Hicks v. Federal Bureau of Prisons

603 F.Supp.2d 835

David Ray HICKS, Petitioner, v. FEDERAL BUREAU OF PRISONS and John Lamanna, Warden FCI Edgefield, Respondents.

Civil Action No. 0:08-1911-HFF-PJG.

United States District Court, D. South Carolina, Rock Hill Division.

March 16, 2009.

COPYRIGHT MATERIAL OMITTED

David Ray Hicks, FCI Edgefield, Edgefield, SC, pro se.

Beth Drake, U.S. Attorneys Office, Columbia, SC, for Respondents.

ORDER

HENRY F. FLOYD, District Judge.

This case was filed as a 28 U.S.C. § 2241 action. Petitioner is proceeding pro se. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting that Respondents' motion to dismiss the petition be granted. The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina.

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

The Magistrate Judge filed the Report on February 25, 2009, and the Clerk of Court entered Petitioner's objections to the Report on March 9, 2009.

In his petition and his objections, Petitioner's primary argument is that his conviction for possession of a firearm in connection with a drug-related crime under 18 U.S.C. § 924(c)(1)(A)(i) should not by itself render Petitioner ineligible for early release consideration pursuant to 18 U.S.C. § 3621(e). This statute allows the Bureau of Prisons (BOP) to reduce an inmate's incarceration time if he or she successfully completes a drug treatment program.¹ Although, according to Petitioner, he has successfully completed the treatment program, the BOP has refused to consider him for early release because he was convicted of violating 18 U.S.C. § 924(c), which the BOP categorically treats as a crime disqualifying a prisoner from early release.

Petitioner first argues that he should be eligible for early release consideration because he was convicted under § 924(c) for possession of a firearm only and not for the use or brandishing of a firearm during a drug trafficking crime. Petitioner admits that if he had "used" a firearm, then he would be ineligible for the sentence reduction under § 3621(e). In other words, Petitioner argues that possession of a firearm is not as dangerous an action as use of a firearm and should not be punished the same. Petitioner's argument misconstrues the BOP regulation² at issue. Specifically, that regulation excludes from early release consideration inmates whose current offense includes, among other things, "an offense that involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives." 28 C.F.R. § 550.55.³ Thus, under the clear language of the regulation, even though Petitioner may have been convicted of possession only, he is still categorically excluded from early release consideration.

Perhaps anticipating this outcome, Petitioner focuses most of his objections on the validity of the BOP regulation itself. He contends that § 924(c) was improperly categorized as a violent crime for purposes of the regulation. Although technically correct insofar as most courts have classified the offense, this defect was explained by the BOP in its December 2000 revisions to the regulation. The BOP noted, "even as the Bureau concedes that offenses related to this regulation are `non-violent' offenses, the implementing statute does not mandate that all `non-violent' offenders must receive an early release. The statute merely indicates that the sentence may be reduced by the Bureau of Prisons." Drug Abuse Treatment: Early Release Consideration, 65 Fed.Reg. 80745, 80747 (Dec. 22, 2000) (emphasis added).

More importantly, in Lopez v. Davis, 531 U.S. 230, 242, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001), the Supreme Court upheld the regulation at issue as a valid exercise of the BOP's discretion. The Court stated,

In this familiar situation, where Congress has enacted a law that does not answer "the precise question at issue," all we must decide is whether the Bureau, the agency empowered to administer the early release program, has filled the statutory gap "in a way that is reasonable in light of the legislature's revealed design." We think the agency's interpretation is reasonable both in taking account of preconviction conduct and in making categorical exclusions.

(citations omitted). Thus, in light of Lopez and the discretion conferred on the BOP by Congress, Petitioner's objection as to the inclusion of § 924(c) in the list of disqualifying offenses is without merit.

Next, Petitioner disagrees with the Magistrate Judge that Lopez actually upheld the regulation at issue in this case. In doing so, however, he relies heavily on statements made by the dissenting justices. Such statements are, by definition, the view of the minority and are not binding on this Court. The Lopez majority, interpreting the same regulation at issue in this case, clearly held that "the regulation is a permissible exercise of the Bureau's discretion under 18 U.S.C. § 3621(e)(2)(B)." Id. at 232, 121 S.Ct. 714. Thus, Petitioner's argument that the Magistrate Judge misconstrued Lopez is without merit.

