No.

11-35283 (Lead) 11-35296, 11-35355, 11-35489

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

LONNIE PECK, Petitioner-Appellant, v. J. E. THOMAS, Respondent-Appellee.

Appeal from the United States District Court for the District of Oregon Portland Division

OPENING BRIEF OF APPELLANT

Stephen R. Sady Chief Deputy Federal Public Defender 101 SW Main Street, Suite 1700 Portland, Oregon 97204 (503) 326-2123 Attorney for Petitioner-Appellant

TABLE OF CONTENTS Page Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of Issue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Nature of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Course of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Custody Status.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Statement of Reviewability and Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . 5 Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Statutory and Regulatory Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1. 2. 3. 4. 5. 1995 Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 1997 Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 2000 Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 2009 Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Program Goals.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Facts Regarding Lonnie Peck. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Facts Regarding Louis Moon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Facts Regarding Deven Suesue.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Facts Regarding Audree Chatman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 The District Court Decisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 I. Bureau Of Prisons Rules That Categorically Disqualify Statutorily Eligible Prisoners From A One-Year Sentence Reduction Under 18 U.S.C. 3621(e) Violated 706(2)(A) Of The Administrative Procedure Act Because The Agency Failed To Support The Rules With Studies, Empirical Data, Or More Than Cursory Reasoning. . . . . . . . . . . . . . . . . . . 30 A. A Rule Is Arbitrary, Capricious, An Abuse Of Discretion, Or Otherwise Not In Accordance With Law When The Agency Fails To Provide A Cogent Explanation For Its Decision Supported By Relevant Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 The APA Standard Should Be Scrupulously Applied Where The Rule Involves Human Freedom, Deviation From A Statutory Norm, And Serial Violations Of Law By The Relevant Agency.. . . 33 The BOPs Legal Error And Conclusory Claim Regarding Its Experience Provide Inadequate Support For Disqualification Of Statutorily Eligible Firearms Possessors. . . . . . . . . . . . . . . . . . . . . . 38 1. The District Courts Finding That The BOPs Program Statement Perpetuated Legal Error Rendered The Rules Invalid In Their Entirety.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 The BOP Provided An Inadequate Explanation And No Empirical Evidence In Support Of Its Rule. . . . . . . . . . . . . . . 41

B.

C.

2.

ii

3.

The BOP Invocation Of Experience Without More Is Inadequate To Support Its Rule Disqualifying Statutorily Eligible Prisoners From The Sentence Reduction. . . . . . . . . . 48

D.

The BOPs Rules Continue To Violate The APA By Disqualifying Offenders With Certain Prior Convictions. . . . . . . . . 52 1. The BOPs Reliance On The Uniform Crime Reporting Index Does Not Provide An Adequate Basis For The Disqualification Based On Even Stale Prior Convictions. . . . 53 The District Court Erred In Supplying A Rationale Not Offered By The Agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

2.

E.

In Promulgating The 2009 Rules, The BOP Failed To Consider Congresss Intention To Maximize Use Of The Incentive. . . . . . . . 58

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Statement of Related Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

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TABLE OF AUTHORITIES Page FEDERAL CASES Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Association of Irritated Citizens v. EPA, 632 F.3d 584 (9th Cir. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 60 Bailey v. United States, 516 U.S. 137 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 46 Bowen v. Hood, 202 F.3d 1211 (9th Cir. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . 5, 12, 13, 36 Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962). . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 30, 37, 50, 52, 56 Byrd v. Hasty, 142 F.3d 1395 (11th Cir. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 California Energy Commission v. Bonneville Power Admin., 909 F.2d 1298 (9th Cir. 1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 51 City of Sausalito v. O'Neill, 386 F.3d 1186 (9th Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Crickon v. Thomas, 579 F.3d 978 (9th Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Davis v. Crabtree, 109 F.3d 566 (9th Cir. 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim iv

Davis v. Crabtree, 923 F. Supp. 166 (D. Or. 1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Downey v. Crabtree, 100 F.3d 662 (9th Cir. 1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Downey v. Crabtree, 923 F. Supp. 164 (D. Or. 1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Fristoe v. Thompson, 144 F.3d 627 (10th Cir. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Humane Society of United States v. Locke, 626 F.3d 1040 (9th Cir. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 55 Jacks v. Crabtree, 114 F.3d 983 (9th Cir. 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 11 Jonah R. v. Carmona, 446 F.3d 1000 (9th Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Koon v. United States, 518 U.S. 81 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Lopez v. Davis, 531 U.S. 230 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Martin v. Gerlinski, 133 F.3d 1076 (8th Cir. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Martinez v. Flowers, 164 F.3d 1257 (10th Cir. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Mora-Meraz v. Thomas, 601 F.3d 933 (9th Cir. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Motor Vehicle Manufacturers Association of U.S. Inc. v. State Farm Mutual Automobile Insurance, 463 U.S. 29 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Mujahid v. Daniels, 413 F.3d 991 (9th Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 National Association of Home Builders, 340 F.3d 835 (9th Cir. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 National Resources Defense Council, Inc. v. Herrington, 768 F.2d 1355 (D.C. Cir.1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Nw. Coalition for Alternatives to Pesticides v. EPA, 544 F.3d 1043 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Nw. Environmental Defense Ctr. v. Bonneville Power Admin., 477 F.3d 668 (9th Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33, 40, 56 Paulsen v. Daniels, 413 F.3d 999 (9th Cir. 2005).. . . . . . . . . . . . . . . . . . . . . 4, 12, 13, 36, 40, 45 Pelissero v. Thompson, 170 F.3d 442 (4th Cir. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Ranchers Cattlemen Action Legal Fund v. U.S. Dept of Agric., 415 F.3d 1078 (9th Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33 Reynolds v. Thomas, 603 F.3d 1144 (9th Cir. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

vi

Sacora v. Thomas, 628 F.3d 1059 (9th Cir. 2010).. . . . . . . . . . . . . . . . . . . . . . 26, 39, 45, 48, 49 Serrato v. Clark, 486 F.3d 560 (9th Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 34 Sierra Forest Legacy v. Sherman, 2011 WL 2041149 (9th Cir. May 26, 2011). . . . . . . . . . . . . . . . . . . . . . . . . 50 Smith v. Rodriguez, 541 F.3d 1180, 1186 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Spears v. United States, 129 S. Ct. 840 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Stinson v. United States, 508 U.S. 36 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Stiver v. Meko, 130 F.3d 574 (3d Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Turner v. Rogers, 131 S. Ct. 2507 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 United States v. Canon, 993 F.2d 1439 (9th Cir. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 47 United States v. Cantu, 12 F.3d 1506 (9th Cir. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 United States v. R.L.C., 503 U.S. 291 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Venegas v. Henman, 126 F.3d 760 (5th Cir. 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

vii

Warren v. Crabtree, 185 F.3d 1018 (9th Cir. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 44, 47 Wottlin v. Fleming, 136 F.3d 1032 (5th Cir. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Zacher v. Tippy, 202 F.3d 1039 (8th Cir. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 FEDERAL STATUTES 5 U.S.C. 706. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 18 U.S.C. 3583(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 18 U.S.C. 3625. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24 18 U.S.C. 4046. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 18 U.S.C. 922(g).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 18 U.S.C. 924. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11, 12, 13, 23, 44, 47 18 U.S.C. 3621. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 21 U.S.C. 841. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 28 U.S.C. 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 2241. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3 28 U.S.C. 2243. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

