IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 06-10104 F I L E D
September 20, 2007
Charles R. Fulbruge III
Clerk
MICHAEL RAY RICHARDSON,
Petitioner-Appellee,
v.
DAN JOSLIN,
Warden, Federal Correctional Institution, Seagoville,
Respondent-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before JONES, Chief Judge, REAVLEY and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Michael Richardson, while serving his sentence for conspiracy to commit
money laundering, participated in the Residential Drug Abuse Treatment Pro-
gram (“RDAP”) conducted by the Bureau of Prisons (“BOP”) with the under-
standing that he was eligible for a reduction in his sentence should he success-
fully complete the program. Upon Richardson’s completion of the residential
No. 06-10104
segment of the RDAP, the BOP determined that he was ineligible for a reduction
because of the presence of firearms at his house at the time evidence of his mon-
ey laundering activities was gathered.
Richardson appealed that determination to the highest level of the BOP,
but to no avail, so he filed the instant petition for writ of habeas corpus. Reject-
ing the findings, conclusions, and recommendation of the magistrate judge, the
district court issued the writ on the ground that the BOP’s findings are contrary
to the BOP’s own regulations and are therefore arbitrary and capricious and a
violation of Richardson’s right to due process. Because Richardson has no liberty
interest in a sentence reduction, and the BOP has discretion to consider the full
nature of the crime and determine Richardson’s eligibility, there was no due pro-
cess violation, so we reverse and render judgment for the respondent.
I.
According to his presentence investigation report (“PSR”), Richardson was
a participant in a large-scale drug trafficking organization distributing metham-
phetamine and marihuana, the proceeds of which he laundered. The PSR also
indicated that, two months before his arrest, officers executed a search warrant
at a house he shared with his wife, mother, and children. The officers seized two
handguns, marihuana, drug ledgers, and currency. The guns were eventually
returned to Richardson’s mother, who owned them.
Once Richardson was incarcerated, his eligibility for a sentence reduction
under the RDAP program was evaluated.1 He was advised in writing that his
1
The RDAP program exists pursuant to a statute that grants discretion to the BOP to
provide alternative conditions of confinement for prisoners who have completed the program.
18 U.S.C. § 3621(e)(2)(A). In addition, upon completion of the program the prisoner’s sentence
“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.” § 3621(e)(2)(B).
(continued...)
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No. 06-10104
offense did not exclude him from participation in the program or render him in-
eligible for the sentence reduction. He did, however, execute an “Agreement to
Participate” that included a notice that the eligibility determination was provi-
sional and might later be changed.
After completing the residential portion of the RDAP, Richardson was
considered for placement in the community-based portion of the program. That
process included a final review of his eligibility for early release. Although the
correctional center staff determined Richardson was eligible for a sentence re-
duction, the BOP regional administrator disagreed in light of the weapons pres-
ent at Richardson’s house. The administrator concluded that the presence of the
weapons rendered Richardson ineligible under BOP regulations that exclude in-
mates from consideration for a reduction if their current offense was a felony
that “by its nature or conduct, presents a serious potential risk of physical force
against the person or property of another . . . .” § 550.58(a)(1)(vi)(C).
Richardson appealed through the BOP’s administrative process and was
denied relief at all three levels of review. The warden, the regional director, and
the Administrator for National Inmate Appeals concluded that the presence of
1
(...continued)
The BOP has established regulations governing which prisoners are eligible for early
release under the RDAP. Not eligible are
(vi) Inmates whose current offense is a felony:
(A) That has as an element, the actual, attempted, or threatened use of
physical force against the person or property of another, or
(B) That involved the carrying, possession, or use of a firearm or other
dangerous weapon or explosives (including any explosive material or explosive
device), or
(C) That by its nature or conduct, presents a serious potential risk of phy-
sical force against the person or property of another . . . .”
28 C.F.R. § 550.58(a)(1).
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No. 06-10104
the firearms left Richardson ineligible for a sentence reduction despite his com-
pletion of the residential portion of the RDAP.
Richardson’s habeas petition asserts that the BOP violated his right to
procedural due process by arbitrarily revoking his eligibility for a reduction in
sentence upon completion of the RDAP. The district court issued the writ after
concluding that the BOP had failed to apply its own regulations in determining
Richardson’s eligibility, and thus the determination that he was ineligible was
an abuse of discretion and a violation of the right to procedural due process.
II.
We review a grant of habeas relief for clear error with respect to findings
of fact and de novo for issues of law. Ramirez v. Dretke, 396 F.3d 646, 649 (5th
Cir. 2005). Relying on United States ex rel. Accardi v. Shaughnessy, 347 U.S.
260 (1954), the district court held that the BOP had arbitrarily and capriciously
applied its own regulations, specifically § 550.58(a)(1)(vi)(C),2 which constituted
an abuse of discretion and violation of Richardson’s right to procedural due
process.
