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November 22, 2000


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.


A. Jurisdiction

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) provides:

[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 ...

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