[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-11206 OCTOBER 12, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-00246-CV-3-LAC-EMT
EDGAR VINASCO,
Petitioner-Appellant,
versus
DONALD F. BAUKNECHT, Warden,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(October 12, 20006)
Before BLACK, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Edgar Vinasco, a federal prisoner proceeding pro se, appeals the district
court’s denial of his petition for habeas relief, brought pursuant to 28 U.S.C.
§ 2241. The district court properly denied relief. Accordingly, we affirm.
I. Background
Vinasco filed a pro se § 2241 petition challenging the Bureau of Prisons’s
(“BOP”) failure to grant him early release for his participation in a drug treatment
program. The BOP based its decision on the presentence investigation report
(“PSI”) finding that Vinasco had carried a firearm, even though he was not charged
with a firearm offense nor was his sentence enhanced because he was carrying a
firearm during the underlying offense. The records show that Vinasco was
convicted of conspiracy to commit money laundering, in violation of 18 U.S.C. §
1956(h), and sentenced to 87 months imprisonment. The PSI stated that police
found a firearm and a knapsack containing approximately $14,000 and ledgers
with entries relating to narcotics and money laundering in Vinasco’s possession at
the time of his arrest.1 At sentencing, the district court had noted its belief that
Vinasco’s plea was a favorable disposition because, inter alia, the PSI showed that
Vinasco possessed a loaded firearm at the time of his arrest, although Vinaso was
not charged with a firearm offense. The court also recommended that Vinasco
1
The record neither contains the entire PSI nor reflects whether Vinasco objected to
these factual statements in the PSI. On appeal, Vinasco contends that there was no evidence that
he possessed the firearm in connection with the conspiracy to launder money.
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participate in a drug treatment program. Once incarcerated, the BOP determined
that even though Vinasco was eligible for the drug treatment program, Vinasco’s
participation in the program would not qualify him for early release because his
offense included possession of a firearm.2 Vinasco challenged this determination
through the administrative grievance process and was denied his requested relief.
After exhausting his administrative remedies, he filed the instant § 2241 petition.
The BOP answered the petition, explaining that Vinasco was ineligible for
early release under PS 5162.04 because his offense involved carrying a firearm and
that its policies permitted the consideration of the underlying conduct and not just
the offense of conviction. The BOP noted that the Supreme Court has upheld the
exercise of the BOP’s discretion in this area in Lopez v. Davis, 531 U.S. 230, 241,
243-44 (2001) (holding that 18 U.S.C. § 3621 3 grants the BOP the authority but not
2
Policy Statement (“PS”) 5612.04, § 7(c)(3) provides that “an inmate may be precluded
from receiving certain Bureau program benefits based on an offense listed in this section. For
the offenses listed below, the Sentencing Guidelines may provide little insight into the court’s
findings. Accordingly, rather than simply examining the base offense level or the specific
offense characteristics, case managers must carefully examine the entire Offense Computation
section of the PSI and, if necessary, the Offense Conduct section to determine if the offense
would preclude an inmate’s receiving certain Bureau program benefits based on whether the
offense satisfies the standard listed in the introductory portion of Section 7.” The offense of
money laundering in violation of § 1956 is listed in this section. Furthermore, the introductory
notes to section 7 state that if the offense “involved the carrying, possession, or use of a firearm”
the inmate is precluded from receiving certain Bureau program benefits. Id. § 7.
3
Under 18 U.S.C. § 3621(e)(2)(B), “[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.”
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the duty to reduce an inmate’s sentence after completion of a drug treatment
program and that in exercising that authority, the BOP may rely on rulemaking to
resolve certain issues of general applicability, and then may make categorical
exclusions based on those rules). The BOP attached to its answer: (1) Vinasco’s
qualification application showing that he was ineligible for the drug treatment
program because his offense involved a firearm; and (2) the BOP’s policy
statements.
Vinasco replied that he was being punished for conduct for which he was
neither charged nor convicted. He distinguished Lopez, arguing that he differed
from the petitioner in that case because the petitioner there had faced a sentencing
enhancement for the firearm possession, but he had not.
The magistrate judge recommended denying habeas relief, finding that the
BOP properly exercised its discretion in classifying certain offenses as ineligible
for early release, that this discretion had been upheld in Lopez, and that Vinasco’s
offense of conviction fell within the list of offenses for which the BOP could
preclude early release. The magistrate judge further found that the BOP’s
determination was reasonable because the PSI stated that Vinasco had been in
possession of a firearm.
The district court adopted the recommendation over Vinasco’s objections
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and denied habeas relief. Vinasco filed his notice of appeal, and then filed a
motion to amend judgment under Federal Rule of Civil Procedure 60(b)(3)(6),
seeking to amend his complaint to explain that the firearm possession was not in
connection with the conspiracy offense, as he carried the firearm with him at all
times because he lived in a dangerous neighborhood. The court denied the motion.
II. Standard of Review
The availability of habeas relief under § 2241 presents a question of law that
we review de novo. Sawyer v. Holder, 326 F.3d 1363, 1364 n.4 (11th Cir. 2003).
III. Discussion
Vinasco argues that the BOP abused its discretion by denying him credit for
participation in the drug treatment program because, according to Vinasco, he did
not possess the firearm in connection with his conspiracy offense. He contends
that, at the very least, the district court should have conducted an evidentiary
hearing.
As an initial matter, Vinasco abandoned or waived two arguments. First,
Vinasco no longer challenges whether the BOP had the discretion to deny early
release. Accordingly, he has abandoned that argument. Rowe v. Schreiber, 139
F.3d 1381, 1382 n.1 (11th Cir. 1998). Second, Vinasco requests an evidentiary
hearing for the first time on appeal. Therefore, he has waived that argument.
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Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1997) (holding that arguments
raised for the first time on appeal are not considered by this court absent one of
five exceptions).
Here, the district court properly determined that the BOP reasonably
determined that Vinasco was ineligible for the early release credit. Under PS
5612.04, § 7(c)(3), the BOP is to consider the offense conduct in full. In this case,
the PSI showed that Vinasco possessed the firearm at the time he was in possession
of the money and the ledgers. Moreover, the sentencing court noted that Vinasco
had a firearm but had not been charged with a firearm offense.
As stated, the BOP has the discretion to determine who is eligible for Bureau
programs. In exercising its discretion, the BOP promulgated a program statement,
which includes “[i]nmates whose current offense is a felony . . . that involved the
carrying, possession, or use of a firearm” in its list of categories of inmates the
BOP chose to exclude from eligibility. 28 C.F.R. § 550.58(a)(1)(vi) &
(a)(1)(vi)(B). The Supreme Court has held that the BOP’s Program statement is a
reasonable exercise of administrative discretion because Ҥ 3621(e)(2)(B)
demonstrates Congress’s concern for pre-conviction behavior and, therefore, the
BOP is justified in considering that behavior when making categorical exclusions.”
Lopez, 531 U.S. at 243; Walther v. Bauknecht, 155 F. App’x 463, 466 (11th Cir.
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2005). Because the conduct – carrying a firearm “indicates a willingness to
endanger the lives of others, the BOP’s categorical exclusion is a reasonable
interpretation of statutory intent because the statute states that only nonviolent
offenders are eligible.” Lopez, 531 U.S. at 243-44.
In light of the facts in the PSI, the district court’s recognition that Vinasco
had possession of a firearm at the time he was arrested for the conspiracy, and the
BOP’s discretionary authority, the BOP’s determination that the firearm was
possessed in connection with the underlying offense was reasonable. Accordingly,
we AFFIRM.
AFFIRMED.
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