Lonnie Peck v. J. Thomas

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LONNIE PECK, 
Petitioner-Appellant, No. 11-35283
v.  D.C. No.
J. E. THOMAS, 3:10-cv-00709-MO
Respondent-Appellee.


LOUIS D. MOON, 
Petitioner-Appellant, No. 11-35296
v.  D.C. No.
J.E. THOMAS, Warden, 3:10-cv-01154-MO
Respondent-Appellee.


DEVEN SUESUE, AKA Devon  No. 11-35355
Suesue, D.C. No.
Petitioner-Appellant,
v.  3:10-cv-01295-MO
ORDER AND
J. E. THOMAS, Warden, AMENDED
Respondent-Appellee.
 OPINION

Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding

Argued and Submitted
March 7, 2012—Portland, Oregon

Filed June 19, 2012
Amended October 5, 2012

12059
12060 PECK v. THOMAS
Before: William A. Fletcher, Raymond C. Fisher, and
Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee
 PECK v. THOMAS 12061

COUNSEL

Stephen R. Sady, Chief Deputy Federal Public Defender,
Portland, Oregon, for the appellant.

Ronald K. Silver, Assistant United States Attorney, Portland,
Oregon, for the appellant.
12062 PECK v. THOMAS
ORDER

The opinion filed on June 19, 2012, slip op. 7097 and avail-
able at 682 F.3d 1201 (2012), is amended as follows:

1. At slip op. 7109, the following sentence should
be changed from “But the BOP’s unsuccessful
attempts to enact the regulation at issue do not dem-
onstrate willful noncompliance with statutory man-
dates, and no court has ever found this to be case.”
to “But the BOP’s unsuccessful attempts to enact the
regulation at issue do not demonstrate willful non-
compliance with statutory mandates, and no court
has ever found this to be the case.”

2. At slip op. 7109, the following sentence should
be added at the end of the sentence above: “We
uphold the regulation under the usual APA standard.
See 5 U.S.C. § 706(2)(A); State Farm, 463 U.S. at
42-43.”

With this amendment, the panel judges have voted to deny
appellant’s petition for panel rehearing and petition for
rehearing en banc.

The full court has been advised of the petition for rehearing
en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.

Appellant’s petition for panel rehearing and petition for
rehearing en banc, filed August 3, 2012, is DENIED.

No further petitions for panel rehearing or rehearing en
banc will be considered.
 PECK v. THOMAS 12063
OPINION

BYBEE, Circuit Judge:

Petitioners Lonnie Peck, Louis Moon, and Deven Suesue
are statutorily eligible for early release from prison in
exchange for the successful completion of a residential drug
abuse treatment program (“RDAP”). The Bureau of Prisons
(“BOP”), however, has enacted a regulation disqualifying
them from the early release incentive on the basis of their cur-
rent convictions for felon in possession and one petitioner’s
past conviction for robbery. See 28 C.F.R. § 550.55(b). Peti-
tioners each filed for a writ of habeas corpus asking the dis-
trict court to invalidate the regulation under § 706 of the
Administrative Procedure Act (“APA”). The district court dis-
missed the petitions, and the appeals were consolidated. We
have jurisdiction under 28 U.S.C. § 1291 and § 22531 and we
affirm.

I. FACTS AND PROCEDURAL BACKGROUND

Petitioners were each convicted of being a felon in posses-
sion of a firearm under 18 U.S.C. § 922(g), and are either cur-
rently serving sentences in BOP facilities or serving terms of
supervised release. At the time of his conviction, Petitioner
Moon had a past conviction for robbery, but he received no
criminal history points under the Sentencing Guidelines
because the conviction was more than 15 years old.
1
Although two of the three petitioners are currently serving terms of
supervised release, “relief may still be available in the form of modifica-
tion, amendment, or termination of their supervised release.” Arrington v.
Daniels, 516 F.3d 1106, 1111 n.4 (9th Cir. 2008) (citing 18 U.S.C.
§ 3583(e)(2)); see also Paulsen v. Daniels, 413 F.3d 999, 1005 n.3 (9th
Cir. 2005). Here, because the petitioners completed RDAP while in prison,
a decision invalidating the regulation rendering them ineligible for early
release in exchange for completing RDAP could provide a basis to shorten
their terms of supervised release.
12064 PECK v. THOMAS
In 1990, Congress directed the BOP to create programs to
treat substance abuse among inmates. See 18 U.S.C.
§ 3621(b). To encourage participation in this program, Con-
gress subsequently determined that inmates who successfully
complete the program would be eligible for up to one year of
early release from prison—as long as the inmate had been
convicted of a “nonviolent offense.” Id. § 3621(e)(2)(B).