The district court’s Accardi analysis is misapplied. The Accardi doctrine
“stands for the unremarkable proposition that an agency must abide by its own
regulations.” Chevron Oil Co. v. Andrus, 588 F.2d 1383, 1386 (5th Cir. 1979).
Thus, “an agency's failure to afford an individual procedural safeguards required
under its own regulations may result in the invalidation of the ultimate adminis-
trative determination.” United States v. Morgan, 193 F.3d 252, 266 (4th Cir.
1999). See also Alamo Express, Inc. v. United States, 613 F.2d 96, 98 (5th Cir.
1980). In Morgan, where BOP regulations required that a prisoner have compe-
tent representation in a hearing before being subject to forcible medication, the
2
The district court referred to the BOP’s Program Statement 5162.04 § 7(c), which re-
peats verbatim § 550.58(a)(1)(vi)(C), the regulation relied on by the BOP administrators.
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No. 06-10104
court held, 193 F.3d at 265-67, that failure to provide such representation would
render the result of the administrative hearing invalid. In Alamo Express,
where Interstate Commerce Commission regulations required telephonic notice
and comment before the granting of an Emergency Temporary Authority permit,
this court held, 613 F.2d at 98, that failure to give notice and allow for comment
meant that the grant of the permit was invalid.
Richardson, however, received all the procedural safeguards to which he
was entitled under the statute and regulations. His case was reviewed internal-
ly by the prison officials, then by the regional director, in accordance with BOP
policy. The regional administrator’s determination was then reviewed at three
levels, as provided for by regulation.
Furthermore, the BOP program statement on which the district court re-
lied requires that the officials “carefully examine the entire Offense Computation
section of the PSI and . . . the Offense Conduct section.” BOP Program State-
ment 5162.04 § 7(c). Accordingly, each official who reviewed Richardson’s case
referred to findings in the PSR in determining his ineligibility. In fact, it was
during this required review of the PSR that BOP administrators found evidence
of the presence of the handguns. There is no indication that BOP officials failed
to examine Richardson’s record.
The district court did not find that the BOP had failed to provide any re-
quired process, but rather that in applying the process the BOP came to the
wrong conclusion and abused its discretion. This is not a basis for an Accardi vi-
olation. If it were, review under Accardi would become a vehicle for district
courts to engage in de novo review of any agency determination made pursuant
to its own internal regulations. The BOP did not violate Richardson’s right to
due process, but instead the BOP granted Richardson all the procedure required
by regulation.
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No. 06-10104
III.
The district court also failed to answer the threshold question necessary
for any finding of a violation of a prisoner’s right to procedural due process:
whether he had a “‘liberty’ interest” that the prison action implicated or in-
fringed. Meachum v. Fano, 427 U.S. 215, 223-224 (1976). In the prison context,
a liberty interest is created in one of two ways: Either the Due Process Clause
confers a liberty interest, see Sandin v. Connor, 515 U.S. 472, 479 n.4 (1995)
(citing Vitek v. Jones, 445 U.S. 480, 493-94 (1980)), or such an interest is created
by the state through a statute, id. at 477-78, 483-84.
The Due Process Clause confers a liberty interest in punishment that is
not “‘qualitatively different’ from the punishment characteristically suffered by
a person convicted of crime.” Id. at 479 n.4. Thus, in Vitek the Court concluded
that the involuntary transfer of a prisoner to a state mental hospital for treat-
ment was sufficiently different from the typical punishment that it implicated
the Due Process Clause regardless of any state regulation. Id. (citing Vitek, 445
U.S. at 493-94). Likewise, “independent of any state regulation, an inmate had
a liberty interest in being protected from the involuntary administration of psy-
chotropic drugs.” Id. (citing Washington v. Harper, 494 U.S. 210, 221-22 (1990)).
So long, however, as the punishment is “‘within the normal limits or range of
custody which the conviction has authorized the State to impose,’” there is no vi-
olation of a protected liberty interest conferred by the Due Process Clause. Id.
at 478 (quoting Meachum, 427 U.S. at 225).
Where the Due Process Clause does not create a liberty interest, the gov-
ernment can create one by statute. Id. at 483-84. Such a statute confers a lib-
erty interest that is “generally limited to freedom from restraint which, while not
exceeding the sentence in such an unexpected manner as to give rise to protec-
tion by the Due Process Clause of its own force, . . . nonetheless imposes atypical
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No. 06-10104
and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Id. (citing Harper, 494 U.S. at 221-22; Vitek, 445 U.S. at 493). For
example, an action that “inevitably affect[s] the duration of [a] sentence” might
violate a liberty interest created by statute. Id. at 487.
