REVISED, June 5, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-10941
_____________________
TALFORD H ROYAL,
Petitioner-Appellant,
v.
JOHN TOMBONE, Warden, Federal Correctional Institution
Seagoville, Texas,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
June 3, 1998
Before KING, SMITH, and STEWART, Circuit Judges.
PER CURIAM:
Petitioner-appellant Talford H. Royal appeals the district
court’s dismissal of his 28 U.S.C. § 2241 habeas corpus petition
challenging the Bureau of Prisons’ determination that he was not
eligible for a sentence reduction following his successful
completion of a drug-abuse treatment program while in custody.
We affirm.
I. FACTUAL & PROCEDURAL BACKGROUND
On April 18, 1994, petitioner-appellant Talford H. Royal
robbed a Bank One branch in Dallas, Texas. Royal subsequently
pled guilty to bank robbery in violation of 18 U.S.C. § 2113(a),
and the district court sentenced him to sixty-three months of
imprisonment.
On September 6, 1994, Royal enrolled in a residential drug-
abuse treatment program at the federal correctional institute in
El Reno, Oklahoma (FCI El Reno). He successfully completed the
program, and he claims that the Bureau of Prisons (BOP) granted
him a one-year sentence reduction pursuant to 18 U.S.C.
§ 3621(e). Thereafter, the BOP issued Change Notice CN-01 to
Program Statement 5162.02, which classified bank robbery as a
“crime of violence,” thereby making Royal ineligible for a
sentence reduction under § 3621(e). Royal contends that the BOP
then revoked the sentence reduction that it had already granted
to him.
Royal filed a petition for habeas corpus relief pursuant to
28 U.S.C. § 2241, contending that the revocation of his one-year
sentence reduction based on the newly-issued Change Notice CN-01
amounted to a violation of his constitutional rights under the
Due Process and Ex Post Facto Clauses. In addition, Royal
claimed that Program Statement 5162.02, as modified by Change
Notice CN-01, was invalid because it was not promulgated in
accordance with the Administrative Procedure Act (APA), 5 U.S.C.
§ 552, and, alternatively, that even if it was valid, it should
not have been applied to him retroactively. The government
answered and conceded that Royal had exhausted his administrative
remedies. Both parties thereafter agreed to a proceeding before
a magistrate judge.
2
The magistrate judge noted that it was unclear from the
parties’ evidence whether the BOP had ever granted Royal a one-
year sentence reduction.1 Nevertheless, he concluded that Royal
had failed to show the deprivation of a liberty interest even if
it was assumed that he was granted a one-year reduction because
the granting of sentence reductions to eligible inmates pursuant
to § 3621(e) is left, by the terms of the statute, to the
discretion of the BOP. The magistrate judge also concluded that
Royal had failed to show that the BOP’s action amounted to a
breach of contract or an ex post facto violation. Accordingly,
the magistrate judge denied Royal’s § 2241 petition. Royal
timely filed a notice of appeal.
II. STANDARD OF REVIEW
In the context of a § 2241 petition, this court “reviews the
district court’s determinations of law de novo and its findings
of facts for clear error.” Venegas v. Henman, 126 F.3d 760, 761
(5th Cir. 1997).
III. DISCUSSION
Royal contends that Change Notice CN-01 is invalid because
it was not promulgated pursuant to the rules of the APA.2 He
1
Royal submitted to the court a computer print-out dated
January 25, 1996 that stated, “The inmate is projected for
release: 11-13-1997 VIA 3621E CMPL.” The government submitted a
similar print-out dated February 12, 1997 that indicated that
Royal’s projected release date was November 13, 1998. The
magistrate judge noted that there was “at least some indication
that the [BOP] considered a one-year sentence reduction” for
Royal’s participation in the treatment program.
2
Although the magistrate judge did not address this
issue in his Memorandum Opinion, Royal included it in his
3
further argues that even if it is valid, the BOP’s grant and
subsequent revocation of a one-year sentence reduction violated
his constitutional rights as guaranteed by the Ex Post Facto and
Due Process Clauses,3 that it constituted a breach of contract,
and that Program Statement 5162.02, as modified by Change Notice
CN-01,4 should not be applied to him retroactively. The
government responds that Royal’s rights were not violated because
at all times the decision of whether or not to grant an early
release was left to the discretion of the BOP. After providing a
brief explanation of the statutes and regulations at issue, we
address each of Royal’s arguments in turn.
