us/cjis/ucr/crime-in-the-us/2009/crime2009
("violent
crime
is
composed of four offenses: murder and non-negligent manslaughter,
forcible rape, robbery, and aggravated assault. Violent crimes are
defined in the UCR Program as those offenses which involve force or
threat of force.")
The administrative record also shows there is
no basis for Petitioner's assertion that the BOP incorrectly read
the UCR and that its reasoning is undermined by the UCR committee's
definition of UCR offenses.
The UCR defines various offenses to assist law enforcement
agencies throughout the nation achieve a level of consistency in
crime reporting.
Uniform Crime Reporting Handbook, 2004 at 2,
available
www.fbi.gov/about-us/cjis/ucr/additional-ucr-
at
publications/ucr_handbook.pdf/view.
While
the
UCR's
primary
purpose is to assist in achieving some measure of consistency in
crime reporting, nothing in the APA precludes the use of materials
developed for one purpose from being used by an agency for another
if the agency finds the material relevant.
The Court finds the
BOP's reliance on the UCR to identify prior offenses that will
disqualify inmates from early release eligibility is not arbitrary
given that four of the disqualifying offenses are specifically
categorized in the UCR as violent crime.
And it is reasonable for
the BOP to conclude the past commission of a violent offense, no
21 - OPINION AND ORDER
matter how long ago, "rationally reflects the view that such
inmates displayed a readiness to endanger the public." 74 Fed.Reg.
at 1894.
Moreover, it is consistent with Congress's intent to
restrict early release eligibility to non-violent offenders for the
BOP to deny eligibility based on prior convictions designated as
violent offenses and encourage program participation by offering
other incentives.
Because
the
See § 550.54 (2009); 74 Fed.Reg. at 1893.
scope
of
review
under
the
"arbitrary
and
capricious" standard is narrow; because empirical evidence is not
required for agency action to be valid under § 706(2)(A); because
an agency may rely on its expertise in taking action; because the
basis for the BOP's decision is “reasonably discerned,” from the
administrative record, and because a court is not to substitute its
judgment
for
that
of
the
agency,
the
Court
finds
§ 550.55(b)(4)(2009) valid under § 706(2)(A) of the APA.10
/ / /
/ / /
/ / /
10
Even if the Court were to find § 550.55(b)(4) invalid
because consideration of past convictions is not limited to a
given time period, Petitioner remains ineligible for early
release under § 550.55(b)(5).
22 - OPINION AND ORDER
CONCLUSION
Based on the foregoing, Respondent's Motion to Dismiss (#17)
is GRANTED.
Petitioner's Petition for Writ of Habeas Corpus (#1)
is DENIED.
IT IS SO ORDERED.
DATED this
1st
day of April, 2011.
/s/ Michael W. Mosman
Michael W. Mosman
United States District Judge
23 - OPINION AND ORDER
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