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FEDERAL REGULATORY MATERIALS 28 C.F.R. 550.55.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18, 22, 23, 24, 53 28 C.F.R. 550.58.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 51 60 Fed. Reg. 27692 (May 25, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 61 Fed. Reg. 25121 (May 17, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 62 Fed. Reg. 53690 (Oct. 15, 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 65 Fed. Reg. 80745 (Dec. 22, 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 51 74 Fed. Reg. 1892 (Jan. 14, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim MISCELLANEOUS Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 32001, 108 Stat. 1796, 1897 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 U.S.S.G. 4A1.2(e).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 57 Conf. Rep. to Consolidated Appropriations Act of 2010, 155 Cong. Rec. H1363103, Pub. L. No. 111-117, 123 Stat. 3034 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . 20 Federal Bureau of Prisons, Federal Prison Residential Drug Treatment Reduces Substance Use and Arrests After Release (2007).. . . . . . . . . . . . . . . . . . . . . . . . . 20 Stephen R. Sady & Lynn Deffebach, Second Look Resentencing Under 18 U.S.C. 3582(c) As An Example Of Bureau Of Prisons Policies That Result In Overincarceration, 21 Fed. Sent. R. 167, 168 (2009). . . . . . . . . . . . . . . . . . . . . . 34 Crime Control Act of 1990, Pub. L. No. 101-647, 2903, 104 Stat. 4789, 4913 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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STATEMENT OF JURISDICTION The district courts habeas corpus jurisdiction is based on 28 U.S.C. 2241. Jurisdiction is conferred on this Court to review the final orders denying habeas corpus relief by 28 U.S.C. 1291 and 2253. Each of the petitioners in this consolidated appeal filed timely notices of appeal under Rule 4(a) of the Federal Rules of Appellate Procedure: Mr. Pecks petition was denied on March 30, 2011, and he filed his notice of appeal on April 1, 2011; Mr. Moons petition was denied on April 1, 2011, and he filed his notice of appeal on April 4, 2011; Mr. Suesues petition was denied on April 20, 2011, and he filed his notice of appeal on April 22, 2011; and Mr. Chatmans petition was denied on June 7, 2011, and he filed his notice of appeal on June 8, 2011.

STATEMENT OF ISSUE Whether Bureau of Prisons rules that categorically disqualify statutorily eligible prisoners from a one-year sentence reduction under 18 U.S.C. 3621(e) violated 706(2)(A) of the Administrative Procedure Act because the agency failed to support the rules with studies, empirical data, or more than cursory reasoning.

STATEMENT OF THE CASE Nature of the Case These direct appeals assert that the orders denying habeas corpus relief under 28 U.S.C. 2241 entered by the Honorable Michael W. Mosman, United States District Judge for the District of Oregon, should be reversed because each petitioner is categorically eligible for a sentence reduction for successful completion of inprison residential treatment under 18 U.S.C. 3621(e). Course of Proceedings Following denial of early release eligibility under 18 U.S.C. 3621(e), these statutorily eligible prisoners filed petitions for writs of habeas corpus under 28 U.S.C. 2241 claiming that Bureau of Prisons (BOP) rules were invalid and promulgated in violation of 706 of the Administrative Procedure Act (APA). ER 72, 219, 315, 422. The BOP urged dismissal based on procedural grounds in each of the cases. ER 132, 231, 320, 433. On the merits, the BOP argued that the disqualification rules were a valid exercise of the BOPs discretion. ER 137, 241, 326, 441. On March 30, 2011, the district court decided Peck v. Thomas, CV 10-709, rejecting the BOPs procedural arguments, but finding for the BOP on the merits. ER 03. The following day, the district court entered judgment in Moon v. Thomas, CV 10-1154, rejecting the BOPs jurisdictional argument and finding for the BOP on the 3

merits. ER 24. On April 4, 2011, and June 7, 2011, the district court entered judgments in Suesue v. Thomas, CV 10-1295-MO, and Chatman v. Thomas, CV 101155, respectively, incorporating by reference the opinion entered in Peck v. Thomas. ER 49, 61. Each petitioner filed a timely notice of appeal. ER 1, 22, 47, 59. On June 22, 2011, the petitioners moved to consolidate all four appeals, which the Court granted on June 24, 2011. Custody Status The petitioners remain in BOP custody with the following projected release dates: Mr. Peck on November 12, 2011 (Seattle community corrections); Mr. Moon on December 30, 2011 (Seattle community corrections); Mr. Suesue on November 18, 2012 (FCI Sheridan); and Mr. Chatman on July 14, 2012 (FCI Sheridan). The habeas claims remain remediable after commencement of supervised release because the grant of the writ provides a potential predicate for modification or termination of the term of supervised release under 18 U.S.C. 3583(e). See, e.g., Reynolds v. Thomas, 603 F.3d 1144, 1148 (9th Cir. 2010); Arrington v. Daniels, 516 F.3d 1106, 1112 n.4 (9th Cir. 2008); Serrato v. Clark, 486 F.3d 560, 565 (9th Cir. 2007); Mujahid v. Daniels, 413 F.3d 991, 994-95 (9th Cir. 2005); Paulsen v. Daniels, 413 F.3d 999, 1005 n.3 (9th Cir. 2005). 4

STATEMENT OF REVIEWABILITY AND STANDARD OF REVIEW On this direct review of the district courts denial of a petition for writ of habeas corpus, the Court reviews the merits de novo. Jonah R. v. Carmona, 446 F.3d 1000, 1003 (9th Cir. 2006); Bowen v. Hood, 202 F.3d 1211, 1218 (9th Cir. 2000). The Court reviews construction of the relevant statutes de novo. Id. Under 706 of the APA, courts hold unlawful and set aside agency action, findings, and conclusions found to be[ ] arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Motor Vehicle Mfrs. Assn of U.S., Inc. v. State Farm Mut. Auto. Ins., 463 U.S. 29, 49 (1983) (citing 5 U.S.C. 706(2)(A)). STATEMENT OF FACTS This appeal is the latest in a series of cases involving the BOPs categorical disqualification of statutorily eligible prisoners from the incentive for nonviolent prisoners to enter and to complete the intensive residential drug abuse program (RDAP) under 18 U.S.C. 3621(e). Despite being nonviolent offenders with verifiable drug abuse problems, the BOP has categorically denied the petitioners eligibility for early release based on their convictions for firearms possession under 18 U.S.C. 922(g). The BOP also disqualified Mr. Moon based on a 1992 prior robbery conviction. Under the statute, neither weapons possession nor prior

convictions statutorily disqualifies prisoners from eligibility for the sentence 5

reduction. Davis v. Crabtree, 109 F.3d 566, 568-69 (9th Cir. 1997); Downey v. Crabtree, 100 F.3d 662, 668 (9th Cir. 1996); accord Jacks v. Crabtree, 114 F.3d 983, 984 (9th Cir. 1997) (the petitioners met the statutory criteria). The following sets out the relevant history of the statute, administrative record, and litigation. Statutory and Regulatory Background In 1990, Congress mandated the creation of BOP programs to address prisoners needs for substance abuse treatment, stating: The Bureau shall, to the extent practicable, make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse. Crime Control Act of 1990, Pub. L. No. 101-647, 2903, 104 Stat. 4789, 4913 (1990) (codified at 18 U.S.C. 3621(b)). In 1994, Congress specified that, subject to available appropriations, all eligible prisoners would have access to residential treatment after 1997. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 32001, 108 Stat. 1796, 1897 (1994) (codified at 18 U.S.C. 3621(e)(1)(C)). Recognizing that prisoners were not undertaking the rigorous in-prison residential program, Congress also enacted an incentive of a sentence reduction of up to one year to encourage prisoners to enroll in the residential substance abuse programs. 18 U.S.C. 3621(e)(2). The statute set two limitations

on who would be eligible for early release consideration nonviolent offenders and successful graduates of the program: 2) Incentive for prisoners successful completion of treatment program. (A) Generally. Any prisoner who, in the judgment of the Director of the Bureau of Prisons, has successfully completed a program of residential substance abuse treatment provided under paragraph (1) of this subsection, shall remain in the custody of the Bureau under such conditions the Bureau deems appropriate. If the conditions of confinement are different from those the prisoner would have experienced absent the successful completion of the treatment, the Bureau shall periodically test the prisoner for substance abuse and discontinue such conditions on determining that substance abuse has recurred. (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 Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve. 18 U.S.C. 3621(e). Statutorily, the petitioners in this case qualify for the sentence reduction upon successful completion of the program because their current offenses of conviction under 18 U.S.C. 922(g) are categorically nonviolent offenses. Davis, 109 F.3d at 568-69. The BOP subsequently promulgated numerous regulations and program statements to administer the program, including rules creating classes of nonviolent offenders who would be categorically ineligible for the sentence reduction. 7

1.