However, Petitioner is correct that the Lopez Court failed to address one challenge hurdled at the BOP regulation— whether the regulation satisfied the notice and comment requirements of the Administrative Procedure Act (APA). Id. at 244 n. 6, 121 S.Ct. 714. The Ninth Circuit in Arrington v. Daniels, 516 F.3d 1106 (9th Cir.2008) did reach this issue and concluded that the regulation was improperly promulgated under the APA. Specifically, the Arrington Court found that the BOP "failed to set forth a rationale for its decision to categorically exclude prisoners convicted of offenses involving the carrying, possession, or use of firearms from eligibility for a sentence reduction under § 3621(e)." Id. at 1114. As a result, the Ninth Circuit found the regulation to be invalid. Id.

To begin, as the Magistrate Judge noted, the Ninth Circuit's holding is not binding on this Court. See e.g., Virginia Soc'y for Human Life, Inc. v. Fed. Election Comm'n, 263 F.3d 379, 393 (4th Cir.2001) (observing that "a federal court of appeals's decision is only binding within its circuit."). Further, the overwhelming majority of district courts that had addressed the issue had declined to follow Arrington. See Report at 4 (collecting cases). However, a recent unpublished decision from the Seventh Circuit did cite Arrington with approval. See Alnoubani v. Federal Bureau of Prisons, No. 08-1685, 2009 U.S.App. LEXIS 134 at *5-6 (7th Cir. Dec. 22, 2008) (discussing Arrington and remanding case to district court for failure to consider merits of APA claim). Thus, a closer examination of the Arrington decision is warranted.

The Arrington Court applied § 706(2)(A) of the APA, which provides that a court reviewing agency action shall "hold unlawful and set aside agency action, findings, and conclusions found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706. In applying this arbitrary and capricious standard, the Arrington court relied on two Ninth Circuit cases for the proposition that agency action is valid only if a reasonable basis exists for its decision, Kern County Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir.2006), and a reasonable basis exists where the agency "articulated a rational connection between facts found and the choices made." Ranchers Cattlemen Action Legal Fund v. U.S. Dep't of Agriculture, 415 F.3d 1078, 1093 (9th Cir.2005). Finding no such reasonable basis for the BOP's regulation regarding § 924(c) offenders, the Arrington Court held that the final rule was invalid under the APA. Arrington, 516 F.3d at 1114.

As noted in the Report, the Fourth Circuit applies a different standard regarding what type of explanation an agency must provide for its action. "While an `agency must examine the relevant data and articulate a satisfactory explanation for its action[,] including a rational connection between the facts found and the choice made,' courts will `uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.'" 1000 Friends of Maryland v. Browner, 265 F.3d 216, 238 (4th Cir.2001) (citation omitted).

Viewing the BOP's rule in its entirety, the Court agrees that the BOP could have more lucidly explained why it excluded inmates convicted under § 924(c) from the early release program. However, when viewed in light of its regulatory history involving several different versions within a ten-year period, each of which had been construed differently among the federal courts, and the fact that circuit splits continued until Lopez, the agency's path can be reasonably discerned. As stated in the rule, the BOP was attempting to create a regulation that would allow for "uniform" and "consistent" application to all federal prisoners. Drug Abuse Treatment: Early Release Consideration, 65 Fed.Reg. 80745, 80747 (Dec. 22, 2000). See also Minotti v. Whitehead, 584 F.Supp.2d 750, 765 (D.Md. 2008) ("Closer examination of Arrington reveals the fatal flaw in the Ninth Circuit's reasoning. The BOP provided an explanation for why it exercised its discretion to categorically exclude rather than include an entire class of inmates: it was concerned about uniformity. . . . However, that was not an explanation that the Ninth Circuit was willing to accept and, as such, the Ninth Circuit substituted its judgment...