Junne Kyoo Koh v. United States , 703 F. App'x 709 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 22, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JUNNE KYOO KOH,
Petitioner - Appellant,
v. No. 17-6160
(D.C. No. 5:16-CV-00932-M)
UNITED STATES OF AMERICA, (W.D. Okla.)
Respondent - Appellee.
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ORDER AND JUDGMENT*
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Before KELLY, MURPHY, and MATHESON, Circuit Judges.**
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Petitioner-Appellant Junne Kyoo Koh, a federal inmate appearing pro se,
appeals from the district court’s dismissal without prejudice of his petition for a writ
of habeas corpus, 28 U.S.C. § 2241. He also seeks to proceed in forma pauperis
(IFP) on appeal. We affirm the district court’s dismissal and deny IFP status.
Mr. Koh, a non-citizen, was convicted of two counts of unlawfully possessing
a firearm, 18 U.S.C. § 922(g), and one count of illegally reentering the United States
after deportation, 8 U.S.C. § 1326(a). Judgment at 1, United States v. Koh, No. 2:15-
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
cr-98 (W.D. Wash. Mar. 17, 2016), ECF No. 88. He was sentenced to 60 months’
imprisonment. Id. at 2.
Mr. Koh essentially claimed that his equal protection rights were violated
when the Bureau of Prisons (BOP), solely based on his status as a non-citizen, (1) did
not allow him placement at a “minimum security facility or facility near his family”;
(2) “subject[ed] him to a longer term of imprisonment because [it found that he was]
not eligible for ‘a one-year sentence reduction’ if he complete[d] [the] Residential
Drug Abuse Program (‘RDAP’) treatment”; and (3) denied him “transfer to a
community correctional facility such as a halfway house.” Koh v. Berkebile,
No. CIV-16-932-M, 2017 WL 2608955, at *2 (W.D. Okla. June 1, 2017), report and
recommendation adopted, No. CIV-16-932-M, 2017 WL 2608710 (W.D. Okla.
June 15, 2017). Upon referral, a magistrate judge recommended that the petition be
dismissed without prejudice. Id. at *5. The district court adopted the report and
recommendation. Koh, 2017 WL 2608710, at *1.
On appeal, Mr. Koh argues that as a non-citizen he should not be excluded
from obtaining a one-year sentence reduction upon completion of the RDAP
program. He argues that such exclusion violates equal protection principles. He also
takes issue with the magistrate judge’s conclusion that he would be ineligible for a
sentence reduction regardless of his citizenship given his firearms convictions. We
review the underlying legal conclusions of the district court de novo and any findings
of fact under the clearly erroneous standard. Leatherwood v. Allbaugh, 861 F.3d
1034, 1042 (10th Cir. 2017).
2
The magistrate judge determined that Mr. Koh lacked standing to challenge the
denial of early release to non-citizen inmates completing the substance abuse
program given the nature of his convictions. By its terms, early release only applies
to prisoners convicted of non-violent offenses. 18 U.S.C. § 3621(e)(2)(B) (2012).
By regulation, this does not include felonies involving the possession of a firearm.
28 C.F.R. § 550.55(b)(5)(ii) (2017). Although Mr. Koh argues that the regulation is
invalid, we have upheld the classification. Licon v. Ledezma, 638 F.3d 1303, 1309
(10th Cir. 2011). Because Mr. Koh has suffered no injury “fairly traceable to a BOP
policy,” he lacks standing and the district court’s dismissal of this claim without
prejudice was correct. Pinson v. Berkebile, 486 F. App’x 745, 747 (10th Cir. 2012).
We AFFIRM for substantially the same reasons as the district court. We
DENY IFP status.
Entered for the Court
Paul J Kelly, Jr.
Circuit Judge
3