Under the authority delegated by this statute, the BOP has
implemented a regulation that categorically excludes certain
classes of inmates from eligibility for § 3621(e)’s early
release incentive. See 28 C.F.R. § 550.55(b). Petitioners chal-
lenge two aspects of this regulation: first, the exclusion of
inmates convicted of “[a]n offense that involved the . . . pos-
session . . . of a firearm,” id. § 550.55(b)(5)(ii); and second,
the exclusion of inmates who have a prior conviction for
homicide, forcible rape, robbery, aggravated assault, arson,
kidnapping, or child sexual abuse, regardless of the age of that
conviction, id. § 550.55(b)(4).

The history of the BOP’s attempts to implement these cate-
gorical exclusions is lengthy but relevant. Initially, the regula-
tion defined the term “nonviolent offense” in § 3621(e) with
reference to the statutory definition of “crime of violence”
found in 18 U.S.C. § 924(c)(3). See 28 C.F.R. § 550.58
(1995). We invalidated that regulation, holding that the inclu-
sion of a § 922(g) possession charge is not a reasonable inter-
pretation of the term “crime of violence” in § 924(c)(3). Davis
v. Crabtree, 109 F.3d 566, 569 (9th Cir. 1997). This eventu-
ally created a circuit split.2
2
The Eighth, Tenth, and Eleventh Circuits agreed that the regulation
adopted an unreasonable definition of “crime of violence,” see Martin v.
Gerlinski, 133 F.3d 1076, 1079 (8th Cir. 1998); Fristoe v. Thompson, 144
F.3d 627, 631 (10th Cir. 1998); Byrd v. Hasty, 142 F.3d 1395, 1398 (11th
Cir. 1998), but the Fourth and Fifth Circuits held otherwise, see Pelissero
v. Thompson, 170 F.3d 442, 447 (4th Cir. 1999); Venegas v. Henman, 126
F.3d 760, 763 (5th Cir. 1997).
 PECK v. THOMAS 12065
To resolve this circuit split, the BOP dropped the reference
to § 924(c)(3) and instead asserted its discretionary authority
to determine eligibility for early release under § 3621(e). In
1997, the BOP published an interim rule, effective immedi-
ately, that categorically excluded from eligibility for early
release inmates with current convictions for felony offenses
“involv[ing] the carrying, possession, or use of a firearm.” 28
C.F.R § 550.58(a)(1)(vi) (1998). In addition, the regulation
continued to exclude prisoners with prior convictions for cer-
tain offenses. Id. § 550.58(a)(1)(iv).

We upheld the Bureau’s authority to so disqualify other-
wise statutorily eligible inmates. See Bowen v. Hood, 202
F.3d 1211, 1220 (9th Cir. 2000) (holding that the 1997 rule’s
exclusion based on firearms possession was a reasonable
exercise of discretion granted by the statute); Jacks v. Crab-
tree, 114 F.3d 983, 986 (9th Cir. 1997) (holding that the 1995
rule’s exclusion of inmates with prior convictions for certain
offenses was entitled to deference and was reasonable). The
Supreme Court later agreed, holding that “the agency’s inter-
pretation is reasonable both in taking account of preconviction
conduct and in making categorical exclusions.” Lopez v.
Davis, 531 U.S. 230, 242 (2001). The Court explained that
“the Bureau need not blind itself to preconviction conduct that
the agency reasonably views as jeopardizing life and limb. By
denying eligibility to violent offenders, the statute manifests
congressional concern for preconviction behavior—and for
the very conduct leading to conviction.” Id. The Court also
found that “[t]he Bureau reasonably concluded that an
inmate’s prior involvement with firearms, in connection with
the commission of a felony, suggests his readiness to resort to
life-endangering violence and therefore appropriately deter-
mines the early release decision.” Id. at 244.

The Lopez Court declined to reach the question of whether
the BOP had complied with the notice-and-comment provi-
sions of the APA in promulgating the 1997 rule. Id. at 244
n.6. We took up this question in Paulsen v. Daniels, holding
12066 PECK v. THOMAS
that the BOP had violated the APA by “implement[ing] a rule
first, and then seek[ing] comment later.” 413 F.3d 999, 1005
(9th Cir. 2005). We invalidated the 1997 interim rule,
declined to reinstate the 1995 version because it was also
invalid, and noted that the law currently in effect was a final
rule that had been promulgated in 2000. Id. at 1008.