Subsection (e)(2) of § 3621, which was enacted as part of
the Violent Crime Control and Law Enforcement Act of 1994,
states:
original petition and has therefore preserved the claim for
review.
3
In addition, Royal’s summary section and issue headings
contain conclusory claims that the BOP’s action in denying him a
sentence reduction violated his rights under the Equal Protection
Clause. However, this issue is not discussed in the body of his
brief, and Royal did not argue it before the magistrate judge; we
therefore consider the issue waived and decline to address it.
See United States v. Valdiosera-Godinez, 932 F.2d 1093, 1099 (5th
Cir. 1991).
4
Royal’s argument actually discusses only the
application of Program Statement 5162.02 to him. However, it was
the application of Program Statement 5162.02, as modified by
Change Notice CN-01, that resulted in the BOP’s determination
that he was ineligible for the sentence reduction. As we
construe the submissions of pro se litigants broadly in deference
to their status, we read Royal’s arguments to include an attack
on the application of Program Statement 5162.02, as modified by
Change Notice CN-01, to him. See Maleng v. Cook, 490 U.S. 488,
493 (1989); Pleasant v. Texas, 134 F.3d 1256, 1258 (5th Cir.
1998).
4
(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
more than one year from the term the prisoner must
otherwise serve.
18 U.S.C. § 3621(e)(2) (emphasis added).
Effective May 25, 1995, the BOP published regulations
governing substance abuse treatment 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 whose current offense
is determined to be a crime of violence as defined in
18 U.S.C. 924(c)(3), inmates who have a prior
conviction for homicide, forcible rape, robbery, or
aggravated assault, . . . .
28 C.F.R. § 550.58. On July 24, 1995, the BOP issued Program
Statement 5162.02, which classified bank robbery as an offense
that, depending on the “specific offense characteristic
assigned,” might fall within the definition of “crime of
violence” and thereby render an inmate ineligible for a sentence
reduction under § 3621(e). FEDERAL BUREAU OF PRISONS, U.S. DEP’T OF
JUSTICE, PROGRAM STATEMENT NO. 5162.02, Definition of Term, “Crimes of
Violence” § 9 (July 24, 1995) [hereinafter PROGRAM STATEMENT
5162.02]. On April 23, 1996, the BOP altered Program Statement
5162.02 by issuing Change Notice CN-01, which stated that bank
robbery should always be considered a “crime of violence.”
5
FEDERAL BUREAU OF PRISONS, U.S. DEP’T OF JUSTICE, PROGRAM STATEMENT NO.
5162.02, CHANGE NOTICE NO. CN-01, Definition of Term, “Crimes of
Violence” § 11 (Apr. 23, 1996) [hereinafter CHANGE NOTICE CN-01].
A. Program Statement 5162.02 & Change Notice CN-01
Royal first argues that Program Statement 5162.02, as
modified by Change Notice CN-01, is invalid because Change Notice
CN-01 was not promulgated in accordance with the APA.
Regulations promulgated in accordance with the APA are entitled
to a significant amount of deference from a reviewing court. See
Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467
U.S. 837, 843-44 (1984).
Less formally produced regulations such as Program Notice
5162.02 and Change Notice CN-01 are internal agency guidelines
and are therefore “akin to . . . ‘interpretive rule[s]’ that
‘do[] not require notice and comment.’” Reno v. Koray, 515 U.S.
50, 61 (1995) (quoting Shalala v. Guernsey Mem. Hosp., 514 U.S.
87, 99 (1995)). As such, they are promulgated internally and may
be altered at will by the BOP, Jacks v. Crabtree, 114 F.3d 983,
985 n.1 (9th Cir. 1997), cert. denied, 118 S. Ct. 1196 (1998),
and they therefore are entitled to less deference than APA
regulations. However, the Supreme Court has indicated that
Program Statements are “still entitled to some deference” and
will be upheld if they constitute a “‘permissible construction of
the statute’” that they interpret. Reno, 515 U.S. at 61 (quoting
Chevron, 467 U.S. at 843). Thus, we must consider whether
Program Statement 5162.02, as modified by Change Notice CN-01, is
6
a permissible interpretation of 18 U.S.C. § 924(c)(3), the
statute it addresses.