1995 Rules

On May 25, 1995, the BOP promulgated a rule that establishes procedures to be used by the Bureau in determining eligibility for early release and for determination of the length of the reduction in sentence. Drug Abuse Treatment Programs: Early Release Consideration, 60 Fed. Reg. 27692 (May 25, 1995). The BOP disqualified prisoners convicted of a crime of violence as defined in 18 U.S.C. 924(c) the statutory converse of nonviolent offense and categorically disqualified any prisoner with certain prior convictions: 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, . . . unless the inmates current offense is determined to be a crime of violence as defined in 18 U.S.C. 924(c)(3), or unless the inmate has a prior federal and/or state conviction for homicide, forcible rape, robbery, or aggravated assault. 28 C.F.R. 550.58 (May 1995). The BOP issued a companion program statement in which it defined crimes of violence to include firearms convictions under 18 U.S.C. 922(g) and drug-trafficking convictions under 21 U.S.C. 841 that involved a twolevel enhancement for possession of a firearm. Program Statement No. 5162.02 (July 24, 1995). The BOP provided the following explanation for categorically excluding nonviolent offenders with enumerated prior convictions: In exercising the Bureaus discretion in reducing a sentence, the Bureau shall also review the criminal history of the inmate contained in the 8

Presentence Investigation Report, and any inmate with a federal and/or state conviction for homicide, forcible rape, robbery, or aggravated assault shall also be excluded from consideration. Because state convictions may show a considerable range in the degree of violence used in the offense, the Bureau has chosen to use the above cited categories of crimes, which are reported under the FBI Violent Crime Index, as the sole determinant of violence in the criminal history. 60 Fed. Reg. at 27692. The companion program statement mirrored the language of the first interim rule, but also allowed BOP staff to look to the FBI Rap Sheet to determine if the inmate has any previous state or federal convictions for robbery, forcible rape, aggravated assault, or homicide. Program Statement 5330.10, Ch. 6 at 1 (May 25, 1995). In May 1996, the BOP expanded the categories of statutorily eligible prisoners who were administratively disqualified to include those who could not participate in community corrections, such as prisoners with detainers. Drug Abuse Programs: Early Release Consideration, 61 Fed. Reg. 25121 (May 17, 1996). Although not included in the changes submitted for notice and comment, the companion program statement was amended to clarify that any adult prior conviction for the enumerated offenses, regardless of when it occurred, was categorically disqualifying: Any adult conviction for Homicide (including Non-negligent Manslaughter), Forcible Rape, Robbery, or Aggravated Assault is to be considered a crime of violence as it relates to previous criminal history; drug abuse treatment program coordinators must review available

documents containing criminal history to ensure the inmate does not have any prior adult convictions for these crimes. For purposes of this Program Statement, previous adult convictions includes criminal convictions that occur at any time, prior to the inmates 3621(e) release date. Change Notice 01 to Program Statement 5330.10 Ch. 6 at 2 (May 17, 1996) (emphasis in original). In the first wave of litigation, this Circuit invalidated the BOPs rules because offenses involving the mere possession of firearms were not categorically crimes of violence. Downey, 100 F.3d at 668 (drug offenses with gun enhancements); Davis, 109 F.3d at 569 ( 922(g) offenses). The courts of appeals divided over the validity of the BOPs definition of crimes of violence to include firearm possession. The Eighth, Tenth, and Eleventh Circuits agreed with this Court (Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir. 1998); Fristoe v. Thompson, 144 F.3d 627, 631 (10th Cir. 1998), Byrd v. Hasty, 142 F.3d 1395, 1398 (11th Cir. 1998)), while the Fourth and Fifth upheld the BOPs interpretation (Pelissero v. Thompson, 170 F.3d 442, 447 (4th Cir. 1999), Venegas v. Henman, 126 F.3d 760, 763 (5th Cir. 1997)). In Warren v. Crabtree, 185 F.3d 1018, 1021 n.6 (9th Cir. 1999), this Court distinguished offenses involving only the possession of firearms from those involving the use of a firearm

10

under 18 U.S.C. 924(c), holding that the BOPs categorization of 924(c) offenses as crimes of violence was consistent with the statute. Prisoners also challenged the disqualification based on prior convictions, arguing that the statute only allowed the BOP to consider the current offense of conviction. This Court held in Jacks v. Crabtree that the statute did not limit the BOPs discretion to enlarge the classes of ineligible prisoners to include those convicted of certain prior offenses. 114 F.3d 983, 984-85 (9th Cir. 1997).1 Based only on the representations of counsel in the course of the litigation, the Court concluded that the rule was reasonable and consistent with the statutory scheme because Congress intended to deny the one-year reduction to potentially dangerous inmates and that a prior violent conviction was a good indicator of potential dangerousness. Id. at 986 (citing Resp. Br. at 23). 2. 1997 Rules

In October 1997, purportedly to resolve the circuit split, the BOP published an interim rule and accompanying program statement, effective immediately, that modified the crime of violence construct by substituting the Directors discretion to disqualify 922(g) offenders: Accord Stiver v. Meko, 130 F.3d 574, 577 (3d Cir. 1997); Wottlin v. Fleming, 136 F.3d 1032, 1036 (5th Cir. 1998); Martinez v. Flowers, 164 F.3d 1257, 1260 (10th Cir. 1998); Zacher v. Tippy, 202 F.3d 1039, 1044 (8th Cir. 2000). 11
1

The interim rule published on May 25, 1995, attempted to define the term crime of violence pursuant to 18 U.S.C. 924(c)(3). Because of differences in application of case law among the various Federal courts, a few crimes would not be clearly covered by the Bureaus definition. This interim rule avoids this complication by using the discretion allotted to the Director of the Bureau of Prisons in granting a sentencing reduction to exclude 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. Drug Abuse Treatment and Intensive Confinement Center Programs: Early Release Consideration, 62 Fed. Reg. 53690-01 (Oct. 15, 1997). Prisoners again challenged the offense-of-conviction rules regarding firearms possession, both as retroactively applied and as violating the statute. See Bowen v. Hood, 202 F.3d 1211 (9th Cir. 2000) (affirming that the October 1997 rules did not apply retroactively; reversing the finding that prospective application of the rules violated the statute). In Lopez v. Davis, the Supreme Court, as a matter of statutory construction, upheld the BOPs authority to disqualify statutorily eligible prisoners from eligibility for the sentence reduction. 531 U.S. 230, 244 (2001). The Lopez opinion explicitly left unresolved the BOPs compliance with the APA in promulgating the interim rule. 531 U.S. at 244 n.6. In Paulsen v. Daniels, this Court invalidated the same interim

12

rule at issue in Lopez and Bowen for failure to comply with the APAs notice-andcomment requirements. 413 F.3d 999, 1005-06 (9th Cir. 2005). 3. 2000 Rules

By 2000, the BOP promulgated a final version of the 1997 interim rule, with essentially identical language: The first interim rule attempted to define the term crime of violence pursuant to 18 U.S.C. 924(c)(3). Due to varying interpretations of the regulation and caselaw, the Bureau could not apply the regulation in a uniform and consistent manner. The third interim rule sought to resolve this complication. In the third interim rule, we used the discretion allotted to the Director for granting a sentence reduction to exclude 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. Thus, even as the Bureau concedes that offenses related to this regulation are non-violent offenses, the implementing statute does not mandate that all non-violent offenders must receive an early release. The statute merely indicates that the sentence may be reduced by the Bureau of Prisons. Drug Abuse Treatment and Intensive Confinement Center Programs: Early Release Consideration, 65 Fed. Reg. 80745 (Dec. 22, 2000). In Arrington, the Court held the BOPs final rule was invalid under 706(2)(A) of the APA because the BOP had

13

failed to set forth a rationale for its decision to categorically exclude prisoners convicted of [firearm possession] offenses . . . . 516 F.3d at 1114 (citing State Farm, 463 U.S. at 42). The Arrington panel rejected two rationales offered by the BOP in defending the regulation. The first a public safety rationale cited with favor in Lopez was entirely absent from the administrative record and was thus the sort of post hoc rationalization[ ] of appellate counsel that we are forbidden to consider in conducting review under the APA. 516 F.3d at 1113 (citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The second rationale the need for uniformity in the application of the eligibility regulation provided no explanation for why the Bureau exercised its discretion by categorical exclusion rather than categorical inclusion. Id. at 1113-14. In other words, the BOPs uniformity rationale failed under arbitrary-and-capricious review because the BOP could have reached its goal just as easily through categorical eligibility, and the administrative record did not provide a rationale for the decision to categorically exclude. Id. Following the Arrington decision, the BOP issued an Operations Memorandum providing that Ninth Circuit prisoners who were deemed ineligible based on the rules invalidated in Arrington were categorically eligible for early release. ER 181.