The 2000 rule finalized the 1997 interim rule without
change. Id. at 1003; see 28 C.F.R. § 550.58 (2001). Once
again, we invalidated the BOP’s efforts. In Arrington v. Dan-
iels, we held that the 2000 rule, insofar as it categorically
excluded inmates convicted of firearm-possession offenses,
was arbitrary and capricious under § 706(2)(A) of the APA
because the agency failed to give a reasoned basis for its
action. 516 F.3d 1106, 1113-14 (9th Cir. 2008). In Arrington,
we found that the administrative record did not contain the
rationale advanced by the agency during litigation, id. at
1113, and concluded that the BOP had “failed to set forth a
rationale for its decision to categorically exclude prisoners
convicted of offenses involving the carrying, possession, or
use of firearms from eligibility for a sentence reduction under
§ 3621(e),” id. at 1114.

Following Arrington, we invalidated the exclusion based on
prior convictions in Crickon v. Thomas, 579 F.3d 978 (9th
Cir. 2009). Crickon noted that “[o]ur recent ruling in Arring-
ton squarely controls the outcome of the present case,” id. at
983, and once again criticized the BOP for enacting a regula-
tion without articulating a supporting rationale, id. at 984-85.

Not to be deterred, the BOP responded to Arrington and
Crickon by enacting identical provisions in a 2009 rule. See
28 C.F.R. § 550.55. It is this rule that Petitioners here
challenge—specifically, the exclusions set forth in 28 C.F.R.
§ 550.55(b)(5)(ii) and § 550.55(b)(4). At the outset, we note
that every other circuit court to consider the issue has held
either the current or prior version of this regulation to be valid
under the APA. See Licon v. Ledezma, 638 F.3d 1303, 1311
 PECK v. THOMAS 12067
(10th Cir. 2011); Giannini v. Fed. Bureau of Prisons, 405 F.
App’x 96, 97 (8th Cir. 2010); Stevenson v. FCI Waseca, 383
F. App’x 587, 588 (8th Cir. 2010); Handley v. Chapman, 587
F.3d 273, 282 (5th Cir. 2009); Gardner v. Grandolsky, 585
F.3d 786, 791-92 (3d Cir. 2009); Gatewood v. Outlaw, 560
F.3d 843, 848-49 (8th Cir. 2009).

The district court issued three separate opinions, each find-
ing that the BOP’s regulation is valid under APA § 706. Peti-
tioners timely appealed. Petitioners argue that: (1) the
articulated rationale is once again insufficient to justify the
rule; (2) a heightened APA standard should apply to rules that
involve the loss of liberty; (3) the legal error in the accomp-
anying Program Statement infects the regulation and renders
it invalid; (4) the BOP was required to reach a decision on the
basis of available statistics rather than merely invoking its
experience; and (5) the BOP’s interpretation conflicts with
Congress’ expressed intent. In response, the BOP argues that
it has cured the defects identified in Arrington and Crickon,
and that the public safety rationale justifies the regulation.3

II. DISCUSSION

A. The BOP Satisfied § 706 of the APA by Articulating a
Public Safety Rationale.

[1] Section 706 of the APA grants authority to a reviewing
court to “hold unlawful and set aside agency action, findings,
and conclusions found to be . . . arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A). “The scope of review under the ‘arbitrary
and capricious’ standard is narrow and a court is not to substi-
tute its judgment for that of the agency.” Motor Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). Agency action is presumed to be valid and must be
3
We review a district court’s dismissal of a petition for writ of habeas
corpus de novo. Bowen, 202 F.3d at 1218.
12068 PECK v. THOMAS
upheld if a reasonable basis exists for the agency decision.
Sacora v. Thomas, 628 F.3d 1059, 1068 (9th Cir. 2010) (cit-
ing Crickon, 579 F.3d at 982). “A reasonable basis exists
where the agency considered the relevant factors and articu-
lated a rational connection between the facts found and the
choices made.” Arrington, 516 F.3d at 1112 (internal quota-
tion marks omitted).

The district court correctly found that, in enacting the cate-
gorical exclusions at issue in this case, the agency offered a
public safety rationale in the administrative record. The BOP
argues that this cures the procedural defects identified by the
Arrington and Crickon courts. Petitioners argue that, while it
is true that we previously invalidated the regulation for the
failure to offer any contemporaneous rationale, it is not true
that the present regulation’s rationale cured that procedural
defect. We uphold the regulation.

