Sanchez v. Ledezma , 422 F. App'x 735 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 3, 2011
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DAVID SANCHEZ,
Appellant, No. 10-6144
(D.C. No. 5:10-CV-00442-M)
v. (W.D. of Okla.)
H.A. LEDEZMA, Warden,
Appellee.
ORDER AND JUDGMENT *
Before MURPHY, BRORBY, and TYMKOVICH, Circuit Judges. **
David Sanchez challenges a Bureau of Prisons (BOP) regulation that
categorically denies prisoners eligibility for early release where they possessed a
firearm in connection with the commission of a felony. Because prior decisions
of the Supreme Court and this court have held the regulation is not arbitrary and
capricious, Sanchez’s claim is without merit.
*
This order and judgment is not binding precedent except under the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.
**
The court’s April 21, 2011 Order granted Sanchez’s unopposed motion
to vacate oral argument and submit the case on the briefs. See Fed. R. App. P.
34(a); 10th Cir. R. 34.1(G).
Having jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the district
court’s decision to dismiss Sanchez’s habeas petition.
I. Background
Sanchez was arrested after law enforcement officers conducted a search of
a house he occupied with three others and discovered illegal drugs. The officers
also found a shotgun hidden below a trapdoor in the floor. Sanchez pleaded
guilty to possession of marijuana with intent to distribute within 1000 feet of a
school, in violation of 21 U.S.C. §§ 841(a)(1), (c)(1)(C), and 860. The sentencing
court imposed a two-level enhancement for possession of a dangerous weapon
under § 2D1.1(b)(1) of the United States Sentencing Guidelines. Accordingly,
Sanchez was sentenced to 71 months’ imprisonment. 1
While serving his term, Sanchez sought admission to the prison’s
Residential Drug Abuse Program (RDAP). By statute, the BOP may grant a
sentence reduction upon successful completion of the RDAP. 18 U.S.C.
§ 3621(e)(2)(B) (1994). But Sanchez was advised by an RDAP administrator
that, pursuant to BOP regulation, he would not be eligible for early release even if
he did complete the program.
1
At the time Sanchez initiated this action in district court, he was in the
custody of a federal prison in El Reno, Oklahoma. He has since been transferred
to a prison in Coleman, Florida. But we continue to have jurisdiction over this
appeal, as it is “well established that jurisdiction attaches on the initial filing for
habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the
accompanying custodial change.” Santillanes v. United States Parole Comm’n,
754 F.2d 887, 888 (10th Cir. 1985).
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The history of this regulation is summarized in our decision in Licon v.
Ledezma. No. 10-6166, 2011 WL 1137056, at *1–3 (10th Cir. Mar. 30, 2011).
For the purposes of this case, it is sufficient to note that 28 C.F.R.
§ 550.58(a)(1)(vi)(B) (2000) categorically excluded from early release inmates
convicted of a felony “[t]hat involved the carrying, possession, or use of a firearm
or other dangerous weapon or explosives.” The BOP amended the rule in 2009 to
include the following explanation:
[I]n the correctional experience of the Bureau, the offense conduct of
both armed offenders and certain recidivists suggests that they pose a
particular risk to the public. . . . The Bureau recognizes that there is a
significant potential for violence from criminals who carry, possess
or use firearms while engaged in felonious activity. Thus, in the
interest of public safety, these inmates should not be released months
in advance of completing their sentences.
74 Fed. Reg. 1892, 1895 (Jan. 14, 2009).
Sanchez brought this habeas petition in federal district court under 28
U.S.C. § 2241 challenging the regulation. In a lengthy and well-reasoned report,
the magistrate judge recommended Sanchez’s petition be denied, concluding the
BOP eligibility standards were valid. The district court adopted the magistrate
judge’s recommendation and denied the petition.
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II. Discussion
Sanchez contends the BOP regulation is arbitrary and capricious under
5 U.S.C. § 706(2)(A) of the Administrative Procedure Act (APA). 2 He further
claims the BOP violated his right to equal protection because similarly situated
prisoners in the Ninth Circuit are not subject to the regulation. We review the
district court’s denial of habeas corpus relief de novo and review its findings of
fact for clear error. United States v. Eccleston, 521 F.3d 1249, 1253 (10th Cir.
2008).
A. The Validity of the BOP Regulation
Sanchez first claims the BOP acted arbitrarily in promulgating the
regulation. He asserts the BOP failed to articulate an adequate rationale on the
record for excluding from early release offenders who only possessed, but did not
use or carry, a firearm in relation to the commission of a crime.
As an initial matter, the government contends Sanchez lacks standing to
bring this claim because he has not yet successfully completed the RDAP. But
“the injury required for standing need not be actualized. A party facing
prospective injury has standing to sue where the threatened injury is real,
immediate, and direct.” Davis v. Federal Election Comm’n, 554 U.S. 724, 734
2
After the parties’ briefs were submitted, we issued a decision resolving
this issue in Licon, 2011 WL 1137056, at *3–4. In supplemental briefing,
Sanchez concedes that Licon forecloses the appeal of the § 706(2)(A) claim, but
he preserves the issue for en banc review or review by the Supreme Court.
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(2008); see also Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298
(1979) (finding a plaintiff may challenge the prospective operation of a statute
that presents a realistic threat of direct injury). It is undisputed that Sanchez
sought entrance to and is currently participating in the RDAP, but that he is
ineligible for early release under the contested regulation. Given these
circumstances, we conclude Sanchez faces the requisite injury and has standing to
challenge the regulation. See Handley v. Chapman, 587 F.3d 273, 280 (5th Cir.