14

In Crickon v. Thomas, this Court reached a similar conclusion regarding the exclusion based on prior convictions. 579 F.3d 978, 987 (9th Cir. 2009). As with the rule invalidated in Arrington, the BOP provided little insight into the decision to exclude statutorily eligible prisoners from the early release incentive based on prior convictions. The BOP offered no rationale beyond explaining that it was relying on the Uniform Crime Reporting (UCR) Index as the sole determinate of violence in the criminal history. Crickon, 579 F.3d at 984 (citing 60 Fed. Reg. at 27695).2 This Court held that the BOPs explanation was inadequate. Id. at 983. Citing to State Farm, 463 U.S. at 48, and Arrington, 516 F.3d at 1114, the Court concluded that the BOP failed to meet the requirement that the agency must cogently explain why it has exercised its discretion in a given manner and articulate a rationale when that discretion is exercised. Crickon, 579 F.3d at 985. Additionally, this Court found that the decision to exclude all prior convictions without temporal limitation was premised on a misreading of law. Crickon, 579 F.3d at 986. The Court concluded by noting that the BOPs position is difficult to square with Congresss expressed intent to provide an incentive to encourage maximum participation in the BOPs substance abuse programs. Id. Following the Crickon decision, the BOP found eligible those

The BOP improperly identified the UCR Index as FBI Violent Crime Index. 60 Fed. Reg. at 27695. 15

prisoners in the Ninth Circuit previously denied eligibility based on prior convictions. ER 314. 4. 2009 Rules

On January 14, 2009, the BOP published revised rules governing the administration of the drug abuse program that were applicable to all prisoners who applied to the program after March 16, 2009. Drug Abuse Treatment Program: Subpart Revision and Clarification and Eligibility & D.C. Code Felony Offenders for Early Release Consideration, 74 Fed. Reg. 1892-01 (Jan. 14, 2009) (ER 119). In incorporating the provisions contained in the 2000 final rule invalidated in Arrington into the 2009 rule, the BOP responded to comments relating to participation in treatment, added disqualifications, and extended RDAP eligibility to District of Columbia offenders. The BOP also issued new companion program statements. Program Statement 5331.11 (Mar. 16, 2009); Program Statement 5162.05 (Mar. 16, 2009) (ER 88); Program Statement 5331.02 (Mar. 16, 2009) (ER 106). The rules continue to provide that, as an exercise of the Directors discretion, inmates with a current felony conviction for an offense involving the carrying, possession, or use of a firearm or other dangerous weapon or explosives are not eligible for early release under the RDAP incentive. 28 C.F.R. 550.55(b)(5)(ii) (2009) (ER 182); Program Statement 5162.05 at 4 (ER 109). The rules again provide 16

that, in the Directors discretion, prisoners are ineligible for early release who have prior convictions for homicide, forcible rape, robbery, aggravated assault, arson, kidnaping, or an offense involving sexual abuse of minors. 28 C.F.R.

550.55(b)(4)(i-vii) (2009) (ER 182); Program Statement 5162.05 at 4 (ER 108-09). In promulgating the latest rule, the BOP discussed the rules history to explain the denial of early release for prisoners whose offenses involved firearms: The Director of the Bureau, in his discretion, chooses to preclude from early release consideration inmates convicted of offenses involving carrying, possession or use of a firearm and offenses that present a serious risk of physical force against person or property, as described in 550.55(b)(5)(ii) and (iii). Further, in the correctional experience of the Bureau, the offense conduct of both armed offenders and certain recidivists suggests that they pose a particular risk to the public. There is a significant potential for violence from criminals who carry, possess or use firearms. As the Supreme Court noted in Lopez v. Davis, denial of early release to all inmates who possessed a firearm in connection with their current offense rationally reflects the view that such inmates displayed a readiness to endanger anothers life. The Bureau adopts this reasoning. The Bureau recognizes that there is a significant potential for violence from criminals who carry, possess or use firearms while engaged in felonious activity. Thus, in the interest of public safety, these inmates should not be released months in advance of completing their sentences. 74 Fed. Reg. at 1895 (ER 122) (citation omitted in original). The BOP did not respond to one commentators recommendation that inmates convicted of an offense that involved the carrying or possession (but not use) of a firearm or other dangerous weapon or explosives [] be eligible for early release consideration. Id. 17

Although not in the proposed regulation or Federal Register notices, the BOP continued to classify felon in possession of a firearm as a crime of violence. Program Statement 5162.05 at 3-4 (ER 90-91). Not only is this classification inconsistent with the agencys treatment of 922(g) as a nonviolent offense subject to discretion, it ignores this Courts decision in Davis and the majority of other circuit decisions following Davis. The March 2009 rules also addressed the exclusion of prisoners with certain prior convictions. The BOP relied on public safety concerns in its explanation for disqualifying otherwise eligible prisoners based on prior convictions: Title 18 U.S.C. 3621(e) provides the Director of the Bureau of Prisons the discretion to grant an early release of up to one year upon the successful completion of a residential drug abuse treatment program. The regulation [550.55(b)(4)(i)-(vii)] provides that an inmate who has a prior misdemeanor or felony conviction for homicide, forcible rape, robbery, aggravated assault, arson, kidnaping, or child sexual abuse will not be eligible for early release. In exercising the Directors statutory discretion, we considered the crimes of homicide, forcible rape, robbery, aggravated assault, arson, and kidnaping, as identified in the FBIs Uniform Crime Reporting Program (UCR), which is a collective effort of city, county, state, tribal, and federal law enforcement agencies to present a nationwide view on crime. The definitions of these terms were developed for the National Incident-Based Reporting System and are identified in the UCR due to their inherently violent nature and particular dangerousness to the public.

18

The Director of the Bureau exercises discretion to deny early release eligibility to inmates who have a prior felony or misdemeanor conviction for these offenses because commission of such offenses rationally reflects the view that such inmates displayed readiness to endanger the public. 74 Fed. Reg. at 1894 (emphasis added) (ER 121). The BOP did not cite to any empirical studies or case reviews, or describe the process it used to reach its conclusions.3 The agency did not distinguish prior convictions that were too stale to merit criminal history points, continuing to rely on all prior convictions even though this Court noted in Crickon that the inclusion of all prior convictions, regardless of staleness, was premised on legal error. See Crickon, 579 F.3d at 986-87. 5. Program Goals

Section 3621(e) has the dual purposes of providing effective drug treatment in order to reduce recidivism and reducing the time prisoners who successfully complete RDAP spend in prison in order to reduce prison populations. The first goal has had significant success: prisoners who complete the RDAP are 16 percent less likely to recidivate and 15 percent less likely to relapse to drug use within three years after

