United States District Court, D. Maryland
JUAN M. HERNANDEZ, #63060054 Petitioner
TIMOTHY STEWART, Warden Respondent
Xinis United States District Judge.
Hernandez is an inmate incarcerated at the Federal
Correctional Institution in Cumberland, Maryland
(“FCI-Cumberland”). In this pro se petition for a
writ of habeas filed pursuant to 28 U.S.C. § 2241,
Hernandez challenges the Federal Bureau of Prison's
(“BOP”) determination that he is ineligible for
early release under 18 U.S.C. § 3621(e) despite his
successful completion of the Residential Drug Abuse Treatment
Program (“RDAP”). ECF No. 1. As relief,
Hernandez asks to be given credit toward early release and to
be placed in a Residential Reentry Center (RRC) under the
Second Chance Act, 18 U.S.C. § 3624(c) for one year.
Id. at 7, 8. Respondent, Warden Timothy Stewart
(“Stewart”) moved to dismiss the complaint or
alternatively for summary judgment. Hernandez has failed to
respond, despite ample opportunity to do so. ECF No. 3. The
case is ready for disposition and the Court now rules
pursuant to Local Rule 105.6 because a hearing is
unnecessary. For reasons stated below, Respondent's
Motion for Summary Judgment IS GRANTED.
is serving a 135-month sentence for possession with intent to
distribute cocaine in violation of 21 U.S.C. § 841.
United States v. Hernandez, Criminal Case No.
1:10:CR00149-01 (PAC) (S.D.N.Y. 2011), PACER Docket No. 30
(reducing Hernandez's sentence from the originally
imposed term of 156 months' imprisonment to 130 months
pursuant to 18 U.S.C. § 3582(c)). The sentencing court
found that because Hernandez possessed at least two firearms
in connection with his drug offense, a two-level upward
adjustment was warranted under the United States Sentencing
Guidelines. Declaration of Wesley Zurevoc, paralegal,
Department of Justice, Designation and Computation Center
(“DSCC”), ECF No. 3-2 at ¶17.
Hernandez's projected release date is November 2, 2019.
Id. at ¶2.
August of 2016, DSCC legal staff determined that Hernandez
was ineligible for RDAP early release because he had received
the two-level adjustment for possessing a firearm in
connection with his underlying drug offense. Id.
¶¶ 15, 17, 18; see also Offense Review,
ECF No. 3-2 at 48-49 (indicating the offense involved
“carrying, possession, or use of a firearm or other
dangerous weapon” and “by its nature or conduct
presents a serious potential risk of physical force against
the person or property of another”). Hernandez disputes
the DSCC decision.
particularly, Hernandez claims that because his offense is
“non-violent, ” and the specific guideline
adjustment is triggered by “inherently
non-violent” possession, he was entitled to a sentence
reduction. Petition, ECF No. 1 at 4. Further, he avers the
early release policy is applied disparately by the
“district and teams who prepare early release
eligibility paperwork for Grand Prarie [sic] (DSCC). For
example, the sentence computation team in ‘Alpha
team'[sic] may apply policy different [sic] than Bravo
Team, etc. ” ECF No. 1, at 8. Notably, Hernandez does
not identify any specific incidents to support this claim.
judgment is proper when the moving party demonstrates, that
“no genuine dispute as to any material fact”
exists when construing all facts and all justifiable
inferences in the light most favorable to the nonmoving
party. Fed.R.Civ.P. 56(a), (c)(1)(A); see also Ricci v.
DeStefano, 557 U.S. 557, 585-86 (2009); Baldwin v.
City of Greensboro, 714 F.3d 828, 833 (4th Cir. 2013). A
mere “scintilla of evidence” suggesting a
material dispute is not enough to defeat a motion for summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986). Rather, the record evidence must
demonstrate that a reasonable trier of fact could find in
favor of the nonmoving party. Matsushita Elec Indus Co v.
