Opinion
Civil Action No. 98-2693 (JBS)
March 23, 1999.
Robert Treglia, Fort Dix, New Jersey, Petitioner Pro Se.
Faith S. Hochberg, United States Attorney, By: Dorothy J. Donnelly Assistant United States Attorney, Trenton, N.J., Attorney for Respondent.
OPINION
This matter is before the court on pro se petitioner Robert Treglia's petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Treglia, who on August 28, 1998 successfully completed the 500 hour Residential Drug Abuse Program ("RDAP") operated by the federal Bureau of Prisons ("BOP"), alleges that the BOP has improperly denied him eligibility for a sentence reduction under 18 U.S.C. § 3621(e)(2)(B), which provides that prisoners "convicted of a nonviolent offense" shall be eligible for a sentence reduction of up to one year upon completion of the RDAP. The court finds that the BOP has improperly based its decision to deny Treglia eligibility for a sentence reduction under § 3621(e)(2)(B) on facts other than those that form the basis for the elements of the offenses for which Treglia was convicted, in violation of the holding of the U.S. Court of Appeals in Roussos v. Menifee, 122 F.3d 159 (3d Cir. 1997), and that Treglia has established his threshold eligibility for a sentence reduction under § 3621(e)(2)(B). Accordingly, the court remands this matter to the BOP for consideration of whether Treglia, as a person eligible for a sentence reduction under § 3621(e)(2)(b), should actually be granted a sentence reduction, and for further proceedings consistent with this Opinion and the accompanying Order.
BACKGROUND
Treglia is presently incarcerated at FCI Fort Dix serving a sentence of 110 months imprisonment, to be followed by five years supervised release, imposed by the U.S. District Court for the District of Connecticut on January 21, 1993, upon his conviction for distribution and possession with intent to distribute cocaine and conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 846. Treglia's sentence was enhanced under U.S.S.G. 2D1.1 because a loaded .25 caliber semi-automatic pistol was found in his car at the time of his arrest. Treglia's projected release date is December 31, 1999.
On October 5, 1995, the BOP determined that Treglia was qualified to participate in the RDAP, and he signed an agreement to participate in the RDAP on that date, although he did not actually enroll until October 31, 1997. Treglia signed a second agreement to participate in the RDAP on November 13, 1997.
On several occasions, however, the BOP informed Treglia that although he qualified to participate in the RDAP, he was not eligible for early release under § 3621(e)(2)(b). On July 16, 1997, the BOP advised Treglia that it did not appear that he was eligible for early release because his "instant offense is violent." (Wills Decl., Ex. I.) On November 7, 1997, the BOP again informed Treglia that he was not eligible for early release because his offense was a "[c]rime listed in the Director's Discretion as contained in the Categorization of Offenses Program Statement." (Wills Decl., Ex. J.) On November 12, 1997, the BOP again advised Treglia that he was not eligible for early release because his offense was a "[c]rime listed under the Director's Discretion as contained in the Categorization of Offenses Program Statement." (Wills Decl., Ex. K.)
Treglia filed an administrative appeal on December 3, 1997. Treglia argued that the BOP's consideration of sentencing enhancements to deny eligibility for early release was beyond the authority granted to the BOP by Congress. On December 23, 1997, the respondent denied Treglia's request for administrative relief, noting that Treglia was not eligible for early release under § 3621(e)(2)(B) because his "offense is listed in Program Statement 6162.04, Categorization of Offenses, dated October 7, 1997, as one that `in the Director's discretion shall preclude an inmate's receiving certain Bureau program benefits" including early release under § 3621(e)(2)(B). (Wills Decl., Ex. L.)
Treglia appealed to the Regional Director on January 8, 1998. On February 4, 1998, the Regional Director remanded the matter to FCI Fort Dix for reconsideration in light of the decision by the U.S. Court of Appeals for the Third Circuit in Roussos v. Menifee, 122 F.3d 159 (3d Cir. 1997). The Regional Director also advised Treglia of his right to appeal to the General Counsel of the BOP within 30 days if he was "dissatisfied with this response." (Wills Decl., Ex. M.)
On March 5, 1998, having received no ruling on reconsideration by the authorities at FCI Fort Dix, Treglia appealed the Regional Director's decision to the National Appeals Administrator. On March 25, 1998, the National Appeals Administrator declined to address the merits of Treglia's appeal, noting that it was still under review on reconsideration by the authorities at FCI Fort Dix. (Wills Decl., Ex. N.) On March 10, 1998, the authorities at FCI Fort Dix advised Treglia of their determination that he remained ineligible for early release "based on having an instant offense which precludes early release based on the Discretion of the Director of the Bureau of Prisons as outlined in the Categorization of Offenses program statement." (Wills Decl., Ex. O.) Treglia filed the instant petition for writ of habeas corpus under 28 U.S.C. § 2241 on June 10, 1998.