Section 924(c)(3) defines a “crime of violence” in the
following manner:
(3) For purposes of this subsection the term
“crime of violence” means an offense that is a felony
and--
(A) has as an element the use, attempted use,
or threatened use of physical force against the
person or property of another, or
(B) that by its nature, involves a
substantial risk that physical force against the
person or property of another may be used in the
course of committing the offense.
18 U.S.C. § 924(c)(3).
The United States Code defines the crime of bank robbery as
follows:
(a) Whoever, by force and violence, or by
intimidation, takes, or attempts to take, from the
person or presence of another, or obtains or attempts
to obtain by extortion any property or money or any
other thing of value belonging to, or in the care,
custody, control, management, or possession of, any
bank, credit union, or any savings and loan
association; . . .
. . .
Shall be fined under this title or imprisoned not
more than twenty years, or both.
18 U.S.C. § 2113(a).
Program Statement 5162.02, as modified by Change Notice CN-
01, states:
With regard to the specific crime of bank robbery, the
offense should be considered a crime of violence
pursuant to section 924(c)(3) since, due to the
circumstances surrounding bank robberies, the offense
involves an explicit or implicit threat of force and
7
thus has as an element the “threatened use of physical
force against the person or property of another.”
CHANGE NOTICE CN-01, supra, § 11. Based on our reading of
§ 924(c)(3) and § 2113(a), we conclude that Program Statement
5162.02, as modified by Change Notice CN-01, constitutes a
permissible interpretation of § 924(c)(3).
B. Substantive Claims
Royal next contends that Program Statement 5162.02, as
modified by Change Notice CN-01, should not be applied to him
retroactively. He relies on the Ninth Circuit’s recent decision
in Cort v. Crabtree, 113 F.3d 1081 (9th Cir. 1997). In Cort, the
petitioners had, like Royal, been convicted of bank robbery and
had completed the BOP’s drug treatment program. Id. at 1082-83.
Prior to the issuance of Change Notice CN-01, the BOP informed
the petitioners that they were eligible for sentence reductions
pursuant to § 3621(e). Id. After the BOP modified Program
Statement 5162.02 through the issuance of Change Notice CN-01,
however, it informed the petitioners that they were ineligible
for a sentence reduction. Id. at 1083.
The Cort petitioners filed habeas corpus petitions pursuant
to 28 U.S.C. § 2241, challenging the retroactive application of
Program Statement 5162.02, as modified by Change Notice CN-01, to
them after the BOP previously had determined that they were
eligible for sentence reductions. Id. The government, while
refusing to argue that the BOP exceeded its authority in adopting
the initial version of Program Statement 5162.02, contended that
8
bank robbery is necessarily a crime of violence under the law of
the Ninth Circuit. Id. at 1085-86. The government therefore
argued that,
because the [BOP’s] initial interpretation of
“nonviolent offenses” as including certain instances of
unarmed bank robbery constituted an error of law, the
[BOP] may now disregard the eligibility determinations
that it rendered pursuant to that interpretation, and
may view the subsequent revocation of appellants’
eligibility determinations on the basis of its new
interpretation as the mere correction of a mistake.
Id.
The court agreed that circuit precedent interpreting the
Sentencing Guidelines indicated that bank robbery could not
constitute a “nonviolent offense,” but it nevertheless held that
the BOP’s new definition of a “crime of violence” contained in
Program Statement 5162.02, as modified by Change Notice CN-01,
applies only to prisoners who had neither entered the
substance abuse treatment program nor received
favorable eligibility determinations as of the date of
its issuance. Accordingly, the [BOP] remains bound by
its initial determination that appellants are
statutorily eligible for sentence reduction under 18
U.S.C. § 3621(e)(2)(B), and it must now decide, within
its discretion, whether to grant the reduction.
Id. at 1086-87.
We disagree with the Ninth Circuit’s resolution of this
issue. In order for Royal to prevail on a claim that Program
Statement 5162.02, as modified by Change Notice CN-01, was
erroneously used retroactively to render him ineligible for a
sentence reduction, Royal must show that he was legitimately
eligible for a sentence reduction prior to the issuance of Change
Notice CN-01. Assuming that Royal presented evidence sufficient
9
to show that the BOP granted him a sentence reduction pursuant to
the original version of Program Statement 5162.02, we must
consider whether that version’s interpretation of § 924(c)(3) is
a permissible one.
