Rublee v. Fleming ( 1998 )

Revised November 24, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-50177
Summary Calendar
_____________________
CHARLES A RUBLEE,
Petitioner-Appellee,
v.
L E FLEMING,
Respondent-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
November 6, 1998
Before KING, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:
Charles Rublee (Rublee), a federal prisoner, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition
challenging the execution of his sentence. For the reasons that
follow, we affirm the decision of the district court.
I. BACKGROUND
According to his petition, Rublee was arrested for a drug
offense involving marijuana and was released on bond. After he
failed to appear, a warrant for Rublee’s arrest issued. Rublee
was located in Colombia, and was returned to the United States
where he pled guilty to a single-count indictment charging him
with a violation of 21 U.S.C. § 841(a)(1). On January 6, 1997,
the trial court sentenced him to thirty-three months of
imprisonment and three years of supervised release.
While in prison, Rublee participated in and completed a 500-
hour residential drug-treatment program which provisionally
qualified him for early release under 18 U.S.C. § 3621(e)(2)(B).1
During the course of his treatment, he was considered for
placement in a community corrections center (CCC) (a type of
half-way house where inmates receive community-based treatment),
but, on July 31, 1997, Rublee was denied placement due to concern
that he would be a flight risk. The denial of the request for
CCC placement disqualified Rublee from early release under Bureau
of Prisons (BOP) regulations. Rublee filed grievances with the
warden, the regional director, and the BOP national
administrative inmate appeals division requesting administrative
review of the decision to deny him CCC placement and a § 3621(e)
early release. All of Rublee’s requests for administrative
relief were denied.
On November 7, 1997, Rublee filed a § 2241 petition in the
district court arguing that the BOP exceeded its authority by
requiring that a prisoner be eligible to participate in a
1
Rublee completed the treatment program on February 27,
1998.
2
community-based drug-treatment program to be eligible for a
§ 3621(e) sentence reduction, and that the BOP’s requirements
were arbitrary and a violation of his constitutional rights. The
magistrate judge, citing Venegas v. Henman, 126 F.3d 760, 765
(5th Cir. 1997), cert. denied, 118 S. Ct. 1679 (1998), concluded
that the BOP’s policy of refusing to grant § 3621(e) sentence
reductions to inmates ineligible for community-based treatment
was within the discretion afforded the BOP under § 3621. The
magistrate judge recommended dismissal of Rublee’s § 2241
petition. On February 5, 1998, the district court adopted the
magistrate judge’s recommendation and dismissed Rublee’s § 2241
petition. Rublee timely appealed.2
II. DISCUSSION
A. Promulgation of 28 C.F.R. § 550.58(a)(1)(v)
Section 3621(b) provides that “[t]he Bureau shall make
available appropriate substance abuse treatment for each prisoner
the Bureau determines has a treatable condition of substance
addiction or abuse.” 18 U.S.C. § 3621(b). Section 3621(e)(1)
states that in order for the BOP to carry out this requirement,
it “shall . . . provide residential substance abuse treatment
(and make arrangements for appropriate aftercare).” Id. §
3621(e)(1).
2
Rublee’s projected release date is November 8, 1998.
3
The statute defines “residential substance abuse treatment”
as “a course of individual and group activities, lasting between
6 and 12 months, in residential treatment facilities set apart
from the general prison population.” Id. § 3621(e)(5)(A). The
statute defines “aftercare” as “placement, case management and
monitoring of the participant in a community-based substance
abuse treatment program when the participant leaves the custody
of the Bureau of Prisons.” Id. § 3621(e)(5)(C). As an incentive
for prisoners to participate in the drug treatment program,
[t]he period a prisoner convicted of a nonviolent
offense remains in custody after successfully
completing a treatment program may be reduced by the
Bureau of Prisons, but such reduction may not be more
than one year from the term the prisoner must otherwise
serve.
Id. § 3621(e)(2)(B).
Under BOP regulations, certain categories of inmates are not
eligible for early release, including “[i]nmates who are not
eligible for participation in a community-based program as
determined by the Warden on the basis of his or her professional
discretion.” 28 C.F.R. § 550.58(a)(1)(v). The BOP policy
statement expresses the BOP’s belief that a community-based
program (either in a CCC or on home confinement) is necessary to
achieve successful results. See 61 Fed. Reg. 25,121 (1996).
Rublee argues that the BOP exceeded its authority by
requiring completion of a community-based drug program as a
component of the drug treatment program necessary to be eligible
4
for early release under § 3621(e)(2)(B). He contends that the
definitions of “residential substance abuse treatment” and
“aftercare” in § 3621(e)(5) are unambiguous and that the plain
language of the statute indicates that a community-based drug
program is not a component of the drug program described in
§ 3621.
This court reviews the BOP’s regulations in § 550.58 under
the two-step standard set forth in Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
See Wottlin v. Fleming, 136 F.3d 1032, 1035 (5th Cir. 1998).
