Landon Britt v. Bruce Plumley ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 12 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LANDON BRITT, No. 19-15060
Petitioner-Appellant, D.C. No. 1:18-cv-00386-EPG
v.
MEMORANDUM*
BRUCE PLUMLEY,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Erica P. Grosjean, Magistrate Judge, Presiding
Submitted November 13, 2019**
San Francisco, California
Before: BENNETT and LEE, Circuit Judges, and PIERSOL,*** District Judge.
Federal prisoner Landon Britt appeals from the district court’s judgment
denying his 28 U.S.C. § 2241 habeas petition. We have jurisdiction under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lawrence L. Piersol, United States District Judge for
the District of South Dakota, sitting by designation.
U.S.C. § 1291. We review de novo a district court’s denial of a section 2241
habeas petition, Davies v. Benov, 856 F.3d 1243, 1246 (9th Cir. 2017), and we
affirm.
Britt challenges a Bureau of Prisons (BOP) regulation that, along with the
accompanying BOP Program Statement, allows the BOP to categorically exclude
from early release consideration inmates convicted of drug conspiracy offenses
under 21 U.S.C. § 846 if their sentences were enhanced because firearms were
involved. See 28 C.F.R. § 550.55(b)(6).
Britt’s claim is foreclosed by the United States Supreme Court’s decision in
Lopez v. Davis, 531 U.S. 230 (2001). There, the Court held that 18 U.S.C.
§ 3621(e)(2)(B) granted the BOP discretion and authority to deny early release to a
category of prisoners whose offense is a felony involving carrying, possession, or
use of a firearm. Lopez, 531 U.S. at 244.
Lopez was convicted of possession with intent to distribute
methamphetamine in violation of 21 U.S.C. § 841, and the district court enhanced
his sentence by two levels pursuant to U.S.S.G. § 2D1.1(b)(1), finding he
possessed a firearm in connection with his offense. Id. at 236. The Supreme Court
held that § 3621(e)(2)(B) granted the BOP discretion to categorically deny early
release eligibility to certain classes of inmates and that the BOP’s final regulation,
28 C.F.R. § 550.58(a)(1)(vi)(2000)—excluding from early release all inmates with
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a felony offense involving possession of a weapon—was a permissible, reasonable
exercise of the agency’s discretion. Id. at 240–244.
Contrary to Britt’s contention, the reasoning in Lopez applies equally to
section 846 drug conspiracy convictions. Cf. United States v. O’Brien, 52 F.3d
277, 278–79 (9th Cir. 1995) (“[T]he intent of the [1988] amendment [to section
846] was to ‘make clear that any penalty that may be imposed for a substantive
drug offense may be imposed for [a] conspiracy to commit that offense.’”)
(quoting 134 Cong.Rec. S17,366 (Daily ed. Nov. 10, 1988)).
We agree with the magistrate judge that 28 C.F.R. § 550.55(b)(6) is not
arbitrary and capricious within the meaning of section 706 of the APA.
The government’s request for judicial notice is GRANTED. (Dkt. 9).
AFFIRMED.
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