The opinion of the court was delivered by: Chief Magistrate Judge Baxter
Petitioner, Duane Baxter, is a federal inmate currently incarcerated at the Federal Correctional Institution ("FCI") McKean. He is serving a 63-month sentence for Possession With Intent to Distribute Cocaine Base, in violation of 21 U.S.C. § 841(a)(1), which was imposed in January 2006. His projected release date is June 5, 2009, assuming he receives all good conduct time available.
Petitioner has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in which he contends that the Bureau of Prisons (the "Bureau" or the "BOP") has wrongfully denied him eligibility for a sentence reduction for his successful completion of a drug treatment program under 18 U.S.C. § 3621(e)(2)(B). He asserts that the regulation that the Bureau applied to him to deny him early release -- 28 C.F.R. § 550.58(a)(1)(vi)(B) (2000) -- is invalid because it was not promulgated in accordance with the Administrative Procedure Act ("APA"). Specifically, he claims that: (1) the Bureau promulgated the regulation in violation of the APA's notice-and-comment procedures, set forth at 5 U.S.C. § 553; and, (2) the Bureau's alleged failure to state a rationale for promulgating the regulation renders it arbitrary and capricious, in violation of 5 U.S.C. § 706(2)(A). (See Petition, Docket No. 1; Addendum to Petition, Docket No. 3; Reply, Docket No. 9). The Bureau has submitted its Response at Docket No. 7.
A. Relevant Statutory and Regulatory Background
18 U.S.C. § 3621 governs the imprisonment of persons convicted of federal crimes. In 1990, Congress amended the statute to provide that "[t]he Bureau shall . make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse." Pub.L. 101-647, § 2903, 104 Stat. 4913. Four years later, on September 13, 1994, Congress enacted the Violent Crime Control and Law Enforcement Act, Pub.L. 103-322, which amended the statute to provide incentives for inmate participation in Bureau substance abuse treatment programs. The incentive provision at issue is codified at 18 U.S.C. § 3621(e)(2)(B) and it reads:
Period of Custody.-- The 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. (Emphasis added).
On May 25, 1995, the Bureau published regulations, effective June 26, 1995, to implement the early release incentive set forth at 18 U.S.C. § 3621(e)(2)(B), including a new regulation at 28 C.F.R. § 550.58. 60 Fed.Reg. 27692-95 (May 25, 1995). Congress did not define 18 U.S.C. § 3621(e)(2)(B)'s term "nonviolent offense," and in 28 C.F.R. § 550.58 the Bureau defined that term as the converse of a "crime of violence" under 18 U.S.C. § 924(c)(3).*fn2 60 Fed.Reg. 27692 (May 25, 1995). 28 C.F.R. § 550.58 provided, in relevant part:
An inmate who completes a residential drug abuse treatment program during his or her current commitment may be eligible for early release by a period not to exceed 12 months, in accordance with paragraph (a) of this section, unless the inmate is an INS detainee, a pretrial inmate, a contractual boarder (for example, a D.C., State, or military inmate), or eligible for parole, or unless the inmate's current offense is determined to be a crime of violence as defined in 18 U.S.C. § 924(c)(3), or unless the inmate has a prior federal and/or state conviction for homicide, forcible rape, robbery, or aggravated assault. (Emphasis added).
In July 1995, in an effort to further define the term "crime of violence" (and hence 18 U.S.C. § 3621(e)(2)(B)'s term "nonviolent offense"), the Bureau issued Program Statement 5162.02, Definition of Term, "Crimes of Violence" ("PS 5162.02"). Therein, the Bureau explained that its "definition includes broad statutory language, as well as a framework for determining which specific criminal offenses fall within the statutory definition." PS 5162.02, § 1. In Sections 7 through 11 of PS 5162.02, the Bureau listed the specific criminal offenses that were determined to be crimes of violence. Section 7 explicitly excluded from the category of "nonviolent" offenders eligible for early release those prisoners convicted under 18 U.S.C. § 922(g) (felon-in-possession of a firearm). Section 9 instructed that drug trafficking offenses under 21 U.S.C. § 841 and § 846 would be considered a crime of violence if the sentencing court increased the base level of the sentence for possession of a dangerous weapon during commission of the offense. The Bureau explained it was making this categorical exclusion because "possession of a dangerous weapon during commission of a drug offense poses a substantial risk that force may be used against persons or property." PS 5162.02, § 9.