1. The Bureau Did Not Violate the APA in Enacting 28
C.F.R. § 550.55(b)(5)(ii).

When enacting the 2009 regulation, the Bureau stated:

The Director of the Bureau exercises discretion to
deny early release eligibility to inmates who have a
felony conviction for the offenses listed in
§ 550.55(b)(5)(i)-(iv) because commission of such
offenses illustrates a readiness to endanger the pub-
lic. Denial of early release to all inmates convicted
of these offenses rationally reflects the view that, in
committing such offenses, these inmates displayed a
readiness to endanger another’s life.

The Director of the Bureau, in his discretion,
chooses to preclude from early release consideration
inmates convicted of offenses involving carrying,
possession or use of a firearm and offenses that pres-
ent a serious risk of physical force against person or
 PECK v. THOMAS 12069
property, as described in § 550.55(b)(5)(ii) and (iii).
Further, in the correctional experience of the Bureau,
the offense conduct of both armed offenders and cer-
tain recidivists suggests that they pose a particular
risk to the public. There is a significant potential for
violence from criminals who carry, possess or use
firearms.

Drug Abuse Treatment Program: Subpart Revision and Clari-
fication and Eligibility of D.C. Code Felony Offenders for
Early Release Consideration, 74 Fed. Reg. 1892, 1895
(Bureau of Prisons Jan. 14, 2009).

[2] The defect identified in Arrington—a failure to articu-
late any supporting rationale in the administrative record, 516
F.3d at 1113—has been cured here. The Bureau clearly stated
that, “in the correctional experience of the Bureau, the offense
conduct of both armed offenders and certain recidivists sug-
gests that they pose a particular risk to the public.” 74 Fed.
Reg. at 1895. The Bureau further explained that it was exer-
cising its discretion because “[t]here is a significant potential
for violence from criminals who carry, possess or use fire-
arms” and that “in committing such offenses, these inmates
displayed a readiness to endanger another’s life.” Id.
Although the Bureau could have proffered a fuller explana-
tion, the APA does not demand more.

2. The Bureau did not violate the APA in enacting 28
C.F.R. § 550.55(b)(4).

With regard to the exclusion based on prior convictions in
§ 550.55(b)(4), the BOP explained:

In exercising the Director’s statutory discretion,
we considered the crimes of homicide, forcible rape,
robbery, aggravated assault, arson, and kidnaping, as
identified in the FBI’s Uniform Crime Reporting
Program (UCR), which is a collective effort of city,
12070 PECK v. THOMAS
county, state, tribal, and federal law enforcement
agencies to present a nationwide view on crime. The
definitions of these terms were developed for the
National Incident-Based Reporting System and are
identified in the UCR due to their inherently violent
nature and particular dangerousness to the public.

The Director of the Bureau exercises discretion to
deny early release eligibility to inmates who have a
prior felony or misdemeanor conviction for these
offenses because commission of such offenses ratio-
nally reflects the view that such inmates displayed
readiness to endanger the public.

74 Fed. Reg. at 1894.

[3] We had previously criticized this portion of the BOP’s
regulation because, “[b]eyond explaining that it decided upon
the four identified categories of convictions because of the
variation in violence level that may be found in state convic-
tions, the BOP provided no explanation for its decision to
look to prior convictions as the appropriate basis to determine
categorical exclusions.” Crickon, 579 F.3d at 984 (citation
omitted). This time, the BOP has explained, minimally, that
“commission of such offenses [homicide, forcible rape, rob-
bery, aggravated assault, arson, and kidnaping] rationally
reflects the view that such inmates displayed readiness to
endanger the public.” 74 Fed. Reg. at 1894. As we and the
Supreme Court have found, this reasoning is permissible and
based on common sense. Lopez, 531 U.S. at 242; Jacks, 114
F.3d at 985-86. Now that the agency has explicitly relied on
such reasoning in the administrative record, we see no reason
to overturn the regulation. Nor does the lack of a temporal
restriction on prior convictions invalidate the regulation:
implicit in the Bureau’s reasoning is the determination that a
prior conviction for any of these offenses, no matter its age,
“rationally reflects the view that such inmates displayed readi-
ness to endanger the public.” 74 Fed. Reg. at 1894.
 PECK v. THOMAS 12071
Petitioners argue that this rationale is insufficient because
it relies on erroneous facts. The BOP stated that it chose the
particular crimes “as identified in the FBI’s Uniform Crime
Reporting Program (UCR).” Id. The Bureau then explained
that “[t]he definitions of these terms were developed for the
National Incident-Based Reporting System and are identified
in the UCR due to their inherently violent nature and particu-
lar dangerousness to the public.” Id. Petitioners point out,
however, that the crimes were actually identified in the UCR
because they are “serious crimes, they occur with regularity
in all areas of the country, and they are likely to be reported
to the police.” Fed. Bureau of Investigation, Uniform Crime
Report, Crime in the United States, 2009, at 1 (Sept. 2010),
http://www2.fbi.gov/ucr/cius2009/documents/09offensede
finitions.pdf.