The BOP also added sexual abuse of a minor to the list of disqualifying prior convictions. The BOP explained that the passage of the Adam Walsh Act evidences the intent of Congress to encompass any offense relating to minors that involves sexual conduct, and to limit public exposure, including early release opportunities, to inmates found to have these types of offenses in their backgrounds. 74 Fed. Reg. at 1894. This case does not implicate this provision of the 2009 rules. 19

release. Fiscal Year 2012 Budget Request for the Bureau of Prisons: Hearing Before the Subcomm. on Commerce, Justice, Science and Related Agencies of the H. Comm. on Appropriations, 112th Cong. (Mar. 15, 2011) (statement of Harley Lappin, Director, Federal Bureau of Prisons); accord Federal Bureau of Prisons, Federal Prison Residential Drug Treatment Reduces Substance Use and Arrests After Release (2007). The second goal has not been as successful, partly because the BOP has limited the number of statutorily-eligible prisoners who are eligible for the sentence reduction, and partly because they are enrolled so late in their sentences that the average sentence reduction is only eight months, rather than the twelve months provided by statute. Lappin Statement, supra. Consistent with the Crickon

recognition that Congress encouraged maximum participation, 579 F.3d at 986, Congress recently emphasized that the one-year sentence reduction incentive was also intended to maximize early release opportunities in order to reduce prison overcrowding: To the greatest extent possible, BOP shall prioritize the participation of nonviolent offenders in the Residential Drug Abuse Treatment Program (RDAP) in a way that maximizes the benefit of sentence reduction opportunities for reducing the inmate population. Conf. Rep. to Consolidated Appropriations Act of 2010, 155 CONG. REC. H13631-03, at H13887 (daily ed. Dec. 8, 2009); Pub. L. No. 111-117, 123 Stat. 3034 (2009) (emphasis added) (hereinafter CAA of 2010). 20

Facts Regarding Lonnie Peck Mr. Peck was convicted in the United States District Court for the District of Montana for being a felon in possession of a firearm in violation of 18 U.S.C. 922(a), (g)(1), and (j). On February 6, 2009, he received a sentence of 48 months imprisonment in United States v. Peck, CR 08-119-BLG-RFC. ER 144. Mr. Peck was designated to the FCI at Sheridan, Oregon. Although Mr. Peck applied for and was accepted into RDAP, on March 17, 2010, the BOP determined that Mr. Peck was ineligible for 3621(e) benefits pursuant to PS 5162.05, sec. 3a, . . . a conviction for 18 USC 922(g). ER 184-85. Mr. Peck filed a pro se petition for writ of habeas corpus challenging the BOP rules excluding him from early release eligibility on June 21, 2010. ER 72. In his amended petition, he argued that the rules were arbitrary and capricious under the APA. ER 79. The BOP responded on October 25, 2010, asserting that the petition should be dismissed because Mr. Peck had not exhausted his administrative remedies. ER 134. On the merits, the BOP argued that the administrative record clearly stated the BOPs rationale for the rule because it adopted the Supreme Courts reasoning in Lopez in the Federal Register notice. ER 136. The petitioner replied on December 28, 2010, contending that reliance on Lopez to supply a rationale was misplaced 21

because it merely repeated the BOPs post hoc litigation position in Lopez, that the proffered rationale was overly broad because it failed to explain why possession of firearms was equated with use and carry, that the rationale was internally inconsistent, and that the BOP provided no evidence to support its public safety rationale. ER 160. The prisoner further argued that the BOP categorization of 18 U.S.C. 922(g) as a crime of violence was an incorrect interpretation of nonviolent offense under Davis, 109 F.3d at 569. ER 178-79. Facts Regarding Louis Moon Mr. Moon was convicted under 18 U.S.C. 922(g)(1), and on February 6, 2009, was sentenced to a term of 60 months imprisonment by the United States District Court for the District of Alaska in United States v. Moon, CR 08-69-JWS. ER 257. The presentence report listed a 1992 robbery out of Eureka, California, for which he received no criminal history points due to the staleness of the prior conviction under U.S.S.G. 4A1.2(e). ER 267. Mr. Moon was designated to the FCI at Sheridan, Oregon. On July 30, 2009, Mr. Moon requested RDAP programming, but it was not until January 13, 2010, that the BOP determined that he was eligible to participate. ER 264. A month later, the BOP determined that Mr. Moon was ineligible for early release under 28 C.F.R. 550.55(b) and Program Statement 5162.05 based on his current offense of being a 22

felon in possession of a firearm and based on the 1992 conviction for robbery. ER 265. On September 22, 2010, Mr. Moon filed a pro se petition challenging the rules used to disqualify him from early release consideration. ER 219. On November 4, 2010, the government moved to dismiss, arguing that the court lacked jurisdiction under 18 U.S.C. 3625, and, alternatively, that Mr. Moon was properly disqualified under the 2009 rules. ER 233. Mr. Moon filed an amended reply on December 3, 2010, asserting that the 2009 rules were arbitrary and capricious under 706 of the APA. ER 280. Facts Regarding Deven Suesue Mr. Suesue was convicted in the United States District Court for the District of Alaska for violation of 18 U.S.C. 922(g)(1), and 924(a)(2) and (d)(1), and on April 7, 2008, received a sentence of 70 months imprisonment in United States v. Suesue, CR 07-121-TMB. ER 387. Mr. Suesue was designated to the FCI at Sheridan, Oregon. Mr. Suesue applied for and was accepted into RDAP, but, on August 20, 2010, the BOP determined that Mr. Suesue was ineligible for 3621(e) benefits pursuant to 28 C.F.R. 550.55(b)(5)(ii), (iii) & (6), in addition to PS 5162.05, sections 3.a, 3.c, 4.d and 4.e. ER 393.

23

On October 19, 2010, Mr. Suesue filed a pro se petition asserting that the rules used to deny him eligibility were invalid. ER 317. In its response filed on December 6, 2010, the BOP argued that the court lacked jurisdiction under 18 U.S.C. 3625 and that the BOP had discretion to determine that Mr. Suesue was ineligible for early release. ER 322-27. In reply, Mr. Suesue argued that the 2009 rules were invalid under 706 of the APA. ER 399. Facts Regarding Audree Chatman Mr. Chatman was convicted in the United States District Court for the Northern District of California for a violation of 18 U.S.C. 922(g), and on June 3, 2009, received a sentence of 51 months imprisonment in United States v. Chatman, CR 08821-CRB. ER 479. Although Mr. Chatman applied for and was accepted into RDAP, on July 26, 2010, the BOP determined that Mr. Chatman was ineligible for 3621(e) benefits pursuant to 28 C.F.R. 550.55(b)(5)(ii) and (iii), and pursuant to PS 5162.05, sec. 3.a and 4.e. ER 450. Mr. Chatman appealed the determination through the Administrative Remedy Program. On September 22, 2010, Mr. Chatman filed a pro se petition for writ of habeas corpus asserting that the rules relied upon to disqualify him from early release eligibility were invalid. ER 422. The government replied on January 24, 2011, asserting that the petition should be dismissed under Rule 12(b)(1) for lack of subject 24

matter jurisdiction, that there was no liberty interest in the sentence reduction, and that the 2009 rules were a proper exercise of BOP discretion. ER 433. Mr. Chatman replied on April 4, 2011, with the assistance of counsel. ER 459. The petitioner objected to dismissal on procedural grounds and argued that the rules were invalid under 706 of the APA and contrary to the statute. The District Court Decisions The district court entered four separate opinions in this consolidated appeal. The first in Peck addressed the BOP disqualification based on firearm possession. ER 003. The decisions in Chatman and Suesue adopted by reference the reasoning in Peck. ER 49, 61. The opinion in Moon reiterated the reasoning in Peck and also addressed the disqualification based on prior convictions. ER 24. In all four cases, the district court agreed with the petitioners that the BOPs rule that deemed persons convicted under 922(g) as statutorily ineligible was invalid but upheld the exclusions on other grounds.4 The aspect of the BOPs rules that the district court held invalid involved the BOPs program statement that classified offenses under 18 U.S.C. 922(g) (felon in possession of a firearm) as categorical crimes of violence. The district court found For claritys sake, the petitioners cite only to the decision in Peck regarding the exclusion based on firearm possession and to Moon regarding the prior offense exclusion. 25
4

that the BOP violated this Courts holding in Davis that 922(g) convictions were categorically nonviolent offenses. ER 20. Despite the unlawful program statement, the district court found that, because the prisoners were deemed unqualified under both the rules exercising the Directors discretion and the invalid program statement defining crime of violence, the petitioners ineligibility determinations would not be vacated. ER 20. The district court did not address whether the Directors discretion was based, in whole or in part, on the legally erroneous assumption that the offense constituted a crime of violence. Relying primarily on this Courts decision in Sacora v. Thomas, 628 F.3d 1059, 1068 (9th Cir. 2010), the district court in Peck found that the BOP supplied a sufficient rationale for the disqualification of offenders whose offenses involved firearm possession. ER 19-20. The district court reasoned that, like Sacora, it is reasonable for the BOP to rely on its experience, even without having quantified it in the form of a study. ER 17 (quoting Sacora, 628 F.3d at 1068-69). Moreover, the court held that the BOPs reliance on Lopez in its rationale was reasonable, rejecting the petitioners argument that citation to Lopez in the administrative record was merely a restatement of the BOPs litigation position, not the product of reasoned and empirically-based decision-making. ER 19.