After the Bureau's regulatory and program statement scheme went into effect, inmates proceeded to challenge PS 5162.02 on the basis that the Bureau was erroneously excluding them from receiving 18 U.S.C. § 3621(e)(2)(B)'s early release benefit even though they had been convicted of offenses that had not been regarded by federal courts to be "crimes of violence" under 18 U.S.C. § 924(c). See Lopez v. Davis, 531 U.S. 230, 235 (2001); see also Roussos v. Menifee, 122 F.3d 159, 161 (3d Cir. 1997). A split developed among the United States courts of appeals on the question of whether PS 5162.02 was valid or whether the Bureau was bound by the case law interpreting the definition of "crime of violence" found in 18 U.S.C. § 924(c). A majority of the courts of appeals determined that PS 5162.02 was invalid. Downey v. Crabtree, 100 F.3d 662 (9th Cir. 1996); Roussos, 122 F.3d at 161-64; Martin v. Gerlinski, 133 F.3d 1076 (8th Cir. 1998); Fristoe v. Thompson, 144 F.3d 627 (10th Cir. 1998); Byrd v. Hasty, 142 F.3d 1395 (11th Cir. 1998). The Fourth and Fifth Circuits, however, upheld PS 5162.02. Pelissero v. Thompson, 170 F.3d 442 (4th Cir. 1999); Venegas v. Henman, 126 F.3d 760 (5th Cir. 1997). In Pelissero, the Fourth Circuit explained:
As the district court appropriately recognized, Congress entrusted the decision whether to grant inmates early release under 18 U.S.C. § 3621(e)(2)(B) "solely to the discretion and expertise of the BOP, with a cautious eye toward the public safety and welfare." [Pelissero v. Thompson, 955 F.Supp. 634, 636 (N.D.W.Va.1997)]. In exercising this discretion, the Bureau of Prisons must balance Congress's twin goals of providing an incentive for certain prisoners to undergo drug treatment while at the same time protecting the public from potentially violent criminals. In its effort to carry out these goals, the Bureau of Prisons determined that a defendant will be excluded from the program if he has been convicted of a "crime of violence" as defined in 18 U.S.C. § 924(c)(3).. to implement this definition, the Bureau adopted P.S. 5162.02 which lists specific offenses that will be considered violent. The list includes a conviction or sentence enhancement for possession of a firearm in connection with the commission of a drug offense.
While the Bureau of Prisons' definition of a crime of violence may not be consistent with court interpretations of 18 U.S.C. § 924(c)(3), it is, nevertheless, a permissible and reasonable interpretation of the statute from which the Bureau derived its authority. We agree with the Seventh Circuit's observation in Parsons:
Given the substantial risk of danger and the inherently violent nature of firearms, particularly firearms in the possession of a convicted felon, there is nothing unreasonable about the BOP's decision to classify a conviction for possession of a firearm by a felon as "a crime of violence in all cases" for purposes of determining an inmate's eligibility for early release. 170 F.3d at 447 (quoting Parsons v. Pitzer, 149 F.3d 734, 738 (7th Cir. 1998)).
Because of the split among the courts of appeals, the Bureau could not apply 28 C.F.R. § 550.58 (1995) and PS 5162.02 consistently in its institutions throughout the United States. To address this problem, the Bureau published a revised interim rule with the effective date of October 9, 1997 (the "1997 interim rule"), which amended 28 C.F.R. § 550.58 (1995) in a manner to "avoid[ ]" the legal problem identified by the majority of courts of appeals. 62 Fed.Reg. 53690 (Oct. 15, 1997) ("Because of differences in application of case law among the various Federal courts, a few crimes would not be clearly covered by the Bureau's definition [of the term 'crime of violence.']")
As with the previous regulatory and program statement scheme, the 1997 interim rule still categorically excluded inmates convicted of drug offense violations with sentence enhancements for possession of a weapon from receiving 18 U.S.C. § 3621(e)(2)(B)'s early release benefit.
Importantly, however, the 1997 interim rule did not order this exclusion by defining the statutory term "prisoner convicted of a nonviolent offense" under 18 U.S.C. § 3621(e)(2)(B) or 18 U.S.C. § 924(c)(3)'s cognate term "crimes of violence." 62 Fed.Reg. 53690 (Oct. 15, 1997); see also Lopez, 531 U.S. at 235. Instead, the 1997 interim rule relied upon "the discretion allotted to the Director of the Bureau of Prisons in granting a sentence reduction to exclude" such inmates. Id.; see also Lopez, 531 U.S. at 235. As the United States Supreme Court subsequently explained in Lopez:
Drug traffickers who possess firearms when they engage in crimes were no longer characterized as "violent" offenders within the meaning of the statute, but they were bracketed, for sentence reduction purposes, with persons currently incarcerated for "nonviolent offense[s]" who in the past committed crimes qualifying as violent. The preconviction conduct of both armed offenders and certain recidivists, in the Bureau's view,"suggest[s] that they pose a particular risk to the public." Brief for Respondents 30.
The 1997 interim rule amended 28 C.F.R. § 550.58 (1995), in ...