United States District Court, District of Columbia
November 22, 2000
RICK L. LANDRY, PLAINTIFF,
KATHLEEN M. HAWK-SAWYER, ET AL., DEFENDANTS.
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
B. The Merits
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 year from the term the
prisoner must otherwise serve.
18 U.S.C. § 3621 (e)(2)(B) (emphasis added).
The first regulation promulgated by the Bureau of Prisons to implement
this statute defined the term "nonviolent offense" as being the opposite
of "crime of violence" and thus excluded from the sentence reduction
program any inmate whose "current offense [was] determined to be a crime
of violence as defined in 18 U.S.C. § 924 (c)(3)," that is, any
inmate convicted of a felony which:
(A) has as an element the use, attempted use, or
threatened use of physical force against the person
or property of another, or
(B) that by its nature, involves a substantial risk
that physical force against the person or property
of another may be used in the course of committing
This regulation defined drug offenses as "crimes of violence" if the
sentence imposed included a two-level enhancement under the Sentencing
Guidelines for possession of a dangerous weapon.
An overwhelming majority of the circuits that have addressed the
question have held that this definition was not a valid interpretation
of Section 3621(e) because the statute refers to the offense of
conviction under the relevant statute, not to sentencing enhancements
under the Guidelines. See Byrd v. Hasty, 142 F.3d 1395, 1397 (11th Cir.
1998) (collecting cases); Fristoe v. Thompson, 144 F.3d 627, 631 (10th
Cir. 1998) ("offense" as used in the statute does not include sentencing
enhancements; reliance on enhancements conflicts with language of
statute); Martin v. Gerlinski, 133 F.3d 1076, 1079-80 (8th Cir. 1998)
(Bureau exceeded statutory authority by categorically considering
sentencing factors other than offense of conviction); Fuller v. Moore,
133 F.3d 914 (4th Cir. 1997) (Table) (opinion at 1997 WL 791681); Roussos
v. Menifee, 122 F.3d 159, 162 (3d Cir. 1997) (unambiguous statutory
language speaks only in terms of conviction, not sentencing enhancement);
Downey v. Crabtree, 100 F.3d 662, 666 (9th Cir. 1996); contra Venegas v.
Henman, 126 F.3d 760, 761-62 (5th Cir. 1997), cert. denied, 523 U.S. 1108,
118 S.Ct. 1679, 140 L.Ed.2d 817 (1998). Several judges in this District
also have concluded that the defendants' interpretation was wrong.*fn3
E.g., Lerma v. United States, No. 97-2586, appeal vacated and case
dismissed as moot, No. 98-5515 (November 2, 1998) (Judge Hogan); Perez
v. Bureau of Prisons, No. 97-0380 (January 30, 1998) (Judge Urbina);
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
Thereafter, the Bureau revised its regulation and program statement to
delete the references to Section 924(c)(3). As now written, the
relevant regulation excludes from the sentence reduction program "[a]s
an exercise of the discretion vested in the Director of the Federal
Bureau of Prisons" any inmate convicted of a felony "[t]hat involved the
carrying, possession, or use of a firearm or other dangerous weapon . . . ."
28 C.F.R. § 550.58 (emphasis added.) Program Statement 5162.04,
issued to assist in interpretation
of this regulation, specifically states that a person convicted of a
drug offense under 21 U.S.C. § 841 who received a two point
sentencing enhancement for possession of a weapon is not eligible for
early release "at the director's discretion." These inmates, including
plaintiff, remain ineligible for early release because they are
considered to have been convicted of a felony "that involved . . .
possession . . . of a firearm."
The courts that have considered this new regulation differ as to
whether it is a valid exercise of administrative authority. The majority
of courts have concluded that this regulation is simply a wolf in
sheep's clothing, that is, that the Bureau of Prisons has invoked a
blanket exercise of discretion in an attempt to evade the decisions
holding that eligibility for early release must be based on "the offense
of conviction" without regard to sentencing enhancements. See, e.g.,
Ward v. Booker, 202 F.3d 1249 (10th Cir. 2000), petition for cert. filed,
69 U.S.L.W. 3023 (U.S. July 3, 2000) (No. 00-18);*fn5 Samples v.
Scibana, 74 F. Supp.2d 702 (E.D.Mich. 1999); Rodriguez v. Herrera,
72 F. Supp.2d 1229 (D.Colo. 1999); Todd v. Scibana, 70 F. Supp.2d 779
(E.D.Mich. 1999); Kilpatrick v. Houston, 36 F. Supp.2d 1328 (N.D.Fla.),
aff'd, 197 F.3d 1134 (11th Cir. 1999), rehearing & rehearing en banc
denied, 211 F.3d 596 (11th Cir. 2000), petition for cert. filed,
69 U.S.L.W. 3001 (U.S. June 14, 2000) (No. 99-2008); Tillmon v. Hemingway,
2000 WL 1661392 (E.D.Mich. 2000); contra Bellis v. Davis, 186 F.3d 1092
(8th Cir. 1999), cert. granted sub nom Lopez v. Davis, ___ U.S. ___,
120 S.Ct. 1717, 146 L.Ed.2d 640 (2000).*fn6 The purpose of the current
regulation is candidly admitted by defendants: to "find that certain
types of offenders are ineligible for early release due to their
commission of a violent offense." Memorandum in Support of Defendants'
Motion to Dismiss at 20 (emphasis added). Yet the cases that invalidated
the previous incarnation of the regulation held that the focus must be
on the offense of conviction, without regard to guidelines enhancements.
The statute plainly authorizes reduction of the period of custody when a
"prisoner convicted of a nonviolent offense" successfully completes the
treatment program. 18 U.S.C. § 3621 (e)(2)(B) (emphasis added). See,
e.g., Fristoe v. Thompson, 144 F.3d at 631.
Significantly, the Supreme Court heard argument on this issue on
October 30, 2000, in Lopez v. Davis. Because the Supreme Court's opinion
in Lopez will probably be conclusive, an extended discussion is not
necessary. Suffice it to say that this Court is persuaded by the
reasoning of the courts that have held the current regulation invalid
because it adds an eligibility requirement not intended by Congress. The
discretion vested in the Bureau of Prisons to grant or refuse early
release is more reasonably to be exercised on an individual basis than
by a blanket exclusion of individuals based on sentencing factors or
other aspects of pre-conviction conduct. Accordingly, the Court will
deny defendants' motion to dismiss and grant plaintiffs motion for
summary judgment. The Bureau of Prisons shall consider plaintiff for
early release consistent with this Opinion.
An appropriate order accompanies this Memorandum Opinion.
For the reasons stated in the accompanying Memorandum Opinion, it is
by the Court this 22nd day of November, 2000,
ORDERED that defendants' motion to dismiss [Dkt. # 13-1] is DENIED. It
FURTHER ORDERED that plaintiffs motion for summary judgment [Dkt. #
16-1] is GRANTED. The case is remanded to the Federal Bureau of Prisons
for consideration consistent with the Memorandum Opinion. Plaintiff
shall recover the cost of his filing fee, which has been paid in full.
This is a final appealable order. Fed.R.Civ.P. 4(a).