First, if the intent of Congress is clear and unambiguously
expressed in § 3621, the BOP and the court must give effect to
congressional intent. See id. (citing Chevron, 467 U.S. at 842-
43). Second, if the statutory language is ambiguous or silent on
a particular issue, then we must determine whether the BOP’s
interpretation is “‘based on a permissible construction of the
statute.’” Id. (quoting Chevron, 467 U.S. at 843).
Although this circuit has held that § 3621(e)(2)(B) gives
the BOP discretion to determine which prisoners are eligible for
early release and that the “BOP did not abuse its discretion in
promulgating 28 C.F.R. § 550.58,” id. at 1036, neither this nor
any other circuit has addressed specifically whether the BOP
exceeded its authority in promulgating 28 C.F.R.
§ 550.58(a)(1)(v), which disqualifies prisoners not eligible for
community-based treatment from receiving early release under
5
§ 3621(e)(2)(B). Because the language of the statute does not
unambiguously prohibit the BOP’s community-based treatment
requirement, the requirement need only be a permissible
interpretation of the statute to survive Chevron scrutiny. This
court will defer to legislative regulations so long as they are
not “‘arbitrary, capricious, or manifestly contrary to the
statute.’” Wottlin, 136 F.3d at 1035 (citing Chevron, 467 U.S.
at 844).
In Venegas v. Henman, this court focused on the language
“may be reduced” in § 3621(e)(2)(B), and found that it affords
the BOP discretion to determine which offenses constitute
“nonviolent offenses” eligible for early release. See 126 F.3d
at 763. We held that the BOP’s decision to exclude felon-in-
possession of a weapon convictions and drug convictions enhanced
for possession of a firearm was “consistent with the letter and
spirit of the Bureau’s authority as derived from section
3621(e).” Id. at 765.
In Wottlin v. Fleming, this court reviewed the
disqualification from § 3621(e)(2)(B) early release of “‘inmates
who have a prior felony conviction for homicide, forcible rape,
robbery, or aggravated assault.’” 136 F.3d at 1035 (quoting 28
C.F.R. § 550.58). We agreed with the Ninth Circuit that the
language of § 3621(e)(2)(B), which provides that a prisoner’s
sentence “may be reduced” after the successful completion of a
drug-treatment program, affords the BOP broad discretion in
6
deciding which inmates qualify for early release, and agreed with
the Ninth and Third Circuits that § 550.58 was not an abuse of
the BOP’s discretion. See id. at 1035-36 (citing Stiver v. Meko,
130 F.3d 574, 577 (3d Cir. 1997); Jacks v. Crabtree, 114 F.3d
983, 984 (9th Cir. 1997), cert. denied, 118 S. Ct. 1196 (1998)).
The Venegas and Wottlin cases stand for the proposition that
the language of § 3621(e)(2)(B) affords the BOP discretion in
deciding whether to allow early release upon completion of the
drug-treatment program described in the statute. Rublee argues
that the plain language of the statute precludes the BOP from
requiring community-based treatment because the statutory
definition of “residential substance abuse treatment” is defined
explicitly as “a course of individual and group activities,
lasting between 6 and 12 months, in residential treatment
facilities set apart from the general prison population,” and
does not include any reference to community-based treatment. 18
U.S.C. § 3621(e)(5)(A). However, it is the responsibility of the
BOP to determine whether an inmate has successfully completed a
drug-treatment program: “The legislative history of section
3621(e) states that the determination of successful completion of
a substance abuse treatment program[] is to be ‘based on criteria
established and applied by the Bureau of Prisons.’” Venegas, 126
F.3d at 762 (quoting H.R. Rep. No. 103-320 (1993)). The BOP, “in
exercising its discretion in determining the successful
7
completion of a residential drug abuse treatment program under 18
U.S.C. 3621(e), . . . therefore requir[ed] that consideration for
early release be contingent upon the inmate’s completion of
transitional services in a community-based program.” 61 Fed.
Reg. 25,121 (1996).
Even if Rublee is correct that the BOP has improperly
expanded the definition of “residential substance abuse
treatment” by requiring community-based treatment, he still is
not entitled to the relief he seeks because § 3621(e)(2)(B)
affords the BOP broad discretion to deny sentence reductions to
even those inmates who have “successfully complet[ed] a treatment
program.” 18 U.S.C. § 3621(e)(2)(B); see Wottlin, 136 F.3d at
1035-36; Venegas, 126 F.3d at 763-65. Under § 3621(e)(2)(B), the
BOP “may,” but implicitly need not, reduce the sentences of such
inmates.3 Therefore, it has the authority to make
§ 3621(e)(2)(B) early release contingent upon the fulfillment of
the community-based treatment requirement.
Rublee next argues that the BOP’s requirement that an inmate
complete community-based treatment prior to early release
subverts the definition of “aftercare,” which requires community-
3
Rublee contends that “[s]ection 3621(e)(2) plainly and
unambiguously authorizes sentence reduction for prisoners
convicted of a nonviolent offense who successfully complete a 6
to 12 month residential substance abuse treatment program while
in prison.” Rublee is correct that the BOP is authorized to
allow sentence reductions for such prisoners. However, it is not
required to do so.