DISCUSSION
A. Exhaustion of Administrative Remedies
As a threshold matter, the court must address respondent's argument that Treglia has not exhausted available administrative remedies. Applicable BOP regulations provide for a three-level administrative process: (1) filing a complaint or grievance with institution staff; (2) appeal to the Regional Director if dissatisfied with the result at the institution level; and (3) appeal to the National Appeals Administrator in the Central Office of the BOP if dissatisfied with the result at the Regional Director level. See 28 C.F.R. § 542.10. This three-step exhaustion of administrative remedies generally is a prerequisite to filing suit and failure to exhaust may result in dismissal. See Moscato v. Federal Bureau of Prisons, 98 F.3d 757 (3d Cir. 1996).
In the present case, Treglia prosecuted his appeal up the administrative ladder to the National Appeals Administrator, which declined to reach the merits of his appeal because the authorities at FCI Fort Dix were still in the process of reconsidering their initial determination that Treglia was ineligible for early release on remand from the Regional Director. Respondent maintains that Treglia should have started the administrative appeals process over again once the authorities at FCI Fort Dix issued their determination on reconsideration on March 10, 1998, instead of filing the instant petition for writ of habeas corpus. Technically, respondent may be correct, but this court will not dismiss Treglia's petition for failure to exhaust administrative remedies under the circumstances of this case.
It is well-settled that failure to exhaust administrative remedies may be excused where exhaustion "would be futile, if the actions of the agency clearly and unambiguously violate statutory or constitutional rights, of if the administrative procedure is clearly shown to be inadequate to prevent irreparable harm." Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988); see also Dougherty v. Crabtree, 812 F. Supp. 1089 (D.Or. 1991), aff'd, 981 F.2d 1258 (9th Cir. 1992) (district court has discretion to decide whether to excuse failure to exhaust administrative remedies and reach merits or require petitioner to perfect exhaustion before proceeding in court). Here, Treglia is scheduled to be released from imprisonment in approximately nine months, he has already taken this issue to the National Appeals Administrator, which declined to address the merits, and the BOP has consistently interpreted the applicable Program Statement as denying Treglia's eligibility for early release. Under these circumstances this court finds that requiring Treglia to exhaust administrative remedies would be futile. Therefore, the court will excuse the asserted failure to exhaust and address the merits of Treglia's petition.
B. Treglia's Eligibility for a Sentence Reduction Under 18 U.S.C. § 3621(e)(2)(B)
In Roussos v. Menifee, 122 F.3d 159 (3d Cir. 1997), the Third Circuit held that the BOP cannot rely upon a sentencing enhancement under U.S.S.G. § 2D1.1 for possession of a firearm during a drug trafficking offense to deny a prisoner "convicted of a nonviolent offense" (i.e., conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846) eligibility for a sentence reduction under 18 U.S.C. § 3621(e)(2)(B). The court found that BOP Program Statement 5162.02 (as amended April 26, 1996), which provided that a conviction under 21 U.S.C. § 841 or 846 should be considered a crime of violence if the sentencing court increased the base level of the sentence for possession of a dangerous weapon during commission of the offense, was "in conflict with both 18 U.S.C. § 3621(e)(2)(B) [which refers to prisoners "convicted of a nonviolent offense"] and 28 C.F.R. § 550.58 [a BOP regulation that defined "nonviolent offense" by reference to the term "crime of violence" as used in 18 U.S.C. § 924(c)(3)]." Id. at 163. Noting that "the precise issue at hand is the proper construction of the statute," id., the court pronounced that in determining eligibility for sentence reductions under § 3621(e)(2)(B), "the statute makes clear that it is impermissible to consider facts other than those that form the basis for the elements of the offense for which the prisoner was convicted." Id. at 162.
In response to the Third Circuit's decision in Roussos and similar decisions in other circuits, the BOP amended 28 C.F.R. § 550.58 and adopted Program Statement 5162.04 (October 9, 1997). The amended regulation provides as follows:
See , e.g . , Downey v. Crabtree , 100 F.3d 662 (9th Cir. 1996).
An inmate who was sentenced to a term of imprisonment pursuant to the provisions of 18 U.S.C. Chapter 227, Subchapter D for a nonviolent offense, and who is determined to have a substance abuse problem, and successfully completes a residential drug abuse treatment program during his or her current commitment may be eligible, in accordance with paragraph (a) of this section, for early release by a period not to exceed 12 months.
