Sanchez v. Tamez ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 11, 2009
No. 08-10801
Summary Calendar Charles R. Fulbruge III
Clerk
VINCENT MIKE SANCHEZ
Petitioner-Appellant
v.
REBECCA TAMEZ, Warden, FCI Fort Worth
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:08-CV-325
Before REAVLEY, DAVIS, and GARZA, Circuit Judges.
PER CURIAM:*
Vincent Mike Sanchez, federal prisoner # 10021-273, appeals the denial
of his 28 U.S.C. § 2241 petition challenging his ineligibility for early release
under 18 U.S.C. § 3621(e) on account of his conviction for the use and carrying
of a firearm during a drug trafficking crime despite his successful completion of
a Residential Drug Abuse Program. Sanchez challenges his ineligibility for early
release, arguing that the facts underlying his offense establish that it was not
a crime of violence.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-10801
Sanchez pleaded guilty to the use and carrying of a firearm during a drug
trafficking crime, a violation of 18 U.S.C. § 924(c)(1)(A)(i). The Bureau of
Prisons (BOP), in its discretion, has determined that the conviction of such an
offense renders the inmate categorically ineligible for early release, see 28 C.F.R.
§ 550.55(b)(5)(ii), and the Supreme Court has deemed this exercise of discretion
permissible. Lopez v. Davis, 531 U.S. 230, 244 (2001). Because Sanchez is
categorically ineligible given that his offense involved the possession of a
firearm, a fact he does not dispute, his suggestion that reference should be had
to the specific facts underlying his conviction to determine his eligibility for early
release is unavailing.
Sanchez argues for the first time on appeal pursuant to Arrington v.
Daniels, 516 F.3d 1106 (9th Cir. 2008), that (1) the BOP failed to comply with
the Administrative Procedure Act’s requirement that the BOP articulate a
rationale for categorically denying prisoners early release based on their
preconviction conduct and (2) his rights under the Equal Protection Clause have
been violated. “[A]rguments not raised before the district court are waived and
cannot be raised for the first time on appeal.” LeMaire v. La. Dep’t of Transp. &
Dev., 480 F.3d 383, 387 (5th Cir. 2007).
AFFIRMED.
2