IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50117
MICHAEL A. WARREN,
Petitioner-Appellant,
versus
R.D. MILES, Warden of Federal Correction
Institute at Bastrop, Texas,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
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October 13, 2000
Before BARKSDALE and BENAVIDES, Circuit Judges, and VELA*,
District Judge.
BENAVIDES, Circuit Judge:
Michael A. Warren appeals the dismissal of his habeas corpus
petition filed in the district court for the Western District of
Texas pursuant to 28 U.S.C. § 2241(c)(3). Warren maintains that
the Federal Bureau of Prisons (BOP) violated the Constitution’s
prohibition of ex post facto legislation by applying its
regulations to him retroactively, thereby increasing the
punishment for his offense. He also argues that the BOP abused
its discretion under 28 U.S.C. § 3621(e) by promulgating
regulations that effectively render all prisoners who receive a
*
District Judge of the Southern District of Texas, sitting
by designation.
sentence enhancement for possession of a dangerous weapon
ineligible for early release following completion of a
residential Drug Abuse Program (DAP). Finally, Warren contends
that the district court violated his due process rights in
failing to make de novo findings of fact with respect to the
preliminary sentencing report that served as the foundation for
his sentence enhancement. We ultimately find no merit in
Warren’s arguments and, therefore, AFFIRM the ruling of the
district court.
FACTUAL AND PROCEDURAL BACKGROUND
In September 1995, Warren pled guilty to conspiracy to
distribute and distribution of cocaine base and heroin as defined
in 21 U.S.C. § 846; he was sentenced to 72 months of
imprisonment, followed by five years of supervised release. The
district court enhanced Warren’s sentence by two points pursuant
to section 2D1.1(b)(1) of the Sentencing Guidelines based on
information in Warren’s preliminary sentencing report that he had
access to a dangerous weapon during the course of the conspiracy.
In February 1996, Warren enrolled in a DAP with the approval
of officials at the federal prison in Bastrop. Section 3621(e)
allows prisoners convicted of “nonviolent” offenses who complete
a DAP to apply for sentence reductions of up to one year at the
discretion of the BOP director. See 18 U.S.C. § 3621(e)(2)(b).
On February 8, 1996, prison officials advised Warren that he was
ineligible for early release under section 3621 because of his
sentence enhancement. In that same month, Warren filed a motion
2
to vacate his sentence, specifically the enhancement, under 28
U.S.C. § 2255. The district court for the Northern District of
Texas denied that motion, adopting a magistrate judge’s finding
of sufficient evidence to support the two-point enhancement.
After successfully completing the DAP in December 1996,
Warren requested reconsideration for early release pursuant to
section 3621(e) of title 28. Because Warren’s sentence had been
enhanced for possession of a weapon, the BOP again determined
that he had committed a “crime of violence” and was thus
ineligible for early release under section 3621(e).
In March 1999, Warren filed this habeas corpus petition pro
se in the district court for the Western District of Texas.
After the Government replied to Warren’s petition, Warren moved
for summary judgment on the pleadings on August 19, 1999.1 On
January 14, 2000, the magistrate judge filed a Report and
Recommendation recommending that the district court deny Warren’s
petition. Warren objected to the report’s findings in a timely
manner. On January 23, 2000, the district court issued a Final
Judgment and Order adopting the magistrate’s report and denying
Warren’s petition for relief.
DISCUSSION
We have jurisdiction over this appeal pursuant to 28 U.S.C.
§ 1291. When reviewing the denial of a habeas corpus petition,
1
On November 11, 1999, Warren filed a motion with this
court seeking a writ of mandamus instructing the district court
to grant summary judgment. This court denied Warren’s motion
without prejudice, instructing him to re-file in 60 days if the
district court had not replied to his motion.
3
we review the district court’s determinations of law de novo and
its findings of fact for clear error. See Venegas v. Henman, 126
F.3d 760 (5th Cir. 1997), cert. denied, 523 U.S. 1108 (1998).
Since Warren claims the right to early release under section
3621(e), or at least consideration for such release, we begin
with a detailed review of that legislation and the BOP’s
regulations interpreting it.
Section 3621(e)(2)(B), effective September 13, 1994, allows
prisoners convicted of “nonviolent” offenses who complete a DAP
to apply for a sentence reduction of up to one year at the
discretion of the BOP director. See 18 U.S.C. § 3621(e)(2)(b).