Zenith Radio Corp, 475 U.S. 574, 587 (1986).
brings this action pursuant to 28 U.S.C. § 2241, the
federal habeas statute which allows a prisoner to file suit
against the BOP for “a violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3); Rose v. Hodges, 423 U.S. 19, 21
(1975). The pertinent federal statute in Hernandez' case,
18 U.S.C. § 3621(b), authorizes the BOP to implement
drug abuse treatment programs such as RDAP and permits
possible early release upon successful RDAP completion. 18
U.S.C. § 3621(e)(2)(B) (participant's prison term
“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.”) (emphasis added).
the statute does not guarantee eligible inmates early
release. See Lopez v. Davis, 531 U.S. 230, 241
(2001) (BOP has “the authority but not the duty ... to
reduce [a prisoner's] term of imprisonment”);
Pelissero v. Thompson, 170 F.3d 442, 444 (4th Cir.
1999); Zacher v. Tippy, 202 F.3d 1039, 1041 (8th
Cir. 2000). However, the BOP has promulgated criteria for
determining early release eligibility, see 28 C.F.R.
§550.55, et seq. (2008), and issued Program
Statement 5162.05(Categorization of Offenses) to implement
the statute. These criteria have been upheld as a valid
exercise of agency discretion under 18 U.S.C. §
3621(e)(2)(B). See Lopez, 531 U.S. at 40
(recognizing the BOP may delineate an inmate whose current
offense is a felony involving a firearm ineligible for early
release); Cunningham v. Scibana, 259 F.3d 303, 306
(4th Cir. 2011); Minotti v. Whitehead, 584 F.Supp.2d
750 (D. Md. 2008).
regulations preclude early release for inmates convicted of a
felony offense that: (i) has as an element, the actual,
attempted, or threatened use of physical force against the
person or property of another; (ii) involved the carrying,
possession, or use of a firearm or other dangerous weapon or
explosives (including any explosive material or explosive
device), (iii) by its nature or conduct, presents a serious
potential risk of physical force against the person or
property of another; or (iv) by its nature or conduct
involves sexual abuse offenses committed upon minors. 28
C.F.R. §550.55(b)(5). BOP Program Statement 5162.05
identifies specific offenses which render an inmate
ineligible for early release, including those drug offenses
that include two-level upward adjustment under the sentencing
guidelines for possession of a dangerous weapon during the
offense. See BOP Program Statement 5162.05(4)(b).
Pelissero, the United States Court of Appeals for
the Fourth Circuit held that the BOP could deny early release
to a successful RDAP participant because sentencing for his
underlying drug offense (conspiracy to distribute and possess
with intent to distribute cocaine) included a two-level
enhancement for firearm possession. 170 F.3d at 446.
The Fourth Circuit reasoned that this two-level adjustment
disqualifies Defendant as “non-violent” which is
a necessary precondition for early release. This is so
because “possessing a firearm adds an aspect of
violence to otherwise nonviolent conduct by posing a risk of
danger to others.” Id. at 447. Accordingly,
the Fourth Circuit affirmed the BOP's denial of early
release. See also Penalosa v Warden, FCI
Cumberland, 2017 WL 79941 at 2 (D. Md. Jan. 6, 2017)
(§ 3621 “vests the BOP with discretionary
authority to determine when an inmate's sentence may be
reduced.”). Hernandez's claim is nearly identical
to Pellisero in all material respects. Thus, summary
judgment in Stewart's favor is warranted.
Hernandez's conclusory allegations of disparate treatment
do not change the analysis. The Equal Protection Clause of
the United States Constitution, at base, protects citizens
from intentional unequal treatment by state actors. City
of Cleburne, Tex. v. Cleburne Living Center, 473 U.S.
432, 439 (1985). To sustain an equal protection challenge,
the Petitioner must demonstrate that “he has been
treated differently from others with whom he is similarly
situated.” Morrison v. Garraghty, 239 F.3d
648, 654 (4th Cir. 2001); see also Washington v.
Davis, 426 U.S. 229, 239-42 (1976); Veney v.
Wyche, 293 F.3d 726, 730 (4th Cir. 2002).
Petitioner's has not made this showing. For example,
Hernandez has not identified any inmates who have sustained