26

The district court distinguished Arrington because there the courts decision focused on the BOPs failure to articulate any rationale for the decision to exclude rather than include those who possessed weapons in the administrative record. ER 19. The district court found that the BOP articulated a rationale in the 2009 Federal Register notice, and that it was reasonable to rely on Lopezs observation regarding firearm possession. ER 20. In Moon, the district court addressed the disqualification of offenders with prior felony or misdemeanor convictions for homicide, forcible rape, robbery, aggravated assault, arson, kidnaping, or child sex abuse. ER 38. The district court concluded that the administrative record showed that the BOP included four of the identified offenses murder, forcible rape, robbery, and aggravated assault in the list of disqualifying prior offense because the UCR Index identified them as violent crimes, defined as those offenses involving force or the threat of force. ER 44. The court found that the BOPs reliance on the UCR to identify prior offenses that will disqualify inmates from early release eligibility is not arbitrary given that four of the disqualifying offenses are specifically categorized in the UCR as violent crime. ER 44. The district court further held that it is reasonable for the BOP to conclude the past commission of a violent offense, no matter how long ago, rationally reflects the view that such inmates displayed a readiness to endanger the public. ER 44-45 27

(citing 74 Fed. Reg. at 1894). In response to the petitioners argument that the rule is arbitrary because it includes stale convictions, the district court stated in a footnote that, even if it were to find the rule invalid because consideration of past convictions is not limited to a given time period, the prisoner remained ineligible based on his current conviction for felon in possession of a weapon. ER 45 at n.10. SUMMARY OF ARGUMENT At a time when Congress is directing the BOP to maximize its authority to release prisoners earlier, the BOP continues to administer the residential drug treatment program in a manner that violates the APAs minimum standards for neutral, rational, and empirically-based rule-making by categorically excluding two classes of nonviolent offenders from the sentence reduction offered under 18 U.S.C. 3621(e) those whose offenses involved the possession of a firearm and those with certain prior convictions regardless of staleness. Although the BOPs position on these categorically nonviolent offenders has not been the product of study, data, or considered judgment, the BOP denies prisoners the mitigating effect of the incentive and promotes wasteful and expensive prison overcrowding by refusing to fully implement the 3621(e) sentence reduction for statutorily eligible prisoners. Under the reasoning of Arrington and Crickon, the administrative record falls far short of

28

the necessary justification for categorical exclusion of the petitioners from 3621(e) eligibility. Rather than complying with 706 of the APA, the agency has relied on cursory explanations that have no empirical support and whose only apparent origin is from legal responses to litigation. The APA requires more than providing unsupported rationalizations in the administrative record, especially where the BOPs conclusions are at odds with the general legal norms that mere possession of a firearm is a nonviolent offense and that the staleness of a prior conviction is relevant to its use as an indicator of risk to public safety. The need for full compliance with APA standards is especially profound where the commodity at issue is human liberty, the statute creates a norm of eligibility, and the agency has unlawfully promulgated rules on this precise subject matter on each of its three previous attempts in 1995, 1997, and 2000. The district court erred in deferring to the BOPs invocation of its expertise without substantial support in the administrative record for reasoning, data, and study. The agency never took advantage of the available information: hundreds of prisoners in the relevant classes were deemed eligible after previous litigation, but the agency did not study their success rates to provide an empirically-based and reasonable basis for decision. The lack of support in the administrative record is aggravated by the 29

finding that the BOP committed legal error in continuing to designate the offense of conviction as categorically a crime of violence. Despite this finding, the district court accepted an alternative discretionary ground with no showing that the exercise of discretion was unaffected by the legal error. The same pattern of inadequate explanation and unwarranted deference to the agency also invalidated the rule of prior convictions. This is the classic case where, by failing to hold the agency to strict and demanding compliance with the APA, the strength of modern government can become a monster which rules with no practical limits on its discretion. State Farm, 463 U.S. at 48 (citing Burlington Truck Lines, 371 U.S. at 167). ARGUMENT I. Bureau Of Prisons Rules That Categorically Disqualify Statutorily Eligible Prisoners From A One-Year Sentence Reduction Under 18 U.S.C. 3621(e) Violated 706(2)(A) Of The Administrative Procedure Act Because The Agency Failed To Support The Rules With Studies, Empirical Data, Or More Than Cursory Reasoning. Each of the prisoners in this consolidated appeal is statutorily eligible for the sentence reduction Congress provided as an incentive for nonviolent prisoners to enter and to complete intensive residential drug treatment under 18 U.S.C. 3621(e). This Court has held that the BOPs prior disqualifications based on current convictions for possession of firearms or certain prior convictions violated the APA. Arrington, 516 F.3d at 1114; Crickon, 579 F.3d at 987. Because the promulgation of 30

the 2009 rules did not cure the procedural infirmities identified in Crickon and Arrington, those rules are invalid as arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law under 706(2)(A) of the APA. By striking down the invalid rules, the Court furthers Congresss intent that the RDAP program be administered to maximize the sentence reduction. CAA of 2010 at H13887 (To the greatest extent possible, BOP shall prioritize the participation of nonviolent offenders in the Residential Drug Abuse Treatment Program (RDAP) in a way that maximizes the benefit of sentence reduction opportunities for reducing the inmate population.) (emphasis added). A. A Rule Is Arbitrary, Capricious, An Abuse Of Discretion, Or Otherwise Not In Accordance With Law When The Agency Fails To Provide A Cogent Explanation For Its Decision Supported By Relevant Facts.

The obligation under 706 of the APA that the agency articulate a rationale when discretion is exercised is not an empty requirement. Arrington, 516 F.3d at 1114. The rationale must be based on more than opinion or speculation: it must be the product of reasoned decision-making, including examination of the relevant facts and a rational connection between the facts found and the decision reached. Arrington, 516 F.3d at 1112. The BOP is required to cogently explain why it has exercised its discretion in a given manner, and the agencys explanation must be