The statute does not define a nonviolent offense. Effective May
25, 1995, the BOP promulgated regulation 550.58 that defined
“nonviolent offense” by identifying as not eligible for early
release those inmates whose current offense “is determined to be
a crime of violence as defined in 18 U.S.C. § 924(c)(3).”2 28
C.F.R. § 550.58 (1995). Also effective May 25, 1995, the BOP
issued Program Statement 5330.10 to outline the qualifications
for early release under section 3621(e) and regulation 550.58;
the language of the program statement essentially mirrors that in
the regulation. See U.S. Dept. of Justice, Bureau of Prisons
Program Statement No. 5330.10 (May 25, 1995).
2
Section 924(c)(3) defines a crime of violence as having
“as an element the use, attempted use, or threatened use of
physical force against the person or property of another,” or as
by its nature, involving “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)(2000).
4
In July 1995, the BOP released Program Statement 5162.02, to
elaborate the meaning of crime of violence in the context of
section 3621. That version of the Program Statement listed 21
U.S.C. § 846, Warren’s offense of conviction, as an offense that
could be considered a crime of violence if the facts surrounding
the offense demonstrate “substantial risk” that force could have
been used during its commission. See U.S. Dept. of Justice,
Bureau of Prisons Program Statement No. 5162.02 (July 24, 1995).
This was the regulatory framework in place in February 1996 when
the BOP first denied Warren consideration for early release under
section 3621(e).
On April 23, 1996, the BOP clarified its interpretation of
crime of violence in Change Notice CN-01 to Program Statement
5162.02. As an example of a prisoner ineligible for early
release because of the commission of a crime of violence, the
Change Notice described a defendant serving a sentence for drug
conspiracy (21 U.S.C. § 846) that had been enhanced for
possession of a firearm. See U.S. Dept of Justice, Change Notice
CN-01 to Program Statement 5162.02 (April 23, 1996). By May 17,
1996, the BOP had modified 28 C.F.R § 550.58, explaining that “as
an exercise of the discretion vested in the Director of the
Federal Bureau of Prisons,” several categories of prisoners would
not be considered for early release. See 28 C.F.R. § 550.58
(1996). The regulation then defined as one such category,
“inmates whose current offense is a felony . . . that involved
the carrying, possession, or use of a firearm or other dangerous
5
weapon.” Id. at (a)(1)(vi)(B). Though the BOP has made
additional clarifications to regulation 550.58 since May 1996,
those changes are not relevant to the present appeal.
I. Ex Post Facto Claim
Imposition of punishment more severe than that assigned when
a criminal act occurred is a violation of the Constitution’s
prohibitions on ex post facto laws. See U.S. CONST. art. I, §9,
cl. 3; Collins v. Youngblood, 497 U.S. 37, 42 (1990). In this
regard, the Supreme Court has recognized that legislative
modifications to early release provisions or parole standards may
violate the prohibition on ex post facto legislation if applied
retroactively. See, e.g., Lynce v. Mathis, 519 U.S. 433, 117
S.Ct. 891, 898, 137 L.Ed.2d 63 (1997)(finding violation of ex
post facto principles when statute made entire class of prisoners
ineligible for early release); Weaver v. Graham, 450 U.S. 24, 33-
35 (1981). Invoking these cases, Warren argues that the BOP
violated the ex post facto doctrine by retroactively applying its
regulations to deny him (and others subject to a sentence
enhancement for possession of a firearm) consideration for early
release under section 3621(e).
For an ex post facto violation to occur, two elements must
be present: (1) a law must be retrospective, that is, it must
apply to events occurring before its enactment, and (2) the new
law must create a sufficient risk of increasing the punishment
attached to the defendant’s crimes. See California Dept. of
Corrections v. Morales, 514 U.S. 499, 509, 115 S.Ct. 1597, 131
6
L.Ed.2d 588 (1995); Weaver, 450 U.S. at 29. In evaluating an
alleged violation of the ex post facto doctrine, the court must
rigorously analyze the level of risk that an inmate’s prison stay
will be longer because of a change in the law that applies
retroactively. See Garner v. Jones, 120 S.Ct. 1362, 1370 (2000);
see also Morales, 514 U.S. at 506-07 (“[T]he focus of the ex post
facto inquiry is not on whether a legislative change produces
some sort of ‘disadvantage’ . . . but on whether any such change
. . . increases the penalty by which a crime is punishable.”);
Lynce, 519 U.S. at 444 (ex post facto analysis should focus on
“the effect of the law on the inmate’s sentence”).