The Petitioners’ argument misses the mark. First, it is not
clear that “seriousness” is a significantly different measure
from “violent nature” and “dangerousness.” The agency is
entitled to rely on an existing index of serious crimes to iden-
tify crimes that are dangerous. Second, the BOP never states
that it chose these crimes because they were listed in the UCR
as dangerous and violent. Instead, it states that: (1) these
crimes are listed in the UCR as dangerous and violent, and (2)
the commission of these crimes “rationally reflects the view
that such inmates displayed readiness to endanger the public.”
74 Fed. Reg. at 1894. Because the agency is entitled to reach
the latter determination, the regulation is valid under the
APA.

B. This Case Does Not Call for Application of a Heightened
APA Standard, If Any Exists.

[4] Petitioners argue that “[t]his case calls for more scrupu-
lous application of the State Farm standard in light of” the
fact that it “involves human freedom,” whereas “[t]he State
Farm standard for application of § 706 of the APA evolved
through cases involving standard areas of administrative regu-
12072 PECK v. THOMAS
lation, such as auto safety, pollution control, and financial
transactions.”

Petitioners cite no case that has ever adopted this proposi-
tion. Furthermore, even if “loss of liberty” were to be
reviewed under a hypothetically heightened standard, such a
standard would not be applicable to this case. An inmate has
no liberty interest in a sentence reduction in exchange for
completion of RDAP. McLean v. Crabtree, 173 F.3d 1176,
1184-85 (9th Cir. 1999) (“[D]enial merely means that the
inmate will have to serve out his sentence as expected.” (quot-
ing Jacks, 114 F.3d at 986 n.4)). If there is no liberty interest
in the reduction, then a denial of eligibility for that reduction
cannot affect an inmate’s liberty interest.

Petitioners also argue that the BOP’s “history of violating
the APA” should be taken into account when applying the
State Farm standard. But the BOP’s unsuccessful attempts to
enact the regulation at issue do not demonstrate willful non-
compliance with statutory mandates, and no court has ever
found this to be the case. We uphold the regulation under the
usual APA standard. See 5 U.S.C. § 706(2)(A); State Farm,
463 U.S. at 42-43.

C. The Legal Error in the Accompanying Program State-
ment Does Not Render the Regulation Invalid.

[5] Petitioners note that in the Program Statement accom-
panying the 2009 rule, the BOP continued to define a felon-
in-possession crime under 18 U.S.C. § 922(g) as a crime of
violence. See Program Statement No. 5162.05, at 3-4 (Bureau
of Prisons Mar. 16, 2009), available at www.bop.gov/policy/
progstat/5162_005.pdf. This is in conflict with our pro-
nouncement to the contrary in Davis, 109 F.3d at 569. How-
ever, Petitioners point to nothing in the administrative record
indicating that the BOP relied on its categorization of
§ 922(g) as a “crime of violence” when reaching its decision
to adopt § 550.55(b)(5)(ii). Instead, Petitioners shift the bur-
 PECK v. THOMAS 12073
den to the agency to affirmatively demonstrate that it has not
relied on this legal error in enacting § 550.55(b)(5)(ii), by
arguing that “the BOP failed to establish that the legal error
did not taint the exercise of discretion in the parallel program
statement.” It does not make sense to require an agency to
state all of the reasons for which it did not reach a decision,
and Petitioners have not directed us to any authority support-
ing the proposition that this burden is on the agency. Because
Petitioners have not identified any evidence in the record
showing that in promulgating § 550.55(b)(5)(ii) the BOP
relied on the proposition that a violation of § 922(g) is cate-
gorically a crime of violence under § 924(c)(3), they have not
shown that the regulation is infected by the legal error con-
tained in the program statement.