31

sufficient to enable a reviewing court to conclude that the [agencys action] was the product of reasoned decision making. State Farm, 463 U.S. at 48-49, 52; accord Arrington, 516 F.3d at 1112; Crickon, 579 F.3d at 982. The generally applicable standards of 706 require the reviewing court to engage in a substantial inquiry based on the record that was before the agency when it made its decision. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 420 (1971). The court is not empowered to substitute its judgment for that of the agency. Arrington, 516 F.3d at 1112 (quoting Overton Park, 401 U.S. at 416). When an agency fails to consider the relevant factors and articulate a rational connection between the facts and choice made, the rule is invalid under 5 U.S.C. 706(2)(A). Arrington, 516 F.3d at 1112 (citing Ranchers Cattlemen Action Legal Fund v. U.S. Dept. of Agric., 415 F.3d 1078, 1093 (9th Cir. 2005)). An agency rule is also arbitrary and capricious if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, offered an explanation inconsistent with the evidence before the agency, or provided a rationale so implausible that it could not be ascribed to a difference in view or the product of agency expertise. State Farm, 463 U.S. at 43; accord Arrington, 516 F.3d at 1112-13; Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 687-88 (9th Cir. 2007) (NEDC). Where agency action is 32

premised on legal error, the rule violates 706. NEDC, 477 F.3d at 688 (agencys mistaken belief that legislative language was mandatory supported 706 violation). While review is deferential, it is not toothless; courts must conduct a thorough, probing, in-depth inquiry into the validity of regulations. Ranchers Cattlemen, 415 F.3d at 1093 (quoting Natl Assn of Home Builders v. Norton, 340 F.3d 835, 841 (9th Cir. 2003)). The inquiry must be searching and careful to ensure that the agency decision does not contain a clear error of judgment. Ranchers Cattlemen, 415 F.3d at 1093 (quoting City of Sausalito v. ONeill, 386 F.3d 1186, 1206 (9th Cir. 2004) (citing Natl Assn of Home Builders, 340 F.3d at 841)). Because the BOP failed to meet these standards, the 2009 rules are invalid under 706. B. The APA Standard Should Be Scrupulously Applied Where The Rule Involves Human Freedom, Deviation From A Statutory Norm, And Serial Violations Of Law By The Relevant Agency.

The State Farm standard for application of 706 of the APA evolved through cases involving standard areas of administrative regulation, such as auto safety, pollution control, and financial transactions. This case calls for more scrupulous application of the State Farm standard in light of three factors specific to this area of administrative regulation.

33

First, unlike almost any other administrative rule, the present case involves human freedom. The incentive for successful completion of the RDAP program is one of only three statutes that reduce a sentence through administrative action.5 In balancing the interests at stake, loss of personal liberty through longer imprisonment provides strong support favoring protection of prisoners whose time in custody may be reduced. See Turner v. Rogers, 131 S. Ct. 2507, 2510-11 (2011) (in determining whether counsel is required in civil contempt proceedings, the individual interest is great because [f]reedom from bodily restraint lies at the core of the liberty protected by the Due Process Clause.) (quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). Congress reinforced the fundamental respect for personal liberty in the requirement that courts impose no greater deprivation of human freedom than necessary to vindicate the purposes of federal sentencing. Spears v. United States, 129 S. Ct. 840, 843 (2009) (the overarching statutory instruction requires that defendants receive a sentence no greater than necessary to achieve the purposes of sentencing under 18 U.S.C. 3553(a)) (quoting Kimbrough v. United States, 552 U.S. The other two were either abolished (Serrato v. Clark, 486 F.3d 560, 563 (9th Cir. 2007) (in late 2004, the BOP unilaterally abolished the boot camp program authorized by 18 U.S.C. 4046, which provided for a six-month sentence reduction and extended community corrections)) or rarely implemented (Stephen R. Sady & Lynn Deffebach, Second Look Resentencing Under 18 U.S.C. 3582(c) As An Example Of Bureau Of Prisons Policies That Result In Overincarceration, 21 Fed. Sent. R. 167, 168 (2009)). 34
5

85, 111 (2007)); see also United States v. R.L.C., 503 U.S. 291, 305 (1992) (the rule of lenity applies to the severity of sentencing under the Sentencing Reform Act). This Court should provide scrupulous oversight where agency action implicates freedom.6 Second, the agency should be required to fully comply with procedures that assure reasoned decision-making where Congress has spoken on the identical issue and concluded that the identical class of prisoners is categorically eligible for the sentence reduction. Prisoners convicted of nonviolent offenses are eligible for the sentence reduction in 3621(e). As this Court held, relying in part on Stinson v. United States, 508 U.S. 36, 47 (1993), firearms possession by a felon is a nonviolent offense within the meaning of 18 U.S.C. 3621(e). Davis, 109 F.3d at 569 (citing Downey, 100 F.3d at 667) (citing United States v. Cantu, 12 F.3d 1506, 1513 (9th Cir. 1993))). The Court came to the same conclusion in construing 3621(e) to include drug traffickers who possessed a firearm as statutorily eligible, having been convicted of a categorically nonviolent offense. Downey, 100 F.3d at 668. From Lopez, we know that the agency has the power to create categorically ineligible groups within

As in Arrington, the BOPs manifest violation of the State Farm standard may make it unnecessary to reach the question whether promulgation of agency rules that restrict human freedom should be reviewed with special vigor. 516 F.3d at 1114 n.6 (citation omitted). 35

the universe of statutorily eligible prisoners. 531 U.S. at 244. But where Congress has spoken, the agency should provide a compelling rationale, supported by reviewable evidence, to exclude categorically eligible prisoners from the ability to earn a sentence reduction of up to one year. Third, in light of the BOPs history of violating the APA, the Court should require especially scrupulous compliance with the APAs requirements that administrative action be neutral, rational, and empirically supported. For almost 15 years, this Court has had to invalidate unlawful BOP rules that disqualified statutorily eligible prisoners situated identically to the petitioners in this case. In Downey and Davis, the Court struck down rules that erroneously categorized the same class of prisoners as persons convicted of a crime of violence. In Bowen, the Court struck down retroactive application of the October 1997 rules. In Paulsen, the Court struck down the October 1997 rules for violation of the notice-and-comment provisions of the APA. In Arrington, the Court struck down the 2000 rules on firearms possession as arbitrary and capricious. In Crickon, the Court struck down the 2000 rules on prior convictions as arbitrary and capricious. In the face of this unprecedented and welldocumented history of agency recalcitrance, the Court should demand rigorous compliance and compensatory clarity in promulgation of the rules covering the same subject matter. 36

Instead, the BOP provided virtually nothing except vague retooling of its previous litigation positions. In contrast, this Court in Crickon provided a clear road map for the type of administrative record needed to demonstrate a rational and reviewable basis for the agency action. 579 F.3d at 982. Rejecting cursory reasoning and failure to respond to comments, the Court listed the missing agency actions needed for compliance with the APA: It did not reference pertinent research studies, or case reviews. It did not describe the process employed to craft the exclusion. It did not articulate any precursor findings upon which it relied. It did not reveal the analysis used to reach the conclusion that the categorical exclusion was appropriate. Indeed, the administrative record is devoid of any substantive discussion of the rationale underlying the BOPs exercise of its discretion. As the Supreme Court held in Burlington Truck Lines, Inc. . . . where [t]here are no findings and no analysis . . . to justify the choice made, no indication of the basis on which the [agency] exercised its expert discretion[,] the APA will not permit us to accept the BOPs decision. Id. at 985 (citation omitted). Despite this Courts instruction regarding the

implementation of the same sentence reduction program, those words are as true of the 2009 BOP administrative record as they were of the 2000 BOP administrative record. Under standard 706 analysis, the 2009 BOP rules are invalid as arbitrary, capricious, an abuse of discretion, and not in accordance with law. In the special context of a sentence reduction program and exclusion of statutorily eligible 37

prisoners, the Court should provide heightened scrutiny for APA compliance. The history of APA violations and the lack of any remedial agency action further militates in favor of holding the agency to strict adherence to the requirements of 706 because the history of APA non-compliance makes it less likely that the resulting rule is reasoned and fair. C. The BOPs Legal Error And Conclusory Claim Regarding Its Experience Provide Inadequate Support For Disqualification Of Statutorily Eligible Firearms Possessors.

