Todd v. Fed Bur of Pris ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50309
ELVIN BRAXTON TODD,
Petitioner-Appellant,
versus
FEDERAL BUREAU OF PRISONS; KATHLEEN HAWK SAWYER, Director, Federal
Bureau of Prisons; JOHN ASHCROFT, United States Attorney General;
TROY WILLIAMSON, Warden, Federal Correctional Institution La Tuna,
Respondents-Appellees.
Appeal from the United States District Court
For the Western District of Texas
(EP-00-CV-125-H)
January 11, 2002
Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit
Judges.
PER CURIAM:*
Appellant Elvin Braxton Todd appeals the denial of his
petition for a writ of habeas corpus challenging the refusal of the
Bureau of Prisons to file a motion to reduce his sentence. We
affirm.
I
Todd was convicted in Mexico of rape and possession of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
marijuana, and subsequently transferred to the United States
pursuant to the Treaty on the Execution of Penal Sentences between
the United States and Mexico. Todd was sentenced in Mexico on
February 12, 1993, and received a 19-year sentence on the rape
conviction and a seven-year sentence for possession. He was
transferred to the United States on December 5, 1995, after
suffering severe abuse in Mexican prison. On May 29, 1996, the
United States Parole Commission determined that Todd’s foreign
offenses were akin to knowingly engaging in a sexual act with
another person under 12 years of age, in violation of 18 U.S.C. §
2241(c), and simple possession of a controlled substance, in
violation of 21 U.S.C. § 844(a). The Commission then determined the
guideline range to be 168-210 months of imprisonment, followed by
three to five years of supervised release.
The Commission ordered Todd to serve a 156-month sentence,
followed by five years of supervised release. The Commission noted
that its determination represented a significant downward departure
from the guideline range, and stated that this reduction was based
upon Todd’s age, health, and the abuse he suffered in Mexican
prison. Todd is scheduled for release no later than September 23,
2005.
Todd filed a request for “compassionate release” pursuant to
18 U.S.C. § 3582(c)(1)(A), requesting that the Bureau of Prisons
move to reduce his sentence to time served due to Todd’s advanced
age, poor health, and the torture and rape he experienced while
2
imprisoned in Mexico. His request was denied by the warden, who
noted that the exigent circumstances cited by Todd were taken into
consideration by the Commission when it determined the length of
his sentence. Todd appealed to the Regional Director of the Board
of Prisons, who noted that a recommendation for compassionate
release requires extraordinary circumstances that could not have
been reasonably foreseen at the time of sentencing and concluded
that the circumstances of Todd’s case do not meet the criteria for
favorable consideration of a compassionate release recommendation
under 18 U.S.C. 3582(c)(1)(a). Todd then appealed to the
Administrator of National Inmate Appeals, who also denied his
request, finding that the warden and Regional Director correctly
denied relief in conformance with Bureau policy and noting that the
Bureau of Prisons has chosen to restrict the application of 18
U.S.C. 3582(c)(1)(a) to inmates suffering from a serious medical
condition that is generally terminal, with a determinate life
expectancy.
Todd then filed a pro se 28 U.S.C. § 2241 petition, arguing
that the Bureau of Prisons’ decision not to file a motion under 18
U.S.C. 3582(c)(1)(a) to reduce his sentence was arbitrary and
capricious. Todd also challenged the constitutionality of his
Mexican conviction and sentence. The district court denied his
petition, and he appeals.
II
3
Todd argues that the Bureau of Prisons abused its discretion
by not filing a motion to reduce his sentence pursuant to 18 U.S.C.
§ 3582(c)(1(A) due to his advanced age, poor health, and abuse
suffered while imprisoned in Mexico. Todd asserts that we have
jurisdiction to hear his appeal under § 2241 as well as the
Administrative Procedures Act.1 The government argues that there is
no judicial review available under the APA for Bureau of Prisons’
decisions not to file § 3582(c)(1)(A) motions. Although we have
never considered the question of whether the APA prohibits judicial
review of decisions by the Bureau of Prisons not to file §
3582(c)(1)(A), the Seventh, Ninth, and Eleventh Circuits have
concluded that the decision not to file a § 3582(c)(1)(A) motion is
not reviewable.2
Although we must always be sure of our appellate
jurisdiction,3 as a prudential matter we decline to decide this
question because Todd’s claim fails even if we assume that we have
jurisdiction to review his appeal. The APA requires us to hold
unlawful and set aside any agency action that is arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
1
5 U.S.C. §§ 702, 706(2)(A).
2
Fernandez v. United States, 941 F.2d 1488 (11th Cir. 1991);
Simmons v. Christensen, 894 F.2d 1041 (9th Cir. 1989); Turner v.
United States Parole Comm’n, 810 F.2d 612 (7th Cir. 1987).
3
Lee v. Wetzel, 244 F.3d 370, 374 (5th Cir. 2001).
4
with law.4 Section 3582(c)(1)(A) itself gives the Bureau discretion
to reduce the term of imprisonment if “extraordinary and compelling
reasons warrant such a reduction.”5 The Bureau’s regulation
implementing the statute states that the Bureau uses 3582(c)(1)(A)
“in particularly extraordinary or compelling circumstances which
could not reasonably have been foreseen by the court at the time of
sentencing.”6 The warden, Regional Director, and Administrator of
National Inmate Appeals specifically noted that the circumstances
cited by Todd in support of his request for compassionate release
were taken into account by the Commission when his sentence was
determined. The Bureau’s decision not to grant Todd’s request was
made in accordance with its regulations, and was not arbitrary or
capricious.
In addition, Todd challenges his Mexican conviction and
sentence were obtained in violation of his Constitutional rights.
We are prohibited by statute from considering a collateral attack
on Todd’s foreign conviction.7 His challenge fails.
AFFIRMED.
4
5 U.S.C. § 706(2)(A).
5
Id.6
28 C.F.R. § 571.60.
7
18 U.S.C. § 3244(1).
5