(a) Additional early release criteria.
(1) As an exercise of the discretion vested in the Director of the Federal Bureau of Prisons, the following categories of inmates are not eligible for early release:
(I) INS detainees;
(ii) Pretrial inmates;
(iii) Contractual boarders (for example, D.C., State or military inmates);
(iv) Inmates who have a prior felony or misdemeanor conviction for homicide, forcible rape, robbery, or aggravated assault, or child sexual abuse offenses;
(v) Inmates who are not eligible for participation in a community-based program as determined by the Warden on the basis of his or her professional discretion;
(vi) Inmates whose current offense is a felony:
(A) That has as an element, the actual, attempted, or threatened use of physical force against the person or property of another, or
(B) That involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device), or
(C) That by its nature or conduct, presents a serious potential risk of physical force against the person or property of another, or
(D) That by its nature or conduct involves sexual abuse offenses committed upon children.28 C.F.R. § 550.58.
Similarly, Section 7 of the new program statement identifies "OFFENSES THAT AT THE DIRECTOR'S DISCRETION SHALL PRECLUDE AN INMATE'S RECEIVING CERTAIN BUREAU PROGRAM BENEFITS" including "early release pursuant to 18 U.S.C. § 3621(e)." BOP Program Statement 5162.04 (October 9, 1997). More specifically, Section 7b of the new program statement identifies certain "Criminal Offenses with a Specific Offense Characteristic Enhancement," including 21 U.S.C. § 841 and 846, conviction of which would preclude eligibility for early release under § 3621(e) if the inmate's sentence was enhanced by the sentencing court due to the use or threatened use of force. Id.
According to respondent, the amended regulation and the new program statement cure the defect identified by the Third Circuit in Roussos:
Faced with this precedent [i.e., Roussos] the Bureau has taken two actions. It has revised 28 C.F.R. § 550.58 and it has published a new program statement to guide the prison staff which makes the first determination of eligibility for early release. The new regulation continues to disqualify those persons convicted of violent offenses. But it also creates a new category as a basis for denying early release. This new category utilizes the absolute discretion vested in the Director to disqualify other persons. These persons did not commit violent offenses, but the Director has determined that their release will not foster the goals of the program. For example, persons with detainers are ineligible. [Citation omitted]
Within this discretionary category, the director has also determined to exclude persons whose conduct during the commission of a crime showed the potential for violence. In the program statement, the Director indicates that the prison staff person making the determination about the character of the conduct may look to the sentence enhancement factors to see whether there was enhancement for gun possession or use. By utilizing two separate categories, the Director has remedied the problem identified by the Roussos Court. Within the first category, i.e., for those persons convicted of a violent offense, the staff does not consider sentence enhancements; only if the person has been convicted of a nonviolent offense will the Director authorize an exercise of discretion to determine whether the conduct of the crime had the potential risk of physical force. In this instance, sentence enhancements may be considered. In this way enhancements are not being used to define the "conviction;" instead, the enhancements offer guidance in evaluating the conduct and its risk of physical force.
Respondent's Answer at 14-15.
The court does not agree that the amendment of 28 C.F.R. § 550.48 and the adoption of Program Statement 5162.04 remedy the problem identified by the Roussos court. As noted above, the Roussos court held that in determining eligibility for a sentence reduction under § 3621(e)(2)(B), "the statute makes clear that it is impermissible to consider facts other than those that form the basis for the elements of the offense for which the prisoner was convicted." Roussos, 122 F.3d at 162 (emphasis added). Under the amended version of 28 C.F.R. § 550.58 and Program Statement 5162.04, the BOP continues to do precisely what theRoussos court held it could not do — consider facts other than those that form the basis for the elements of the offense for which the prisoner was convicted in determining categorical eligibility for a sentence reduction under § 3621(e)(2)(B). Indeed, the BOP has denied Treglia's eligibility for a sentence reduction under § 3621(e)(2)(B) for exactly the same reason it denied eligibility for a sentence reduction to Roussos — a sentence enhancement under U.S.S.G. 2D1.1 for possession of a firearm during a drug trafficking offense. The BOP's consideration of that sentencing enhancement as the basis for "transmogrifying" a non-violent offense into a violent one on a categorical basis was the precise statutory mischief that the Roussos court rejected.
