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SANTOS v. BEELER

March 9, 1999

EDWIN SANTOS, PETITIONER,
v.
ART BEELER, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Orlofsky, District Judge.

OPINION

Petitioner, Edwin Santos ("Santos"), filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241,*fn1 alleging that Respondent, Arthur Beeler, on behalf of the Federal Bureau of Prisons (the "BOP"), has impermissibly refused to consider him for a sentence reduction as authorized by 18 U.S.C. § 3621 (e)(2)(B),*fn2 which permits the Bureau of Prisons "to grant a sentence reduction of up to one year to prisoners convicted of `nonviolent offenses' who complete a substance abuse treatment program." Cort v. Crabtree, 113 F.3d 1081, 1082 (9th Cir. 1997). This case presents an issue of first impression in this Circuit, namely, whether an administrative agency can apply a change to a rule or regulation retrospectively on an individual who has acted in reliance upon the prior version of the rule or regulation, without violating the presumption against retroactivity as set forth by the Supreme Court in Bowen v. Georgetown University Hospital, 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988), and Landgraf v. USI Film Products, 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). For the reasons that follow, I conclude that the retroactive application of the revised regulation to Santos in the circumstances of this case contravenes the presumption against retroactivity.

Petitions filed under § 2241 "are rarely granted," Felker v. Turpiri, 518 U.S. 651, 665, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (quoting Supreme Court Rule 20.4(a)), however, in this case, I find that this is one of those rare instances in which I must grant a writ of habeas corpus under § 2241. Specifically, I find that the BOP's application of its revised definition of "crime of violence" in this case constitutes an impermissible retroactive application of an administrative regulation. Accordingly, I find that Santos is entitled to be considered for a one-year sentence reduction under § 3621(e)(2)(B) and, therefore, I will grant his petition for a writ of habeas corpus. I also find, however, that the BOP did not act arbitrarily, capriciously, in abuse of its discretion, or otherwise contrary to law in determining that violations of 18 U.S.C. § 922 (b)(5)*fn3 and (d)(1),*fn4 two of the statutes under which Santos was convicted, are crimes of violence.

I. FACTUAL AND PROCEDURAL BACKGROUND

The material facts are undisputed. On March 1, 1994, Santos was sentenced to a total of 60 months for several convictions relating to the sale of a firearm to a convicted felon. See Petition for Writ of Habeas Corpus under 28 [U.S.C.] § 2241 ("Petition"), filed Mar. 13, 1998, ¶ I; Respondent's Answer to Petition for Writ of Habeas Corpus ("Answer"), filed May 8, 1998, at 7. Throughout the relevant time period, February of 1996 to January of 1998, Santos served this sentence at FCI Fort Dix. See Petition ¶ I (c); Answer at 8. "Assuming that he receives all Good Conduct Time available to him under 18 U.S.C. § 3624 (b)," Answer at 7, Santos is scheduled to be released on March 25, 1999.*fn5 See id.; Petition ¶ I (d).

On February 21, 1996, while at Fort Dix, the BOP informed Santos that he was eligible under § 3621(e) to be considered for a one-year reduction in his sentence should he complete a substance abuse program. See Answer at 8, 10; Petition ¶ 11(a).*fn6 The BOP made this determination based on an administrative regulation, which, at that time, deemed the following categories of inmates to be ineligible for consideration for a possible sentence reduction:

28 C.F.R. § 550.58 (1995). The definition contained in 18 U.S.C. § 924 (c)(3) (1984), in turn, provided that a "crime of violence" is one:

  (A) [that] 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). Based on 28 C.F.R. § 550.58 and 18 U.S.C. § 924 (c)(3), the BOP determined that Santo's offenses, which involved the illegal sale of a firearm, were not crimes of violence and, therefore, Santos was eligible for a possible one-year reduction under § 3621(e). See Answer at 8.

At the time that the BOP made this determination, Santos was assigned to a section of Fort Dix that did not offer a residential drug treatment program as described in § 3621(e). See Petition ¶ II (b). As a result, Santos requested and received a transfer from Fort Dix East to Fort Dix West. See id.; see also id. at 8. On April 16, 1997, Santos "commenced the 500 hour Residential Drug Abuse Treatment Program," which he completed on January 13, 1998. Answer at 8; see also Petition ¶¶ II (d)-(f), (r).

Meanwhile, the BOP had issued "Change Notice CN-01" on April 23, 1996, which changed internal procedures for determining eligibility under § 3621(e). Change Notice CN-01 amended the definition of "crime of violence" contained in Program Statement 5162.02, by adding firearms violations to the list of violent crimes. See Answer at Ex. 1h (Change Notice CN-01). As a result of this change in internal policy, the BOP reevaluated Santos's eligibility for early release and, on November 5, 1996, the BOP determined that Santos was ineligible. See id. at 13 & Ex. if ("Inmate History Drug P[rograms]").

The BOP, however, did not inform Santos of this change until August 15, 1997. See Petition ¶ 11(g); see also id. at 9. This fact is undisputed, since Beeler does not allege that Santos received notice at an earlier time. Beeler merely states that the BOP changed its determination of Santos's eligibility on November 5, 1996, not that it gave Santos notice. See Answer at 13. Further, Beeler has submitted voluminous pages of exhibits in support of his Answer, none of which provide evidence that Santos received notice of this change at any time prior to September 11, 1997. See id., Ex. 1b ("Informal Resolution Form (BP-8)").

On July 17, 1997, months after the BOP issued Change Notice CN-01, the Third Circuit, in Roussos, concluded that a part of the process that the BOP used to determine whether a crime was violent "was inconsistent with the clear language of the statute." Roussos v. Menifee, 122 F.3d 159, 164 (3d Cir. 1997). Specifically, the Third Circuit held that "the BOP erred by considering sentencing factors (such as a firearms enhancement under the Guidelines) in lieu of the unambiguous statutory language which speaks only in terms of conviction." Id. at 162. Because of this decision, the BOP was forced to reconsider its policies in defining crimes of violence.

Despite the narrowness of the holding in Roussos, the BOP substantially altered 28 C.F.R. § 550.58, by adding a definition of "crime of violence" in place of the reference to 18 U.S.C. § 924 (c)(3). Adopted on October 15, 1997, after Santos had been in the ...


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