2009) (finding an inmate who had not participated in the RDAP had standing to
contest the regulation that made her ineligible for early release upon completion
of the program); Torres v. Chapman, 359 F. App’x 459, 461 (5th Cir. 2009)
(same).
We now turn to the substance of Sanchez’s claim. Under the APA, a
reviewing court must set aside final agency action that is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with the law.”
§ 706(2)(A). Under this deferential standard, we consider “whether the disputed
decision was based on consideration of the relevant factors and whether there has
been a clear error of judgment. ” Utah Envtl. Cong. v. Bosworth, 443 F.3d 732,
739 (10th Cir. 2006) . An agency rule is arbitrary and capricious if the agency
relied on factors which Congress had not intended it to consider,
entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise.
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Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007)
(quotation omitted).
In conducting this review, we are mindful that “an agency’s action must be
upheld, if at all, on the basis articulated by the agency itself.” Colo. Wild,
Heartwood v. United States Forest Service, 435 F.3d 1204, 1213 (10th Cir. 2006)
(quotation omitted). We will “uphold a decision of less than ideal clarity if the
agency’s path may reasonably be discerned.” Nat’l Ass’n of Home Builders, 551
U.S. at 658 (quotation omitted). But we cannot accept appellate counsel’s post-
hoc rationalizations for agency action. Colo. Wild, Heartwood, 435 F.3d at 1213.
Because it is not clear from the record whether Sanchez’s claim is governed
by the 2009 or 2000 regulation, he argues that each is arbitrary and capricious
under § 706(2)(A). But regardless of which regulation is relevant, we conclude
Sanchez’s claim lacks merit.
First, Sanchez contends the 2009 regulation is invalid because the sole
rationale the BOP offered on the record, public safety, is inadequate to justify the
exclusion of prisoners who only possessed, but did not carry or use, a dangerous
weapon in the commission of a non-violent felony. In support, he cites decisions
where we have held mere possession of a weapon is not considered a “crime of
violence” within the meaning of sentencing statutes. See, e.g., United States v.
Serafin, 562 F.3d 1105, 1114 (10th Cir. 2009). This claim is foreclosed by Lopez
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v. Davis, 531 U.S. 230 (2001). There, the Supreme Court upheld a nearly
identical 1997 version of the regulation based in part on its finding that the BOP’s
rationale of public safety was substantively reasonable. Id. at 244; see Licon,
2011 WL 1137056, at *6 (discussing the Lopez decision). We note further that
this decision did not only address the validity of the regulation as applied to
felons who carried or used firearms. The 1997 regulation, as described by Lopez,
denied early release to prisoners “whose current offense is a felony attended by
the carrying, possession, or use of a firearm.” 531 U.S. at 233 (emphasis added)
(quotation omitted). In finding the categorical exclusion of this group was
permissible, the Supreme Court stated: “The [BOP] reasonably concluded that an
inmate’s prior involvement with firearms, in connection with the commission of a
felony, suggests his readiness to resort to life-endangering violence and therefore
appropriately determines the early release decision.” Id. at 244. The language of
this decision clearly encompasses even simple possession of a firearm in
connection with a non-violent felony. We also observe that Lopez held
“involvement” with firearms in the commission of a felony suggests a “readiness
to resort to life-endangering violence,” id., not that the act of possession itself is
violent.
Sanchez’s argument that the 2000 regulation is arbitrary and capricious is
similarly unavailing. He asserts this version of the regulation is invalid because
the BOP failed to articulate a contemporaneous rationale on the record. We
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addressed this claim in a decision following Lopez. See Licon, 2011 WL
1137056, at *3–4. In that case, the prisoner argued that the public safety
rationale, though substantively reasonable, was procedurally inadequate as a post-
hoc justification offered by the BOP’s appellate counsel in Lopez. Id. We
disagreed, holding that this rationale was fairly discernable in the administrative
record for both the 2000 and 2009 regulations. Id. at *5–6; accord Handley, 587
F.3d at 281–82; Gardner v. Grandolsky, 585 F.3d 786, 792 (3d Cir. 2009).
Sanchez’s claim as to the 2000 regulation is foreclosed by this decision.
Because Lopez and Licon control the question of whether the BOP
regulation is arbitrary and capricious as applied to prisoners such as Sanchez, we
deny this claim.
B. The Equal Protection Claim
Sanchez also contends the regulation violates his right to equal protection.
Specifically, he notes that the Ninth Circuit—alone among those circuits so far to
consider the matter—found the 2000 regulation invalid on procedural grounds.
See Arrington v. Daniels, 516 F.3d 1106, 1113–14 (9th Cir. 2008). Thus,
prisoners in the Ninth Circuit who sought to enter RDAP before the enactment of
the 2009 regulation remain eligible for early release even if they, like Sanchez,
were convicted for crimes involving possession of a firearm. Again, it is not
clear that Sanchez’s claim is governed by the 2000 regulation.
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But even if it is, this claim lacks merit. Because Sanchez has not alleged
the deprivation of a fundamental right or membership in a suspect class, our
review of the BOP’s actions is highly deferential; to make his claim, Sanchez
must show that the difference in treatment was not reasonably related to
legitimate penological interests. Gwinn v. Awmiller, 354 F.3d 1211, 1228–29
(10th Cir. 2004). He has not carried this burden. See Handley, 587 F.3d at280–81 (finding Arrington does not create a “basis for equal protection relief for
prisoners outside the Ninth Circuit”). The Ninth Circuit’s assessment of the
regulation does not create an equal protection claim in circuits with a differing
interpretation. We therefore find Sanchez is not entitled to relief on his second
claim.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s denial of
Sanchez’s habeas petition.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
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