The Roussos court noted:
By ignoring the offense of conviction and looking only to sentencing factors, the BOP has attempted to transmogrify a "nonviolent offense" into a "crime of violence." In other words, the BOP converted a nonviolent crime into a violent one by means of a Program Statement that is inconsistent with the language of the statute , and its own regulations. More specifically, under the rationale of Downey , we find the BOP's interpretation of a nonviolent offense in the Program Statement to be in conflict with both 18 U.S.C. § 3621(e)(2)(B) and 28 C.F.R. § 550.58 and therefore erroneous.Id . at 162 (emphasis added). Because the Roussos court took such pains to emphasize that the BOP's categorization conflicted with the statute itself, and the statute has not been amended, it remains clear that the BOP cannot use regulations to redefine a "nonviolent offense" of conviction under § 3621(e)(2)(B) in a manner that excludes prisoners convicted of certain nonviolent offenses from further consideration for a sentence reduction at the threshold.
This court reiterates the Third Circuit's holding in Roussos: In determining a prisoner's eligibility for a sentence reduction under § 3621(e)(2)(B), the BOP may not consider sentencing enhancements or any other fact other than those that form the basis of the elements of the offense for which a prisoner was convicted. That is not to say, however, that the BOP must grant a sentence reduction to every prisoner who is statutorily eligible for one, or that the BOP may not consider sentencing enhancements or any other factors it deems relevant in deciding which statutorily eligible prisoners should actually have their sentences reduced upon completion of the RDAP. "Commission of a `nonviolent offense' makes a prisoner eligible for consideration but does not require the Bureau to grant the boon he seeks. Eligibility is not entitlement." Bush v. Pitzer, 133 F.3d 455, 457 (7th Cir. 1997) (emphasis added). In providing that the sentence of a prisoner convicted of a nonviolent offense who successfully completes the RDAP "may be reduced by the Bureau of Prisons" by up to one year, 18 U.S.C. § 3621(e)(2)(B), Congress vested the BOP with absolute discretion to determine which eligible prisoners should be released early. The BOP "is entitled to use any rational, non-invidious criteria when deciding which of the statutorily `eligible' prisoners receive reductions." Bush, 133 F.3d at 458. Under Roussos, the BOP may not rule out such threshold "eligibility" bases upon a sentencing enhancement that negates the statutory eligibility of prisoners "convicted of a nonviolent offense" for consideration of a sentence reduction under § 3621(e)(2)(B). The BOP has erred in its determination that Treglia is not eligible for a sentence reduction under § 3621(e)(2)B), despite his conviction of a nonviolent offense and his completion of the RDAP.
Having found that the BOP has erroneously applied § 3621(e)(2)(B) in this case, the court recognizes that this determination does not actually result in Treglia's release. It remains for the BOP to exercise its informed discretion in deciding the remaining issue of whether Treglia should actually be released — a determination the BOP has never made because it erroneously foreclosed Treglia from eligibility for early release. The BOP certainly has the discretion to look at characteristics of the offender in making the ultimate determination of whether his time in custody should be reduced, but it may not rely upon the fact that the sentencing court enhanced his sentence under U.S.S.G. § 2D1.1 as the sole basis for denying eligibility for release.
Because Treglia is not entitled to release from custody by virtue of this court's determination that the BOP erred in applying § 3621(e)(2)(B), his petition for writ of habeas corpus is denied. Treglia is, however, entitled to a proper and lawful BOP determination of whether he should be granted early release under that provision, and for this purpose this matter must be remanded to the BOP for further proceedings. The BOP should promptly determine whether Treglia should be granted a sentence reduction under § 3621(e)(2)(B), mindful that he is already three months into the final year of his sentence.
CONCLUSION
For the reasons discussed above, the court concludes that the BOP has improperly denied Treglia eligibility for a sentence reduction under § 3621(e)(2)(B) on the basis of his sentence enhancement for possession of a firearm during a drug trafficking offense, in violation of the Third Circuit's holding in Roussos. Treglia is statutorily eligible for early release. Accordingly, the court remands this matter to the BOP for consideration of whether Treglia, as a person eligible for a sentence reduction under § 3621(e)(2)(B), should actually be granted such a reduction, and for further proceedings consistent with this Opinion and the accompanying Order.
ORDER
THIS MATTER having come before the court on pro se petitioner Robert Treglia's petition for writ of habeas corpus, under 28 U.S.C. § 2241, and the court having considered the petition, respondent's answer thereto, and petitioner's traverse, and for the reasons set forth in the accompanying Opinion;
IT IS on this day of March, 1999, hereby ORDERED that the petition for writ of habeas corpus is DENIED without prejudice, to the extent release from custody is sought; and
IT IS FURTHER ORDERED that this matter is REMANDED to the federal Bureau of Prisons for consideration of whether Treglia, as a person eligible for a sentence reduction under 18 U.S.C. § 3621(e)(2)(B), should actually be granted such a reduction, and for further proceedings consistent with this Opinion and Order.