IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-50636
_____________________
DAVID WOTTLIN,
Petitioner-Appellant,
v.
LESTER E FLEMING, Warden,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
March 23, 1998
Before KING, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:
Petitioner-Appellant David Wottlin appeals the district
court’s dismissal of his 28 U.S.C. § 2241 habeas petition
challenging the Bureau of Prisons’ application of 28 C.F.R.
§ 550.58 to him and thereby rendering him ineligible for early
release following his successful completion of a drug-abuse
treatment program while in custody. We affirm the judgment of
the district court.
I. FACTUAL & PROCEDURAL BACKGROUND
In 1993, Petitioner-Appellant David Wottlin was convicted of
possession of methamphetamine with intent to distribute, and he
was sentenced to seventy months in prison. In April 1994,
Wottlin began a comprehensive drug-abuse treatment program (the
Program) at the Federal Correctional Institution in Bastrop,
Texas (FCI Bastrop). He asserts that before he entered the
Program, FCI Bastrop officials indicated that if he completed it
he would be eligible for early release pursuant to pending
legislation that they believed Congress would soon pass. Wottlin
admits, however, that subsection (e) of 18 U.S.C. § 3621, which
authorized discretionary early release for prisoners that have
completed a comprehensive drug-abuse treatment program, was not
added to the statute until after he entered the Program. See 18
U.S.C. § 3621(e).
Wottlin completed the Program in March 1995, and Bureau of
Prisons (BOP) officials thereafter denied his request for early
release, explaining that he was not eligible because a new BOP
regulation, enacted pursuant to § 3621(e), provided that an
inmate who has “a prior conviction for homicide, forcible rape,
robbery, or aggravated assault” was not eligible for early
release under § 3621(e). 28 C.F.R. § 550.58. Wottlin was
convicted of armed robbery in 1965.
Thereafter, Wottlin filed a § 2241 petition challenging the
BOP’s refusal to grant him early release. He contended that he
was entitled to be released one year early pursuant to
§ 3621(e)(2)(B) and that the BOP, by enacting 28 C.F.R. § 550.58,
which excluded him from eligibility for early release, had
violated his constitutional rights under the Equal Protection,
Due Process, and Ex Post Facto Clauses. He also argued that
2
§ 550.58 represented an erroneous administrative interpretation
of § 3621(e).
Without requiring Respondent-Appellee Warden Lester Fleming
to answer, a magistrate judge issued a report recommending that
Wottlin’s petition be dismissed, finding that the BOP had not
abused its discretion in promulgating regulations construing
§ 3621(e) to exclude inmates who had previously been convicted of
certain violent felonies from early-release eligibility. The
magistrate judge also concluded that Wottlin’s constitutional
challenges were meritless.
Wottlin thereafter filed objections to the magistrate
judge’s recommendation, but the district court adopted the
recommendation and dismissed Wottlin’s petition. Wottlin timely
filed notice of appeal, and the magistrate judge granted him
permission to proceed in forma pauperis.1
II. DISCUSSION
Wottlin raises several issues on appeal. First, he argues
that the BOP’s interpretation of 18 U.S.C. § 3621(e)(2)(B), as
embodied in 28 C.F.R. § 550.58, is incorrect and an abuse of
discretion. Second, he raises three challenges to the
application of § 550.58 to him, claiming that it violates his
1
On September 8, 1997, Wottlin was released to the
Cornell Corrections Halfway House in Houston, Texas. For
purposes of habeas relief, Wottlin remains “in custody.” Cf. Ojo
v. INS, 103 F.3d 680, 681 (1997) (finding that a prisoner who is
within a term of supervised release remains in custody for
purposes of habeas relief). Wottlin seeks a one-year reduction
in his three-year term of supervised release.
3
rights to due process and equal protection, and that it violates
the Ex Post Facto Clause of the Constitution.
A. Promulgation of 28 C.F.R. § 550.58
Wottlin first argues that the BOP’s interpretation of 18
U.S.C. § 3621(e)(2), as embodied in 28 C.F.R. § 550.58, is an
abuse of discretion. He contends that in reviewing this issue
the district court improperly bypassed the first step of the
analysis required by the Supreme Court’s decision in Chevron
U.S.A., Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S.
837 (1984), because it failed to acknowledge that the plain
language of the statute made him eligible for early release. In
addition, he asserts that § 3621(e) did not permit the BOP to
apply its regulation to him retroactively and thereby revoke his
eligibility for early release. Finally, he argues that the
Administrative Procedure Act (APA), 5 U.S.C. § 551(4), (6), bars
the retroactive application of 28 C.F.R. § 550.58.
