The opinion of the court was delivered by: Chief Magistrate Judge Susan Paradise Baxter
Petitioner, Todd Snow, is a federal inmate currently incarcerated at the Federal Correctional Institution at McKean in Bradford, Pennsylvania. In April 2005, he pleaded guilty to the following two crimes in the United States District Court for the Western District of New York: (1) a violation of 21 U.S.C. § 841(a)(1) (possession with intent to distribute five grams or more of cocaine base); and (2) a violation of 18 U.S.C. § 924(c)(1) (possession of a firearm in furtherance of a drug trafficking crime). He was sentenced to an aggregate term of 78-months imprisonment. Petitioner's projected release date is currently set at October 6, 2011, 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. He seeks an order from this Court directing the Bureau of Prisons ("Bureau") to find him eligible for a sentence reduction under 18 U.S.C. § 3621(e)(2)(B). [Document # 1]. In support of his request for relief, he makes one claim: that 28 C.F.R. § 550.58(a)(1)(vi)(B) is invalid because the Bureau failed to articulate an adequate rationale in the administrative record in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A). Because the Bureau did not apply that regulation to Petitioner, his petition is denied.
A. Relevant Statutory, Regulatory, and Policy Scheme
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 ("VCCLEA"), 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 reads as follows:
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).
Subsequent to the enactment of VCCLEA, the Bureau issued various regulations and program statements to implement it and to provide guidance to personnel in administering § 3621(e)(2)(B)'s early release benefit. There is a long history of litigation challenging certain regulations and program statements, see Lopez v. Davis, 531 U.S. 230, 235 (2001); see also Gatewood v. Outlaw, 560 F.3d 843 (8th Cir. 2009), which does not need to be discussed for the resolution of the instant petition. It suffices to say that at the time the Bureau determined that Petitioner was not eligible to receive § 3621(e)(2)(B)'s early release benefit, the following two relevant rules were in effect.
First, in Program Statement 5162.04, Categorization of Offenses ("PS 5162.04"),*fn2 the Bureau listed offenses that are crimes of violence in all cases. (PS 5162.04, ¶ 6). The Bureau explained that any inmate convicted of an offense categorized as a crime of violence therein was not eligible for an early release under § 3621(e)(2)(B) because that statute expressly limited eligibility to inmates convicted of nonviolent offenses. In PS 5162.04, a violation of 18 U.S.C. § 924(c)(1) is considered a crime of violence in all cases. PS 5162.04, ¶ 6. Thus, Petitioner is not eligible to receive the early release benefit. (See Request For Unit Team Determination (Instant Offense), attached as Ex. 2b to Supplemental Response, Docket No. 13). (See also Residential Drug Abuse Program Notice To Inmate, attached as Ex. 2a to Supplemental Response).
Second, in 28 C.F.R. § 550.58,*fn3 the Bureau also identified additional categories of inmates that the Bureau's Director had determined, as an exercise of the discretion afforded to the Bureau under the statute, to exclude from § 3621(e)(2)(B)'s early release benefit. At subparagraph (a)(1)(vi)(B) of the regulation, an inmate whose current offense was a felony was excluded from receiving the early release benefit if his offense involved the carrying, possession, or use of a firearm. 28 C.F.R. § 550.58 (a)(1)(vi)(B). Under this regulation, an inmate convicted of nonviolent offenses (such as felon-in-possession convictions under 18 U.S.C. § 922(g) and convictions for drug trafficking under 28 U.S.C. § 841) was precluded from receiving § 3621(e)(2)(B)'s early release benefit if the inmate had received an enhancement for weapons possession under the United States Sentencing Commission Guidelines. This regulation was not applied to Petitioner. (Request For Unit Team Determination (Instant Offense); see also Residential Drug Abuse Program Notice To Inmate).
On February 20, 2008, the United States Court of Appeals for the Ninth Circuit issued Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008), which held that 28 C.F.R. § 550.58(a)(1)(vi)(B) was invalid under the APA as "arbitrary and capricious" because the Bureau failed to state in the administrative record a rationale for promulgating the categorical exclusion contained in that regulation. Id. at 1112-14. The APA provides that a "reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
In April 2008, Petitioner commenced the instant proceeding by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn4 As relief, he seeks an order from this Court directing the Bureau to reduce his sentence under § 3621(e)(2)(B).*fn5 In support, Petitioner claims that this Court should follow the Ninth Circuit Court's decision in Arrington and declare that 28 C.F.R. § 550.58(a)(1)(vi)(B) is invalid.*fn6
When Petitioner filed his petition with this Court in April 2008, the Bureau had not yet issued a final decision declaring him ineligible for § 3621(e)(2)(B)'s early release benefit. On November 25, 2008, however, the Bureau did notify him that he was ineligible to receive § 3621(e)(2)(B)'s early release benefit because he had been convicted of a crime of violence (18 U.S.C. § 924(c)(1) (possession of a firearm in furtherance of a drug trafficking crime)). (See Request For Unit Team Determination (Instant Offense); see also Residential Drug Abuse Program Notice To Inmate). As set forth above, PS 5162.04 provides that a violation of 18 U.S.C. § 924(c)(1) is considered a crime of ...