United States District Court, D. Maryland
J. HAZEL UNITED STATES DISTRICT JUDGE.
above-captioned Petition for Writ of Habeas Corpus filed
pursuant to 28 U.S.C. § 2241, Petitioner asserts that
the Bureau of Prisons (BOP) improperly denied him eligibility
for early release under 18 U.S.C. § 3621(e) following
his completion of a residential substance abuse treatment
program. ECF No. 1 at 2, 6, 9-11.
acknowledges that the BOP came to this decision because
Petitioner's Presentence Investigation Report
''recommended a 2 level Special Offence
Characteristic Enhancement for possession of weapons which
was adopted by the Court at sentencing" and the BOP
concluded "that this enhancement makes him ineligible
for relief under current federal regulations and Bureau of
Prisons Program Statement 5331.02, and 18 U.S.C. Sec.
3621(e)." Id. at 9. Further, Petitioner
acknowledges that under 28 C.F.R. § 550.55,
regulation implementing the program established by 18 U.S.C.
§ 3621(e), inmates convicted of an "offense that
involved the carrying, possession, or use of a firearm or
other dangerous weapon or explosives (including any explosive
material or explosive device)" are categorically
excluded from eligibility for early release under this
program. § 550.55(b)(5)(ii); ECF No. 1 at 9. Petitioner
does not dispute that he was provided with an explanation of
the basis of denying his request for early release under 18
U.S.G. § 3621(e), nor does he dispute that his two-level
Sentencing Guidelines enhancement for possession of a firearm
in connection with his offense falls within the ambit of 28
C.F.R. § 550.55(b)(5)(ii).
Petitioner's argument for relief is grounded in his
contention that the BOP failed to provide a rationale for its
regulation (28 C.F.R. § 550.55). He contends that
The Bureau's failure to state a rational for its
categorical exclusion rule renders the regulation arbitrary
and capricious in violation of Section 706(2)(A) of the
[Administrative Procedure Act]. Because the [administrative]
record contains no rationale explaining the Bureau's
decision to categorially exclude prisoners with convictions
involving firearm(s) from eligibility for early release under
§ 3621(e), Petitioner has grounds for relief.
ECF No. 1 at 11. In support of his argument, Petitioner cites
to two Ninth Circuit cases from the 1990s, which analyzed
language from 18 U.S.C. § 924(c)(3). Id. at 10.
argument is without merit, for reasons articulated nearly a
decade ago in Coy v. Whitehead, No. DKC-09-0910,
2009 WL 2884763 (D. Md. Sept. 1, 2009), in which the Court
The Violent Crime Control and Law Enforcement Act of 1994
amended 18 U.S.C. § 3621(b) to require the U.S. Bureau
of Prisons ("BOP") to "make available
appropriate substance abuse treatment for each prisoner the
BOP determines has a treatable condition of substance
addiction or abuse." It added a section providing for
incentives for prisoners to participate in such a RDAP,
including the possibility of an early release. Subsection
3621(e)(2)(B) provides that:
The period a prisoner convicted of a nonviolent offense
remains in custody after successfully completing a [drug]
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.
In implementing this provision, the BOP initially adopted the
statutory definition of "crime of violence" found
under 18 U.S.C. § 924(c)(3). Subsection 3621(e)(2)(B)
was codified under 28 C.F.R. § 550.58. Section 550.58
specifies three prerequisites for early release eligibility:
the inmate must have been sentenced to a term of imprisonment
for a nonviolent offense; must have a substance abuse
problem; and must successfully complete a residential drug
abuse treatment program while incarcerated.
Revisions to § 550.58 omit any reference to §
924(c)(3). The regulation does not attempt to define a
non-violent offense within the meaning of §
3621(e)(2)(B). Instead, the regulation was revised
categorically to exclude certain inmates from early release.
Section 550.58 states that:
An inmate who was sentenced to a term of imprisonment
pursuant to the provisions of 18 U.S.C. Chapter 227,
Subchapter D for a nonviolent offense, and who is determined
to have a substance abuse problem, and successfully completes
a residential drug abuse treatment program during his or her
current commitment may be eligible, in accordance with
paragraph (a) of this section, for early release by a period
not to exceed 12 months.
(a) Additional early release criteria.
(1) As an exercise of the discretion vested in the Director
of the Federal Bureau of Prisons, the following categories of