Warren’s complaints stem solely from administrative actions
of the BOP taken in accordance with the broad discretion that
Congress granted that agency in section 3621. Section 3621(e)
has not changed since Warren committed his offense in 1995; nor
has Congress passed any additional legislation that affects
Warren’s eligibility for early release under section 3621. This
court has previously suggested that the retroactive application
of BOP regulations reflecting the agency’s “reasonable exercise
of properly delegated discretion” does not violate the ex post
facto doctrine. See Wottlin v. Fleming, 136 F.3d 1032, 1037 (5th
Cir. 1998). Yet we need not rely on Wottlin today, for Warren
fails to specify an administrative regulatory change that placed
him at risk of increased punishment.
Initially, we point out that Warren does not identify a
single rule change or clarification that took place between the
7
time that he committed his offense in the summer/fall of 1995 and
the point at which the BOP first denied him consideration for
early release on February 8, 1996. Nevertheless, one response to
Warren’s administrative appeals did rely on the April 23, 1996
change notice to P.S. 5162.02 to justify Warren’s ineligibility.
Assuming that this modification applied to Warren retroactively,
and that a BOP Program Statement is a “law” subject to ex post
facto review,3 we hold that the April 23, 1996 change did not
place Warren at risk of increased punishment.
Indeed, the regulatory framework in effect from July 1995 to
April 1996 listed Warren’s offense - 21 U.S.C. § 846 - as
potentially ineligible for early release consideration under
section 3621(e) depending on the facts surrounding the commission
of the offense. See U.S. Dept. of Justice, Program Statement
5330.10 (May 25, 1995); U.S. Dept. of Justice, Program Statement
5162.02 (July 24, 1995). Change Notice-01 to P.S. 5162.02 merely
“clarified” the law in effect by listing as an example of inmates
ineligible for early release under section 3621(e) those inmates
serving sentences under 21 U.S.C. § 846 enhanced for possession
of a weapon. Although Warren’s case may not have been explicitly
excluded under the Program Statements in effect in the fall of
3
The Supreme Court has described the BOP’s Program
Statements as “internal agency guidelines” that, unlike BOP
regulations, are not subject to “the rigors of the Administrative
Procedure Act.” Reno v. Koray, 515 U.S. 50, 61 (1995). We state
no opinion as to whether such “internal agency guidelines,” at
least those passed by the BOP to guide the exercise of its
discretion under section 3621, are “laws” that can produce
sufficient risk of increased punishment to fail under ex post
facto review.
8
1995, the BOP could have refused to consider him for early
release in accordance with those guidelines. Merely clarifying
that cases like Warren’s should not be considered for early
release under section 3621 is not a “change” that places Warren
at risk of increased punishment. As a consequence, his claim
that the BOP violated the ex post facto clause in denying him
consideration for early release is not tenable.
II. Whether the BOP Abused Its Discretion to Declare Him
Ineligible for Early Release
Warren also argues that section 3621(e)(2)(B) mandates that
he receive early release, or at least consideration for early
release. Warren’s argument takes two forms. First, relying on
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984), Warren contends that the BOP abused its
discretion under section 3621 by categorically denying him early
release consideration after he completed the DAP program. Next,
Warren argues that the BOP abused its discretion by relying on a
sentence enhancement to determine that he had committed a crime
of violence and thus was ineligible for early release
consideration. Both of Warren’s arguments are controlled by
prior decisions of this court.
Chevron requires review of administrative regulations at two
levels. First, we examine congressional intent. If
congressional intent is not clear, we determine whether the
agency’s action is a permissible construction of the statute.