Prior to Change Notice CN-01’s alteration of its terms,
Program Statement 5162.02 stated that bank robbery was a crime
that “may or may not have involved the use, attempted use, or
threat of force, or presented the substantial risk that force
might be used against the person or property of another.” See
PROGRAM STATEMENT 5162.02, supra, § 9. However, by definition, the
crime of bank robbery includes as a necessary element the use of
“force and violence” or “intimidation.” 18 U.S.C. § 2113(a).
Royal does not dispute that he pled guilty to and was convicted
of bank robbery pursuant to § 2113(a).5 Under § 924(c)(3), a
“crime of violence” is one that “has as an element the use,
attempted use, or threatened use of physical force against the
5
Royal’s Presentence Investigation Report includes the
following description of his offense conduct:
Royal . . . handed the [bank] teller a note which read,
“This is a hold up. Put all big bills in the bag and
you will not get hurt.” The teller looked at Royal
after reading the note and heard him say, “This is not
a joke. This is for real.” Royal also said, “Don’t
make any sudden moves,” and then motioned for the
teller to get the money. Royal then placed a bag on
the teller counter, again advising the teller not to
make any sudden moves and leaned onto the counter.
Royal kept his right hand down near his waistband,
leading the teller to believe that he had a weapon.
However, no weapon was ever observed. The teller then
placed money from her teller drawer into the bag, which
Royal took from her, along with the robbery demand note
and walked out of Bank One.
10
person or property of another.” 18 U.S.C. § 924(c)(3)(A). Thus,
according to § 924(c)(3)’s definition, which was referenced by
the BOP’s own published regulation, 28 C.F.R. § 550.58,6 Royal is
currently incarcerated for a “crime of violence” and therefore
is, and has always been, ineligible for a sentence reduction
pursuant to § 3621(e).7 For the foregoing reasons, we conclude
that Program Statement 5162.02’s original statement that an
inmate convicted of bank robbery might be eligible for a sentence
reduction pursuant to the provisions of § 3621(e) conflicted with
6
Section 3621 (e)(2)(B) states that “the period a
prisoner convicted of a nonviolent offense remains in custody
after successfully completing a treatment program may be reduced
by the [BOP].” 18 U.S.C. § 3621(e)(2)(B) (emphasis added).
Thus, § 3621(e) expressly leaves sentence reductions for inmates
convicted of nonviolent offenses to the discretion of the BOP.
Chevron, 467 U.S. at 843-44 (“If Congress has explicitly left a
gap for the agency to fill, there is an express delegation of
authority to the agency to elucidate a specific provision of the
statute by regulation. Such legislative regulations are given
controlling weight unless they are arbitrary, capricious, or
manifestly contrary to the statute.”). In accordance with this
delegation, in order to clarify which prisoners’ sentences it
would consider reducing, the BOP promulgated 28 C.F.R. § 550.58.
Section 550.58 indicates that inmates “whose current offense is
determined to be a crime of violence as defined in 18 U.S.C.
§ 924(c)(3)” are not eligible for sentence reduction pursuant to
§ 3621(e). 28 C.F.R. § 550.58. In Wottlin v. Fleming, 136 F.3d
1032, 1036 (5th Cir. 1998), we held that § 550.58 was a
reasonable interpretation of § 3621(e).
7
Our interpretation of the statutes and the regulation
at issue is bolstered by the fact that § 550.58 explicitly states
that “inmates who have a prior conviction for homicide, forcible
rape, robbery, or aggravated assault” are not eligible for
sentence reduction under § 3621(e). 28 C.F.R. § 550.58 (emphasis
added). It defies logic to create a rule that an inmate with a
prior conviction for robbery can never be eligible for sentence
reduction but an inmate serving a current conviction for bank
robbery may be eligible.
11
§ 924(c)(3) and therefore was erroneous as a matter of law.8 As
any determination by the BOP that Royal was eligible for a
sentence reduction was erroneous, his actual status has not been
retroactively changed by the application of Program Statement
5162.02, as modified by Change Notice CN-01, to him.9
Royal next argues that the BOP’s application of Program
Statement 5162.02, as modified by Change Notice CN-01, to him
violated the Constitution’s prohibition against ex post facto
laws because it had the effect of increasing his sentence by one
year. We disagree.
