The opinion of the court was delivered by: Paul L. Friedman, District Judge.
Plaintiff challenges the refusal of the Federal Bureau of Prisons to
consider him eligible for the one year sentence reduction for completion
of a drug treatment program authorized by 18 U.S.C. § 3621. At his
sentencing for possession with intent to distribute heroin, plaintiff
received a two level enhancement for having been a felon in possession
of a firearm during a search of his home several days after the drug
offense. A Program Statement of the Bureau of Prisons denies benefit of
the sentence reduction to all individuals who received such a sentence
enhancement. Plaintiff has sued the Attorney General and the Director of
the Bureau of Prisons, arguing that the regulation under which he was
denied eligibility conflicts with the statute. The defendants have moved
to dismiss and plaintiff has cross-moved for summary judgment. On
consideration of the motions, the respective responses, the record of
this case, and the applicable law, the Court will deny defendants'
motion and grant summary judgment for plaintiff.
In 1997, plaintiff pleaded guilty to one count of possession with
intent to distribute heroin, 21 U.S.C. § 841 (a)(1). The remaining
three counts of the indictment were dismissed at sentencing; one of
those counts charged plaintiff with being a convicted felon in
possession of firearms, in violation of 18 U.S.C. § 922 (g)(1). At
sentencing, the court applied a two level sentence enhancement pursuant
to Section 2D1.1(b)(1) of the United States Sentencing Guidelines, for
an offense involving both drugs and possession of a firearm.
While serving his sentence of 60 months' imprisonment, plaintiff
entered and successfully completed the Bureau of Prisons' 500 hour
residential drug abuse program. He has been denied any reduction in
his sentence, however, based on the interpretation of the relevant
statute by the Bureau of Prisons.
The defendants first argue that because plaintiff essentially
challenges the length of his sentence, his actions must be considered
as sounding in habeas corpus. Under settled law, petitions for habeas
corpus must be, brought against a prisoner's custodian in the
jurisdiction in which the prisoner is incarcerated. See Chatman-Bey v.
Thornburgh, 864 F.2d 804, 811 (D.C.Cir. 1988). Defendants seek to have
the case dismissed because this Court does not have jurisdiction over
plaintiffs warden in Texas.
Plaintiff emphasizes that he is not challenging the duration of his
confinement. He argues that his classification as a violent offender
has had an immediate effect on the conditions of his confinement because
it makes him ineligible for various programs in addition to the
possibility of early release. He notes that the United States Court of
Appeals for the Seventh Circuit in Bush v. Pitzer, 133 F.3d 455 (7th
Cir. 1997), suggested that jurisdiction to consider similar claims could
be found under the Administrative Procedure Act.
The Court of Appeals for this Circuit has recently clarified the types
of claims that must be brought in habeas corpus. Only claims that
"`necessarily imply,' or automatically result in, a speedier release
from prison" are required to be brought under habeas corpus. Anyanwutaku
v. Moore, 151 F.3d 1053, 1056 (D.C.Cir. 1998). In that case, because the
plaintiffs success in challenging his parole eligibility date would not
necessarily result in a shorter sentence, the Court concluded that he
was not required to sue in habeas. Similarly, if plaintiff prevails in
the instant case, the amount of time he must serve before release will
not necessarily be reduced.
Rather, all that will happen as a result will be that the Director of
the Bureau of Prisons will exercise her discretion whether to grant him
a reduction in sentence on factors individual to plaintiff rather than
simply on the application of a two point sentence enhancement.
Therefore, plaintiff was not required to bring this action in habeas.
Defendants' motion to dismiss for improper venue or alternatively to
transfer this case to the Eastern District of Texas will be denied.
Several courts that recently have considered similar claims have
determined that jurisdiction to review the validity of the Bureau of
Prisons' Program Statement may be appropriate under the Administrative
Procedure Act. See, e.g., Fristoe v. Thompson, 144 F.3d 627 (10th Cir.
1998); Martin v. Gerlinski, 133 F.3d 1076 (8th Cir. 1998); Bush v.
Pitzer, supra; Myles v. United States, No. 97-1644 (July 15,
1998) (Judge Jackson); Miller v. United States, 964 F. Supp. 15 (D.D.C.
1997), vacated and dismissed as moot, 1998 WL 388806 (D.C.Cir. 1998)
(Table) (Judge Friedman). Judicial review of the Bureau's substantive
decision to grant or deny a sentence reduction to a particular prisoner
is precluded by 18 U.S.C. § 3625. In the Regulation and Program
Statement that plaintiff challenges, however, the Bureau of Prisons
purports to interpret the intention of Congress in providing that the
sentence of a prisoner "convicted of a nonviolent offense," who
completes a treatment program, "may be reduced . . . ." 18 U.S.C. § 3621
(e)(2)(B). Plaintiff argues that the Bureau has incorrectly interpreted
the statute when it categorically excludes a person convicted of a
nonviolent offense who received a two point sentence enhancement for
possession of a firearm. While some deference is accorded the Bureau of
Prisons in interpreting the statute that it is to administer, "[t]he
[federal] courts . . . have responsibility to resolve issues of
statutory construction." Downey v. Crabtree, 100 F.3d 662, 666 (9th Cir.
1996).*fn1 The Court therefore finds that it has jurisdiction to review
plaintiffs claims under the Administrative Procedure Act.*fn2
In 1990, Congress directed the Bureau of Prisons to provide
"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). Residential treatment while the prisoner is
in custody and appropriate aftercare are to be provided for all
"eligible" prisoners after fiscal year 1997, "with priority for such
treatment accorded based on an eligible prisoner's proximity to release
date." 18 U.S.C. § 3621 (e)(1)(C). In order to induce drug abusers
to address their problems while in custody, Section 3621(e)(2)
authorizes the Bureau to relax the conditions of custody for a prisoner
who has successfully completed such a residential drug treatment
program or, in some cases, to reduce the period of custody. Of
particular relevance to plaintiffs claim, Section 3621(e)(2)(B)
[t]he 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 ...