D. The BOP Was Not Required to Reach a Decision on the
Basis of Statistics or Other Empirical Evidence.

Petitioners argue that, in light of the “read[y] availab[ility]”
of relevant “empirical data or studies,” the BOP’s decision not
to collect and consider any of that evidence invalidates the
regulation. Petitioners contend that the regulation fails to
comply with the “clear road map” that “list[s] the missing
agency actions needed for compliance with the APA” which
we gave in Crickon.

In Crickon, we stated:

[T]he BOP gave no indication of the basis for its
decision. It did not reference pertinent research
studies, or case reviews. It did not describe the pro-
cess employed to craft the exclusion. It did not artic-
ulate any precursor findings upon which it relied. It
did not reveal the analysis used to reach the conclu-
sion that the categorical exclusion was appropriate.
Indeed, the administrative record is devoid of any
substantive discussion of the rationale underlying the
BOP’s exercise of its discretion.
12074 PECK v. THOMAS
579 F.3d at 985. The flaw in Petitioners’ reasoning is that
Crickon did not indicate that these actions are necessary for
an agency’s compliance with the APA; it merely listed several
actions which would have been sufficient for APA compli-
ance. Crickon does not support Petitioners’ argument that the
BOP was required to develop and rely on detailed statistics
before promulgating this rule.

In Sacora v. Thomas, we noted that “[t]he BOP . . . is enti-
tled to use its experience in interpreting and administering a
statute.” 628 F.3d at 1067. We held that, although “[i]t may
have been preferable for the BOP to support its conclusions
with empirical research,” “it was reasonable for the BOP to
rely on its experience, even without having quantified it in the
form of a study.” Id. at 1069. Petitioners distinguish
Sacora because the rule at issue in that case limited half-way
house placement to six months, and the agency did not have
“a large trove of untapped . . . data” concerning the proposed
change, whereas in this case, the BOP has many years of sta-
tistics based on its past efforts to categorically exclude certain
prisoners from the early release incentive. This distinction is
unpersuasive. Sacora made no mention of whether it would
have been feasible for the BOP to gather data related to half-
way house placement, and no indication that this consider-
ation was a factor in the decision. We follow Sacora and hold
that the BOP is entitled to invoke its experience as a justifica-
tion for the present rule.

E. The BOP’s Interpretation Does Not Conflict with
Congress’ Expressed Intent.

Petitioners argue that narrowing of the categories of statu-
torily eligible inmates is inconsistent with Congress’ intent to
“maximize the early release incentive and to reduce the prison
population.” Although it is true that our decision in Crickon
criticized the BOP for enacting a regulation that was “difficult
to square with Congress’s expressed intent to provide an
incentive to encourage maximum participation in the BOP’s
 PECK v. THOMAS 12075
substance abuse treatment programs,” 579 F.3d at 986, the
idea that the regulation should be struck down solely because
of perceived inconsistencies with congressional intent, as dis-
tinct from congressional command, is in tension with the
Supreme Court’s ruling in Lopez. See 531 U.S. at 242 (“[A]ll
we must decide is whether the Bureau, the agency empowered
to administer the early release program, has filled the statu-
tory gap in a way that is reasonable in light of the legislature’s
revealed design. We think the agency’s interpretation is rea-
sonable both in taking account of preconviction conduct and
in making categorical exclusions.” (citations omitted) (inter-
nal quotation marks omitted)).

Furthermore, the administrative record reflects the fact that
the Bureau has had some difficulty in accommodating all of
the inmates who wish to participate in RDAP:

Currently, the Bureau has over 7000 inmates wait-
ing for residential treatment that is provided with
limited Bureau resources. Also, inmates are selected
for admission based on their proximity to release.
Unfortunately, these two factors result in some
inmates being on the waiting list for a long time.

....

Because the early release is such a powerful
incentive, as evidenced by over 7000 inmates wait-
ing to enter treatment, the Bureau must take appro-
priate measures to ensure that inmates requesting
treatment actually have a substance abuse problem
that can be verified with documentation.

74 Fed. Reg. at 1893. It would be unreasonable to criticize the
Bureau for failing to maximize inmate participation when the
Bureau is already struggling with its limited resources to
accommodate all of the inmates who currently do wish to par-
12076 PECK v. THOMAS
ticipate. It is clear to us that the agency is entitled to take a
categorical approach to solving this problem.

III. CONCLUSION

We join our sister circuits in holding that the Bureau has
not violated the APA in excluding inmates from consideration
for early release who have a current conviction for felon in
possession or a past conviction for homicide, forcible rape,
robbery, aggravated assault, arson, kidnapping, or child sex-
ual abuse.

AFFIRMED.