The Supreme Court has held that “two critical elements must
be present for a criminal or penal law to be ex post facto: it
must be retrospective, that is, it must apply to events occurring
before its enactment, and it must disadvantage the offender
affected by it.” Weaver v. Graham, 450 U.S. 24, 29 (1981)
(footnotes omitted).
We note that a critical element of an ex post facto
violation is an absence of forewarning, that is, that
8
Our decision in this case makes no comment on the
validity of any other portion of Program Statement 5162.02’s
original version or of its current version (as modified by Change
Notice CN-01). We simply hold that Program Statement 5162.02’s
original classification of bank robbery convictions under 18
U.S.C. § 2113(a) was incorrect but that its amended
classification of the same crime is a permissible interpretation
of § 924(c)(3). Thus, our decision is not in conflict with our
previous holding in Venegas. 126 F.3d at 762 n.1, 765 (holding
that Program Statement 5162.02’s classification of violations of
18 U.S.C. § 922(g) and 21 U.S.C. § 841(a)(1) as violent offenses
was not erroneous as a matter of law).
9
Royal does not challenge the application of § 550.58 to
him, and in any event such a claim is foreclosed by circuit
precedent. See Wottlin, 136 F.3d at 1036.
12
the change is unexpected. As the Supreme Court has
explained, “critical to relief under the ex post facto
Clause is not an individual’s right to less punishment,
but the lack of fair notice and governmental restraint
when the legislature increases punishment beyond that
[which] was perceived when the crime was consummated.”
Hallmark v. Johnson, 118 F.3d 1073, 1079 (5th Cir.) (quoting
Weaver, 450 U.S. at 30), cert. denied sub nom., 118 S. Ct. 576
(1997). Thus, a court considering whether a law is ex post facto
“is concerned solely with whether a statute assigns more
disadvantageous criminal or penal consequences to an act than did
the law in place when the act occurred.” Weaver, 450 U.S. at 30
n.13 (emphasis added).
Royal committed the bank robbery for which he was convicted
on April 18, 1994. Subsection (e) of 18 U.S.C. § 3621, which
created the program giving the BOP the discretion to reduce the
sentences of eligible prisoners who complete a comprehensive drug
abuse treatment program, was not enacted until September 13,
1994, nearly five months after Royal committed his offense. As
there was no possibility of a reduction in Royal’s sentence on
this basis at the time he committed the offense, the fact that he
is not eligible for the reduction does not render Program
Statement 5162.02, as modified by Change Notice CN-01, “more
onerous than the law in effect on the date of the offense,” as is
required for an ex post facto violation. Id. at 30-31; see also
Wottlin, 136 F.3d at 1038. Thus, Program Statement 5162.02, as
modified by Change Notice CN-01, does not violate the Ex Post
Facto Clause.
13
Royal next argues that the BOP’s classification of him as
ineligible for a sentence reduction under § 3621(e) violated his
rights under the Due Process Clause. As we have concluded that
Royal was not among the class of inmates (i.e., those not
convicted of “crimes of violence”) who were eligible for sentence
reduction, Royal’s due process claim necessarily fails because he
never had a legitimate liberty interest in the one-year sentence
reduction that he now seeks.
Finally, Royal contends that the BOP’s determination that he
was not eligible for a sentence reduction amounted to a breach of
contract. Assuming arguendo that this amounts to a claim that
Royal is being held in custody in violation of the laws or
Constitution of the United States as contemplated by 28 U.S.C.
§ 2241, which is doubtful, this argument lacks merit. As the
magistrate judge explained, Royal has offered no documents
establishing a contractual relationship between himself and the
BOP. Moreover, Royal attached to his habeas corpus petition a
document signed by Warden Tombone which states, “A review of the
DAPS Program Agreement form10 reveals that staff did not sign an
agreement with you that you would receive a sentence reduction of
one year for completion of the program.” As Royal has failed to
10
The DAPS Program Agreement form, which is also part of
the record in this case, makes no mention of a guarantee of a
sentence reduction. Rather, it is focused on informing the
participant of the rules and regulations of the drug-treatment
program and on obtaining the participant’s consent for the
disclosure of information about his treatment to other agencies
for the purpose of developing a comprehensive drug-treatment
plan.
14
demonstrate that any contractual relationship existed, his breach
of contract claim fails.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
15