FILED
NOT FOR PUBLICATION OCT 10 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHANE AARON ABBOTT, No. 12-35801
Petitioner - Appellant, D.C. No. 3:11-cv-01047-MO
v.
MEMORANDUM*
FEDERAL BUREAU OF PRISONS; J.E.
THOMAS, Warden,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted August 26, 2014
Seattle, Washington
Before: WARDLAW, GOULD, and CHRISTEN, Circuit Judges.
In 2011, Petitioner Shane Abbott (“Abbott”) sought acceptance into the
Residential Drug Abuse Program (“RDAP”) run by the Bureau of Prisons (“BOP”)
and was denied, based on a 2009 BOP rule that precluded prisoners with
outstanding warrants from RDAP eligibility. He filed a petition for a writ of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
habeas corpus seeking to compel the BOP to allow him into RDAP, which was
denied by the district court. He appealed that decision in 2012.
While Abbott’s 2012 appeal was pending, the BOP changed its mind about
proper procedure and changed its course. The BOP discovered internal guidance
that, along with the quashing of one of Abbott’s warrants, resulted in a new review
pursuant to which the BOP determined that Abbott was eligible to participate in
RDAP. But the BOP also concluded that Abbott was not eligible to receive
RDAP’s early release incentive of a sentence reduction, because of his prior
Montana conviction for unlawful restraint. BOP determined that the Montana
unlawful restraint conviction was equivalent to “kidnaping,” barring his eligibility
under 28 C.F.R. § 550.55(b)(4).
We remanded this case to the district court for the limited purpose of
determining Abbott’s eligibility for RDAP’s sentence reduction. Upon remand,
the district court held that it lacked jurisdiction to review Abbott’s challenge to his
denial of eligibility for sentence reduction on the ground that the BOP's decision
was an individualized early release determination, as opposed to a categorical
challenge.
Abbott now appeals that decision, renewing the arguments presented in his
original habeas petition and raising two additional contentions: 1) that the district
-2-
court erred in holding that it lacked jurisdiction; and 2) that the BOP’s
interpretation of 28 C.F.R. § 550.55(b)(4) to preclude his eligibility for a sentence
reduction was arbitrary and capricious.
The claims presented in Abbott’s initial habeas petition regarding the
legality of the BOP’s 2009 RDAP eligibility rule, renewed in this appeal, are
rendered moot by the BOP’s decision to admit him to the RDAP program. Abbott
has received all the relief sought in his original petition: RDAP participation,
eligibility for placement in a halfway house program, and consideration for early
release. Although he was unsuccessful in getting a sentence reduction, he was
accepted as a participant in RDAP and was not precluded from consideration of
such eligibility. Abbott retains no “legally cognizable interest for which the courts
can grant a remedy.” Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189 F.3d 851,
854 (9th Cir. 1999). Therefore, Abbott’s initial and renewed appeal as to the
BOP’s 2009 RDAP eligibility rule is dismissed as moot.
Turning to Abbott’s appeal of the district court’s decision on limited
remand, the court erred when it held that it lacked jurisdiction to review Abbott’s
challenge. It is true that the BOP has broad, unreviewable discretion over
individualized decisions regarding RDAP eligibility. See Reeb v. Thomas, 636
F.3d 1224, 1227–28 (9th Cir. 2011). But here Abbott makes a categorical
-3-
challenge to the BOP’s interpretation of its own regulation, which is not foreclosed
from review. Cf. Close v. Thomas, 653 F.3d 970, 974 (9th Cir. 2011) (“These
petitions allege that the ‘BOP action is contrary to . . . its statutory authority.’
Therefore, the petitions are within [our] jurisdiction.” (citation omitted)).
We next and finally address whether Abbott’s prior conviction for unlawful
restraint, as codified in Montana Code Annotated § 45-5-301, is equivalent to
kidnaping under 28 C.F.R. § 550.55(b)(4). We conclude that the Montana
unlawful restraint elements are not equivalent to kidnaping. The BOP’s conflation
of the two was arbitrary and capricious. We have previously explained that the
offenses listed in 28 C.F.R. § 550.55(b)(4) (homicide, forcible rape, robbery,
aggravated assault, arson, kidnaping, and sexual abuse offenses committed on
minors) are an appropriate bar to early release because their commission
“rationally reflects the view that such inmates displayed readiness to endanger the
public.” Peck v. Thomas, 697 F.3d 767, 773 (9th Cir. 2012). Montana law,
however, does not view unlawful restraint similarly, describing the offense as “the
lowest form of interference with the liberty of another.” Mont. Code Ann. § 45-5-
301 (Annotator’s Note to § 45-5-301). Further, unlawful restraint is a lesser
included offense of kidnapping under Montana law. See State v. Brummer, 287
Mont. 168, 177 (1998). The BOP has not shown a reasonable basis to extend a
-4-
regulation involving a set of serious and violent crimes, all of which show
“readiness to endanger the public,” Peck, 697 F.3d at 773, to unlawful restraint in
violation of Montana law, which we consider to be a crime less serious and less
violent than those listed. We hold that BOP’s interpretive action is invalid. See
Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008).
We conclude that Abbott was eligible for early release under 18 U.S.C. §
3621(e)(2)(B). Abbott has already been released from prison and can no longer
benefit from a sentence reduction, but he still could benefit from a reduction in his
term of supervised release. See Reynolds v. Thomas, 603 F.3d 1144, 1148 (9th Cir.
2010), abrogated on other grounds by Sester v. United States, 132 S. Ct. 1463
(2012). We think it is legally permissible and serves the ends of justice and
fairness for us to remand to the district court for it to consider in the first instance
whether modification of Abbott’s term of supervised release is now appropriate in
light of BOP’s prior unlawful denial of Abbott’s eligibility for sentence reduction.
DISMISSED, REVERSED AND REMANDED with instructions.
-5-
Shane Abbott v. Bop
Combined Opinion