8
based treatment after “the participant leaves the custody of the
Bureau of Prisons.” 18 U.S.C. § 3621(e)(5)(C). The definition
of “aftercare” set forth in § 3621(e)(5)(C) and the requirement
that the BOP “make arrangements for appropriate aftercare,” id.
§ 3621(e)(1), do not preclude the BOP from exercising its
discretion under § 3621(e)(2)(B) to require pre-release
community-based treatment before awarding a sentence reduction.
The provisions are not mutually exclusive.
Finally, Rublee argues that the BOP’s community-based
treatment requirement is impermissible because it conflicts with
the BOP’s earlier interpretation of the statute that did not
require community-based treatment. See 61 Fed. Reg. 25,121(1996). The court does not find this argument compelling. The
BOP added the community-based treatment requirement after
receiving public comment, including a comment from the American
Psychiatric Association (APA) that expressed the belief that the
BOP’s requirement of one hour per month of transitional services
would be insufficient to facilitate good results. See id.Therefore, the BOP did not abuse its discretion in adding the
community-based treatment requirement to its regulations.
The exclusion of prisoners who cannot complete community-
based treatment from § 3621 early release is not arbitrary or
capricious and does not conflict with the purposes underlying the
9
statute. Therefore, we hold that 28 C.F.R. § 550.58(a)(1)(v) is
a permissible exercise of the BOP’s discretion under § 3621(e).4
B. Constitutional Claims
Rublee argues that the application of § 550.58 to him
violates his rights to due process and equal protection.
Liberally construed, Rublee’s due process argument is that he had
a protected liberty interest in a sentence reduction once he
completed the residential drug-treatment program. He further
argues that the BOP’s community-based treatment requirement
violates equal protection because completion of a drug program in
a half-way house is not rationally related to the successful
completion of the drug program described in § 3621 and because it
discriminates against prisoners not eligible for CCC placement.
Rublee’s argument that he had a protected liberty interest
in receiving the sentence reduction lacks merit. A protected
liberty interest exists only when a regulation uses “‘mandatory
language to place a substantive limit on official discretion.’”
Wottlin, 136 F.3d at 1036 (quoting United States v. Tubwell, 37
F.3d 175, 179 (5th Cir. 1994)). There is no mandatory language
requiring that inmates be released upon completion of the drug-
4
Rublee also argues that the limitation of § 3621(e) early
release to those inmates who complete community-based treatment
produces absurd and unconstitutional results because inmates can
be denied CCC placement for numerous reasons that bear no
relation to their ability to complete the drug-treatment program
defined in the statute. This argument will be addressed infra in
the analysis of Rublee’s constitutional claims.
10
treatment program, and thus Rublee had no protected liberty
interest in receiving a § 3621(e)(2)(B) sentence reduction. See
id.
With respect to Rublee’s equal protection argument,
“[s]trict scrutiny is appropriate only where a government
classification implicates a suspect class or a fundamental
right.” Id. (citing City of Cleburne, Tex. v. Cleburne Living
Ctr., 473 U.S. 432 (1985)). Otherwise, rational-basis review
applies and this court need only determine whether the
classification is rationally related to a legitimate government
interest. See id. at 1037.
The BOP’s classification implicates neither a fundamental
right nor a suspect class. In Wottlin, we refused to recognize a
fundamental right to early release “‘among the rights and
liberties protected by the Constitution.’” Id. at 1036-37
(quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,
29 (1973)).5 Nor does the classification of prisoners by their
eligibility for CCC placement implicate a suspect class.
Thus, rational-basis review is appropriate. The exclusion
from early release of those inmates ineligible for community-
based treatment survives rational-basis review. In promulgating
5
In Wottlin, we also held that classification of prisoners
based on the type of offense for which they were convicted did
not implicate a suspect class, and that the classification was
rationally related to Congress’s intent to afford early release
only to prisoners convicted of nonviolent offenses. See Wottlin,
136 F.3d at 1036-37.
11
the regulation, the BOP took account of the APA’s concern about
the efficacy of transitional drug-treatment services in an
institutional context. See 61 Fed. Reg. 25,121 (1996). The BOP
agreed with the APA that enhanced transitional services were
necessary for the successful completion of the drug program, and
decided to require community-based treatment to increase the
opportunity for positive results. See id. This requirement is
rationally related to the legitimate government interest of
reducing recidivism, which is a stated purpose underlying
§ 3621(e). See Venegas, 126 F.3d at 763 (citing H.R. Rep. No.
103-320 (1993)). Accordingly, there is a rational basis for the
categorization contained in § 550.58(a)(1)(v) and Rublee’s
constitutional challenges fail.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the
district court. Rublee’s motion to expedite the appeal is denied
as moot.
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