IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50220
Conference Calendar
CHRIS HOWARD McDANIEL,
Petitioner-Appellant,
versus
LESTER E. FLEMING, Warden,
Federal Correctional Institution Bastrop,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A:97-CV-654
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August 18, 1998
Before KING, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Chris Howard McDaniel appeals the district court’s denial of
his application for writ of habeas corpus. He challenges his
ineligibility to receive a sentence reduction for successfully
completing a substance abuse treatment program due to the Bureau
of Prisons’ (“BOP”) determination that a defendant who receives a
sentence enhancement for possession of a dangerous weapon is
ineligible for the reduction because it only applies to
nonviolent offenders. See 18 U.S.C. § 3621(e)(2); BOP Program
*
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that this opinion should not be published and is not precedent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. 98-50220
-2-
Statement No. 5612.02, Section 9. McDaniel argues that BOP
Program Statement No. 5612.02, Section 9, should be set aside
because it is a legislative rule and was not promulgated in
accordance with the Administrative Procedure Act’s notice-and-
comment requirements and because the BOP exceeded its statutory
authority in making this rule. McDaniel’s position lacks merit
because this court has previously determined that this Program
Statement is an interpretive rule not subject to the notice-and-
comment requirements of the APA. See Royal v. Tombone, 141 F.3d
596, 600 (5th Cir. 1998); Venegas v. Henman, 126 F.3d 760, 763
(5th Cir. 1997); see also Reno v. Koray, 515 U.S. 50, 61 (1995)
(noting BOP program statement was an interpretive guideline not
subject to notice-and-comment requirements).
McDaniel concedes that his contention that the BOP exceeded
its statutory authority by excluding prisoners who receive
sentence enhancements pursuant to U.S.S.G. § 2D1.1(b)(1) from
eligibility for sentence reductions is meritless in light of our
decision in Venegas. See Venegas, 126 F.3d at 765.
AFFIRMED.