Wottlin’s argument relies on subsection (e) of § 3621, which
was enacted as part of the Violent Crime Control and Law
Enforcement Act of 1994, and which he claims entitles him to
early release:
(A) Generally.--Any prisoner who, in the judgment of
the Director of the [BOP], has successfully completed a
program of residential substance abuse treatment
provided under paragraph (1) of this subsection, shall
remain in the custody of the [BOP] under such
conditions as the [BOP] deems appropriate. . . .
(B) Period of Custody.--The period a prisoner convicted
of a nonviolent offense remains in custody after
successfully completing a treatment program may be
reduced by the [BOP], but such reduction may not be
4
more than one year from the term the prisoner must
otherwise serve.
18 U.S.C. § 3621(e)(2). Effective May 25, 1995, the BOP issued
regulations governing substance-abuse treatment programs which
state that an inmate
who completes a residential drug abuse treatment
program . . . during his or her current commitment may
be eligible . . . for early release by a period not to
exceed 12 months. The following categories of inmates
are not eligible: . . . inmates who have a prior
conviction for homicide, forcible rape, robbery, or
aggravated assault.
28 C.F.R. § 550.58.
We review regulations such as § 550.58 under the two-step
standard set out by the Supreme Court in Chevron: We look first
to the intent of Congress, and if it is clear, “that is the end
of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.”
Chevron, 467 U.S. at 842-43. If, however, we find that the
language of the statute is ambiguous or silent on a particular
issue, then we turn to the second step of our analysis and “the
question for the court is whether the agency’s answer is based on
a permissible construction of the statute.” Id. at 843. If the
agency’s interpretation is reasonable, the court will defer to
its legislative regulations unless they are “arbitrary,
capricious, or manifestly contrary to the statute.” Id. at 844.
Wottlin contends that the plain language of § 3621(e)(2)(B)
is unambiguous in that it makes inmates whose current convictions
are for nonviolent offenses eligible for sentence reductions. In
fact, the plain language of § 3621(e)(2)(B) states only that the
5
sentence of a prisoner convicted of a “nonviolent offense” who
has completed a drug-abuse treatment program “may be reduced by
the Bureau of Prisons.” 28 U.S.C. § 3621(e)(2)(B) (emphasis
added). Thus, § 3621(e)(2)(B) explicitly leaves sentence
reductions to the discretion of the BOP.
Wottlin next argues that the BOP must exercise its
discretion individually as to each and every inmate whose
sentence “may be reduced” under § 3621(e)(2)(B). This argument
ignores the possibility that Chevron permits the BOP to exercise
its discretion as to categories of inmates by eliminating them
from consideration in a properly-promulgated regulation such as
§ 550.58.
Although this case presents an issue of first impression in
this circuit, at least two other circuits have considered it and
have concluded that § 550.58 is a reasonable regulation. See
Stiver v. Meko, 130 F.3d 574 (3d Cir. 1997); Jacks v. Crabtree,
114 F.3d 983 (9th Cir. 1997), petition for cert. filed, 66
U.S.L.W. __ (U.S. Jan. 7, 1998) (No. 97-7393). In Jacks, the
Ninth Circuit reasoned that nothing in § 3621(e)(2)(B) requires
the BOP to limit eligibility criteria to only the current offense
of conviction. 114 F.3d at 984. In addition, the court noted
that the “may be reduced” language in § 3621(e)(2)(B) affords the
BOP “broad discretion” to grant or deny the reduction and that
§ 3621(e)(2)(A) states that a prisoner who completes a drug-abuse
treatment program “‘shall remain in the custody of the [BOP]
under such conditions as the [BOP] deems appropriate.’” Id.
6
(quoting 18 U.S.C. § 3621(e)(2)(A)). The court therefore
concluded that in promulgating § 550.58 the BOP simply “exercised
its discretion to promulgate a reasonable rule of general
applicability which is perfectly consistent with the statutory
scheme.” Id. at 986. Similarly, in Stiver, the Third Circuit
explained that
[t]he [BOP] in the exercise of its discretion in
administering the early release element of the
residential drug abuse treatment program, has imposed
an additional qualification: prisoners’ non-conviction
of certain enumerated past violent offenses, in
addition to the requirement that the present conviction
be for a non-violent offense. It was not attempting
to, and has not interpreted the phrase “convicted for a
violent offense” in a manner at odds with Congress’s
intended meaning . . . .