Chevron, 467 U.S. at 842-43. In Wottlin, this court reviewed the
BOP’s interpretation of section 3621(e)(2)(B) under the Chevron
9
standard, finding that Congress intended to leave sentence
reduction to the BOP’s discretion and that the BOP could
reasonably exclude whole categories of inmates from
consideration. See Wottlin, 136 F.3d at 1035. Also, we have
expressly recognized that section 3621(e)(2)(B) grants the BOP
broad discretion to exclude from early release consideration
prisoners serving sentences for drug conspiracy that were
enhanced for possession of a dangerous weapon during the course
of the conspiracy. See Venegas, 126 F.3d at 765 (exclusion of a
prisoner from early release consideration because of a sentence
enhancement for possession of a weapon “[w]as consistent with the
letter and spirit of [BOP]’s authority as derived from section
3621(e)”). The combination of Venegas and Wottlin forecloses
Warren’s arguments regarding the BOP’s discretionary power to
deny him consideration for early release under section 3621(e).4
4
Warren points to decisions from other circuits holding
that the BOP’s interpretation of section 3621 conflicts with
unambiguous language in the statute requiring “conviction” of a
violent crime, and thus constitutes an abuse of discretion. See,
e.g., Byrd v. Hasty, 142 F.3d 1395, 1398 (11th Cir. 1998); Downey
v. Crabtree, 100 F.3d 662, 668 (9th Cir. 1996). In evaluating
the BOP’s interpretation of “nonviolent” in section 3621, these
circuits ignore the fact that section 3621 grants the BOP
unfettered discretion to determine which “nonviolent” inmates it
will consider for early release. As we noted in Venegas, nothing
in section 3621 prevents the BOP from exercising that discretion
categorically, electing not to consider for early release any
prisoner whose sentence has been enhanced for possession of a
dangerous weapon. See Venegas, 126 F.3d 163-64. At any rate,
these contrary decisions on which Warren relies are not the law
in this circuit. It is well established that one panel of this
circuit may not overrule the prior decisions of another panel.
See, e.g., United States v. Taylor, 933 F.2d 307, 319 (5th Cir.
1991).
10
III. Warren’s Procedural Due Process Claims
Realizing that his present inability to receive early
release consideration flows from the sentence enhancement and the
preliminary sentencing report on which that enhancement was
based, Warren challenges the propriety of that report.
Initially, he asserts that the BOP abused its discretion in
relying on “false, inaccurate, and unreliable information.”
Warren also contends that the district court deprived him of
procedural due process by failing to make de novo findings on
specific issues during the habeas petition process. Neither
argument has merit.
To the extent that Warren challenges the reasonableness of
the BOP’s reliance on information contained in preliminary
sentencing reports to deny early release consideration, his claim
is foreclosed by Venegas and our reasoning in the previous
paragraph. See Venegas, 126 F.3d at 765. To the extent that
Warren is challenging the factual correctness of the sentence
enhancement, he has chosen the wrong mechanism for collateral
attack. Section 2255 provides the primary means of collateral
attack of a federal sentence. See Cox v. Warden, Fed. Detention
Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). Section 2241, on the
other hand, is the proper habeas remedy for challenging the
execution of a sentence. See id.; United States v. Cleto, 956
F.2d 83, 84 (5th Cir. 1992). Warren’s section 2255 motion to
vacate sentence has been heard and denied; he is not entitled to
relitigate that issue under the heading of section 2241. See
11
Solsona v. Warden, F.C.I., 821 F.2d 1129, 1132 (5th Cir. 1987);
United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980); Lane
v. Hanberry, 601 F.2d 805, 806 (5th Cir. 1979).
Warren also argues that the district court should have
reviewed the entire record de novo and made findings of fact
independent of those made by the magistrate in his report. He
contends that this failure deprived him of procedural due
process.5 Because Warren objected to the findings of the
magistrate judge’s report in a timely fashion, the district court
was required to perform a de novo review of the petition. See
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert.
denied, 492 U.S. 918, 109 S.Ct. 3243, 106 L.Ed.2d 590 (1989).
The district court specified in its final judgment that it had
reviewed the entire record. Absent evidence to the contrary,
this court is compelled to believe that the district court
performed this duty. See Lara v. Johnson, 141 F.3d 239, 242 (5th
Cir. 1998); Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir.
1993). Warren seems to suggest that the absence of new factual
findings is evidence that a de novo review was not conducted.
Yet, this court has held that new findings of fact are not
necessary to demonstrate that de novo review took place. See
Koetting, 995 F.2d at 40.
5
Warren also argues that the magistrate’s report was
untimely under 28 U.S.C. 636(b). This argument is frivolous.
Section 636 does not impose any deadlines for filing Reports and
Recommendations on habeas corpus petitions. Moreover, this court
has already reviewed the conduct of the magistrate when it
dismissed Warren’s application for a writ of mandamus without
prejudice.
12
CONCLUSION
Having reviewed Warren’s claims and found no basis for
overturning the BOP’s decision to deny him consideration for
early release under section 3621(e), we AFFIRM the decision of
the district court.
13