The hallmark of a statute that has not created a liberty interest is discre-
tion. Where the statute grants the prison administration discretion, the govern-
ment has conferred no right on the inmate. Meachum, 427 U.S. at 226-28.3
Thus, a “protected liberty interest exists only when a regulation uses ‘mandatory
language to place a substantive limit on official discretion.’” Rublee v. Fleming,
160 F.3d 213, 217 (5th Cir. 1998) (quoting Wottlin v. Fleming, 136 F.3d 1032,
1035 (5th Cir. 1998) (quoting United States v. Tubwell, 37 F.3d 175, 179 (5th Cir.
1994))). A unilateral expectation of certain treatment is insufficient; a prisoner
must “have a legitimate claim of entitlement to it.” Bulger v. United States
Bureau of Prisons, 65 F.3d 48, 50 (5th Cir. 1995).
The Due Process Clause does not itself confer a liberty interest in a sen-
tence reduction for completion of an RDAP. The denial of Richardson’s eligibility
does not impose a punishment “‘qualitatively different’ from the punishment
characteristically suffered by a person convicted of crime.” Sandin, 515 U.S. at
479 n.4. The BOP’s determination means only that Richardson will serve the
remainder of his original sentence under typical circumstances.
In this case, not only does the Due Process Clause not create a protected
liberty interest, neither does any statute or regulation. The grant of discretion
to the BOP in § 3621(e)(2)(B) indicates that no entitlement and, hence, no liberty
3
The Court has cautioned against concluding that the converse of this statement is
true: Mandatory language does not necessarily create a protected liberty interest. Sandin,
515 U.S. at 483 (“[W]e believe that the search for a negative implication from mandatory lan-
guage in prisoner regulations has strayed from the real concerns undergirding the liberty pro-
tected by the Due Process Clause.”).
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No. 06-10104
interest, was created. In Rublee, this court addressed the precise issue of wheth-
er sentence reductions offered under § 3621(e)(2)(B) for completion of an RDAP
created a liberty interest. We held that “[t]here is no mandatory language re-
quiring that inmates be released upon completion of the drug-treatment pro-
gram, and thus Rublee had no protected liberty interest in receiving a § 3621(e)-
(2)(B) sentence reduction.” Rublee, 160 F.3d at 217.4 Likewise, Richardson has
no protected liberty interest in receiving a § 3621(e)(2)(B) sentence reduction,
and there can be no procedural due process violation.5
Richardson counters, however, that the BOP action does in fact impose an
“atypical and significant hardship” precisely because it “affect[s] the duration of
his sentence” by extending his confinement beyond the date of his release had
he received a reduction for completion of the RDAP. This argument puts the
cart before the horse and assumes Richardson was entitled to the reduction,
thereby rendering the BOP’s later determination of his ineligibility a depriva-
tion.
Richardson, however, was not entitled to the reduction, because Congress
has granted the BOP broad discretion in determining whether to reduce the sen-
4
See also Lopez v. Davis, 531 U.S. 230, 241 (2001); Wottlin, 136 F.3d at 1037 (finding
due process claim lacks merit because defendant can identify “no portions of Program State-
ment 5330.10 that mandate the granting of an early release to an inmate who completes the
Program.”); Venegas v. Henman, 126 F.3d 760, 765 (5th Cir. 1997) (“The loss of the mere oppor-
tunity to be considered for discretionary early release is too speculative to constitute a depri-
vation of a constitutionally protected liberty interest.”).
5
Richardson argues that this court recognized, by inference, a protected liberty interest
in a § 3621(e) reduction in Royal v. Tombone, 141 F.3d 596 (5th Cir. 1998). There we held that
a change in a BOP regulation did not deprive Royal of a protected liberty interest in a reduc-
tion, because he was never eligible for the reduction even before the change. Id. at 603. Rich-
ardson would have us draw the inference that had Royal been eligible before the change, he
would have had a protected liberty interest in the reduction. Such an inference is not justified
and would directly conflict with this court’s holdings in Wottlin and Venegas, which predate
Royal. If Royal stood for the proposition Richardson suggests, it would violate “the firm rule
of this circuit that one panel may not overrule the decisions of another.” United States v. Tay-
lor, 933 F.2d 307, 313 (5th Cir. 1991).
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No. 06-10104
tence of a prisoner who has successfully completed an RDAP. § 3621(e)(2)(B);
Lopez v. Davis, 531 U.S. 230, 241 (2001) (“When an eligible prisoner successfully
completes drug treatment, the Bureau thus has the authority, but not the duty,
both to alter the prisoner’s conditions of confinement and to reduce his term of
imprisonment.”). Because Richardson was not entitled to the reduction, the
BOP’s action is not a deprivation of a protected liberty interest and does not af-
fect the duration of his sentence; he will serve no more time than that of his ori-
ginal sentence.
The judgment is REVERSED, and judgment is RENDERED in favor of the
respondent.6
6
Because the BOP did not violate Richardson’s right to due process in concluding that
he was ineligible for a sentence reduction, it is unnecessary for us to address whether the dis-
trict court exceeded its authority by granting a one-year sentence credit and ordering Richard-
son’s immediate release.
9