130 F.3d at 577.
We agree with the Ninth and Third Circuits’ analysis of this
issue, and we therefore find that the BOP did not abuse its
discretion in promulgating 28 C.F.R. § 550.58, thereby precluding
Wottlin from obtaining an early release pursuant to § 3621(e).
B. Constitutional Claims
Wottlin raises three constitutional claims, arguing that the
application of § 550.58 to him deprives him of his rights to due
process and equal protection and that it violates the Ex Post
Facto Clause. We address each of these claims in turn.
Wottlin first contends that BOP Program Statement 5330.10
contains “mandatory” language that grants him a due-process
liberty interest in early release. This claim lacks merit. “A
regulation may create a protected liberty interest if it uses
mandatory language to place a substantive limit on official
7
discretion.” United States v. Tubwell, 37 F.3d 175, 179 (5th
Cir. 1994) (citing Olim v. Wakinekona, 461 U.S. 238, 249 (1983)).
Although Wottlin does identify mandatory language in Program
Statement 5330.10, it relates to the procedures for implementing
the Program. Wottlin identifies no portions of Program Statement
5330.10 that mandate the granting of an early release to an
inmate who completes the Program. Moreover, § 550.58, which
governs eligibility for early release, expressly provides that
certain categories of inmates--including those, like Wottlin,
with previous robbery convictions--are not eligible. 28 C.F.R.
§ 550.58; cf. Jacks, 114 F.3d at 986 n.4 (rejecting a
petitioner’s similar claim that § 3621(e)(2)(B) creates a due
process liberty interest).
Wottlin next contends that § 550.58’s exclusion of him from
eligibility for early release violates his right to equal
protection because “he is being treated differently than other
similarly situated prisoners who have been granted sentence
reduction eligibility and consequently sentence reduction.”
Wottlin argues that § 550.58 should be subjected to strict
scrutiny because it denies him a fundamental right and because,
“[f]or purposes of sentence reduction eligibility, . . . [it]
create[s] two classes of persons.” This argument lacks merit.
Strict scrutiny is appropriate only where a government
classification implicates a suspect class or a fundamental right.
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440
(1985). A classification that categorizes inmates based on the
8
type of criminal offenses for which they have been convicted does
not implicate a suspect class. See Smallwood v. Johnson, 73 F.3d
1343, 1351 (5th Cir.), cert. denied, 117 S. Ct. 212 (1996). A
“fundamental right,” for purposes of equal protection analysis,
is one that is “among the rights and liberties protected by the
Constitution.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411
U.S. 1, 29 (1973). A convicted prisoner does not have a
constitutional right to be released before the expiration of a
valid sentence. Cf. Greenholz v. Inmates of the Neb. Penal &
Correctional Complex, 442 U.S. 1, 7 (1979). Thus, as strict
scrutiny is not appropriate, we review § 550.58 under the more
lenient “rational basis” standard, and we will uphold it if we
find that it is rationally related to a legitimate governmental
interest. Smallwood, 73 F.3d at 1351.
As the Ninth Circuit explained in addressing a similar
challenge to § 550.58’s use of a categorical rule, “By
promulgating a reasonable categorical rule, the [BOP] ensures
predictability and consistency in administration of the one-year
sentence reduction program. Were the [BOP] precluded from
issuing such rules to guide its discretion, petitioners would no
doubt complain about the [BOP’s] standardless decisionmaking.”
Jacks, 114 F.3d at 986; see also id. at 986 n.5 (noting that the
BOP explained § 550.58 by stating that, “‘[b]ecause state
convictions may show a considerable range in the degree of
violence used in the offense, the [BOP] has chosen to use . . .
categories of crimes, which are reported under the FBI Violent
9
Crime Index, as the sole determinant of violence in the criminal
history.’” (quoting Drug Abuse Treatment Programs: Early Release
Consideration, 60 Fed. Reg. 27,692 (May 25, 1995)) (first set of
brackets in original)). We think that the use of such categories
to create a uniform rule is rationally related to the legitimate
governmental interest of preventing the early release of
potentially violent inmates, and we therefore find that the
application of § 550.58 to Wottlin does not violate his right to
equal protection.
Lastly, Wottlin claims that the BOP’s application of
§ 550.58 to him violates the Ex Post Facto Clause of the
Constitution. He contends that § 550.58 is retroactive as
applied to him because, until the time that he completed the
Program, the BOP determined sentence reduction eligibility under
§ 3621(e) based on whether an inmate’s current sentence was the
result of a conviction for a crime of violence.
The Supreme Court has indicated that “the constitutional
prohibition on ex post facto laws applies only to penal statutes
which disadvantage the offender affected by them.” Collins v.
Youngblood, 497 U.S. 37, 41 (1990). More recently, the Court has
clarified the ex post facto inquiry, stating that
the focus of the ex post facto inquiry is not on
whether a legislative change produces some ambiguous
sort of “disadvantage,” nor . . . on whether an
amendment affects a prisoner’s “opportunity to take
advantage of provisions for early release,” but on
whether any such change alters the definition of
criminal conduct or increases the penalty by which a
crime is punishable.
10
California Dep’t of Corrections v. Morales, 514 U.S. 499, 506 n.3
(1995) (citation omitted).
Wottlin nevertheless contends that the Supreme Court’s
decision in Lynce v. Mathis, 117 S. Ct. 891 (1997), indicates
that application of § 550.58 to him would violate the Ex Post
Facto Clause. In Lynce, the Supreme Court determined that a 1992
Florida statute that canceled early-release credits for certain
classes of offenders after the credits had been awarded and after
the petitioner had been released from custody violated the Ex
Post Facto Clause. See id. at 898. The Court explained that the
statute “did more than simply remove a mechanism that created an
opportunity for early release for a class of prisoners whose
release was unlikely; rather it made ineligible for early release
a class of prisoners who were previously eligible--including
some, like [the] petitioner, who had actually been released.”
Id. Wottlin argues that, like the petitioner in Lynce, he was
made ineligible for early release where he was previously
eligible.
Pursuant to § 3621(e)(2)(B), Wottlin’s eligibility for the
early release program has always been subject to the discretion
of the BOP. See 18 U.S.C. § 3621(e)(2)(B) (“The period a
prisoner convicted of a nonviolent offense remains in custody
after successfully completing a treatment program may be reduced
by the [BOP] . . . .” (emphasis added)). Section 550.58 is
merely a categorical determination by the BOP that it will not
exercise that discretion in the case of inmates with a prior
11
conviction for certain specified crimes. Cf. Hallmark v.
Johnson, 118 F.3d 1073, 1079 (5th Cir.) (declining to extend
Lynce to invalidate a Texas directive removing a corrections
official’s discretion to restore good-time credits forfeited for
prison violations and noting that the fact that the official
previously had discretion as to whether to restore credit
constituted fair warning that forfeited credits might not be
restored at all), cert. denied sub nom., 118 S. Ct. 576 (1997).
In contrast, Lynce concerned a change in the applicable statute
making the petitioner ineligible for the good-time credits at
issue, causing the retroactive removal of the good-time credits
that the petitioner had already been awarded, and directing the
re-arrest of the petitioner subsequent to his early release. 117
S. Ct. at 898.
Although the question of whether the application of § 550.58
to a prisoner who underwent drug treatment prior to its
promulgation violates the Ex Post Facto Clause is a question of
first impression in this circuit, in Stiver the Third Circuit
determined that the application of § 550.58 to an inmate in
precisely the same situation presented in this case did not
violate the Ex Post Facto Clause. The court explained,
Stiver suffers no disadvantage as a result of the
regulation. His sentence began in 1992, before section
3621(e)(2)(B) was enacted. At that time he could not
have been eligible for a one-year sentence reduction
for completing a substance abuse program, because the
enabling statute did not yet exist. Today, under 28
C.F.R. § 550.58, he is still ineligible for sentence
reduction. The fact that he arguably was eligible for
early release during the period between the enactment
12
of section 3621(e)(2)(B) and the Bureau’s adoption of
28 C.F.R. § 550.58 is irrelevant.
Stiver, 130 F.3d at 578. We agree with the conclusion reached in
Stiver. Not only was Wottlin convicted prior to the addition of
subsection (e) to § 3621, but he also entered the Program
approximately five months prior to its enactment. Moreover,
although Wottlin may have been eligible to seek early release
during the interim between the enactment of § 3621(e) and the
promulgation of § 550.58, whether he was actually granted early
release was always left, by the terms of § 3621(e), to the broad
discretion of the BOP. See 18 U.S.C. § 3621(e)(2)(B). In
promulgating § 550.58, the BOP has exercised that discretion, and
the reasonable exercise of properly delegated discretion in this
manner did not constitute a violation of the Ex Post Facto
Clause.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
13