The program statements promulgated to implement the regulation perpetuated the legal error this Court corrected in Davis: 922(g) is not a crime of violence. Further, the BOP stated in the administrative record that, based on its experience, prisoners whose offenses involved the possession of firearms presented a public safety risk disqualifying them from early release consideration. 74 Fed. Reg. at 1895. Other than stating this conclusion, the administrative record fails to demonstrate that the BOP did anything more than adopt its prior litigation position in Lopez. Id. The agency did not point to any particular experience or expertise, set forth any facts it found, or provide a nexus between its experience and its conclusion that offenders who merely possess firearms pose a greater public safety risk. The BOP did not respond to comments recommending that the BOP distinguish between those whose offenses involved the carrying or possession from those who used firearms in their 38

offenses. While an agency may rely on its experience, an agency may not rely on unsupported conjecture to explain its decisions. California Energy Commn v. Bonneville Power Admin., 909 F.2d 1298, 1315 (9th Cir. 1990) (citing Natl Res. Def. Council, Inc. v. Herrington, 768 F.2d 1355, 1424 (D.C. Cir.1985)); Sacora, 628 F.3d at 1069. Because the explanation provided in the administrative record is legally tainted, contrary to law, inconsistent, and conclusory, supported only by a general invocation of experience, the rule does not withstand State Farm scrutiny. 1. The District Courts Finding That The BOPs Program Statement Perpetuated Legal Error Rendered The Rules Invalid In Their Entirety.

The district court held that the program statement implementing the categorization of offenses was invalid. ER 20 (The Court, however, finds the BOPs internal agency guideline associated with the 2009 regulation, Program Statement 5162.05, sec. 3 invalid under Ninth Circuit law to the extent that it categorizes a 922(g) (felon in possession) conviction as a crime of violence in all cases.). The BOP despite 15 years of litigation persisted in the position that 922(g) offenses categorically disqualified persons as violent offenders, notwithstanding this Courts direct holding to the contrary in Davis. In the context of the litigation history and the cursory claims regarding discretion, the BOPs legal error renders the rule-making invalid. 39

This Court has clearly recognized that agency legal errors invalidate rulemaking under 706. Crickon, 579 F.3d at 986; NEDC, 477 F.3d at 688. The legal error pervades the decision-making in three ways. First, the BOP failed to establish that the legal error did not taint the exercise of discretion in the parallel program statement. An exercise of discretion based on a legal error constitutes an abuse of discretion. See Koon v. United States, 518 U.S. 81, 100 (1996) (A district court by definition abuses its discretion when it makes an error of law.). There is no suggestion that the BOP ever embarked on a neutral and empirically-driven inquiry rather than implementing a rule at least influenced by, if not a complete adaptation, of the program statements legal error. Second, the rule-making involving mistaken legal predicates is not in accordance with law within the meaning of 706. There is no exception to the APA requirement that a decision infected by legal error should be considered invalid. The BOP did not provide any basis for the rule to survive the legal error under the demanding standard for procedural regularity. See Paulsen, 413 F.3d at 1006 (harmless error analysis focuses on process not result). Third, in the context of 15 years of litigation, the Court should recognize that we are not dealing with an agency applying its expertise: the agency appears to be litigating by other means through a sham administrative process. By engaging in 40

transparent and data-based rule-making, the BOP could establish that there is something other than vindication of a failed litigation position at stake. But that is not what happened here. The Court should invalidate the rules and require

promulgation of rules through an open and neutral procedure driven by data and studies, not conclusory claims inextricably enmeshed with the failed litigation position. As the district court found, the implementing program statement incorrectly perpetuated the legal error that began this litigation in 1995: the BOP designated 922(g) violations as categorical crimes of violence. ER 20. With no explanation, the effect of the legal error on the exercise of discretion action that is not in accordance with law under 706 cannot be determined. Perpetuation of the legal error through discretion would explain both the cursory explanation for the disqualification as well as the failure to refine a patently over-inclusive basis for exclusion. The district courts finding of legal error alone should have invalidated the 2009 rule. 2. The BOP Provided An Inadequate Explanation And No Empirical Evidence In Support Of Its Rule.

It is not enough that the BOP provided an explanation for the firearm exclusion, or even that a public safety rationale is arguably reasonable: the

41

explanation must be adequate. Crickon, 579 F.3d at 985; Arrington, 516 F.3d at 1115. In this case, the BOP failed to provide an adequate public safety rationale. The rationale appears to be a post hoc explanation developed in response to litigation, not the product of reasoned decision-making. The rationale also failed to distinguish between those who use and those who merely possess firearms, or to square its position with the extensive precedent that clearly distinguishes between use and possession. See Bailey v. United States, 516 U.S. 137, 143-51 (1995). The purported rationale is also internally inconsistent. The evolution of the firearm possession exclusion demonstrates that the public safety rationale merely continues a litigation position and is not the product of reasoned decision-making. Although the BOP has persistently taken the position that prisoners whose offenses involved firearms should be excluded from the sentence reduction, it took the BOP almost 15 years to articulate a public safety rationale in the administrative record. The BOPs mistaken characterization of firearm possession as a crime of violence continues into the present rule. ER 20. The BOP has never provided a sufficient explanation to contradict the obvious: the BOPs exercise of discretion is simply a perpetuation of its legal error identified in Davis. In response to Davis, the BOP sought to disqualify the same class of prisoners, with no opportunity for APA notice-and-comment, this time as an exercise of 42

discretion, not statutory construction. When the agencys statutory authority was upheld in Lopez, the BOP relied only on unexplained discretion to exclude otherwise eligible prisoners. 69 Fed. Reg. at 39888. It was only after this Courts decisions in Arrington and Crickon that the BOP abandoned its because we can reasoning and adopted its litigation position in Lopez. Nothing in the administrative record demonstrates that the public safety rationale is the product of considered judgment, following analysis of relevant factors. See Humane Society of United States v. Locke, 626 F.3d 1040, 1050 (9th Cir. 2010) (although agency offered an explanation, the rule was nonetheless invalid under 706 because the agency failed to cogently explain its findings or to reconcile its current findings with prior decisions). A more comprehensive explanation is particularly necessary because the BOPs conclusion contradicts this Courts finding that the offense of felon in possession is not categorically a violent offense. Davis, 109 F.3d at 569, see Downey, 100 F.3d at 668 (citing cases). The Sentencing Commission agrees that felon in possession of a firearm is categorically a nonviolent offense. U.S.S.G. 4B1.2 cmt. (n.1). In fact, the BOPs current position is contradicted by its own 2002 decision to discontinue

43

assigning a public safety factor for firearms possession in the security designation process. Program Statement 5100.07, Ch. 5 at p.12 (Sept. 12, 2006).7 The rationale is also inadequate because there is no indication that the BOP differentiated between those who used firearms and those who merely possessed them. State Farm, 463 U.S. at 48 (finding the agencys failure to consider

alternatives rendered the rule invalid under 706). Every day defendants appear in federal court charged with mere possession where the firearm was a hunting rifle, or innocuously present in a home, or being pawned or sold.8 A single bullet with no gun at all can constitute a 922(g) violation. Although the BOP received comment recommending that the rule distinguish between those who used firearms from those who merely possessed or carried, the BOP failed to respond. 74 Fed. Reg. at 1895. This Court approved of the exclusion of 924(c) offenders from early release eligibility because of the violence attendant with the combination of guns in furtherance of drug offenses. Warren, 185 F.3d at 1021-22. The BOPs

indiscriminate aggregation of all offenses involving firearms possession, without

7

Assignment of a public safety factor indicates that additional security measures are needed to ensure the safety and protection of the public. Program Statement 5100.07, Ch. 5 at 7. In fact the Guidelines have a specific offense characteristic for 922(g) violations involving firearms or ammunition possessed solely for lawful sporting purposes or collection. U.S.S.G. 2K2.1 (Nov. 2010). 44
8

distinction and with no explanation, violated its obligation to provide a reasoned explanation. See also Assn of Irritated Citizens v. EPA, 632 F.3d 584, 593 (9th Cir. 2011) (agencys discretion did not allow it to ignore strong evidence before it) (citing State Farm, 463 U.S. at 43)). The absence of any empirical data or studies is especially significant because the relevant information is readily available. Since 1995, hundreds of prisoners in Sheridan and facilities around the country have received sentence reductions notwithstanding their 922(g) convictions. Do those prisoners have recidivism or relapse rates significantly different from other eligible prisoners? From prisoners who were disqualified by the 922(g) convictions? This obvious and relevant data appears nowhere in the administrative record. In contrast to Sacora, where the BOPs halfway house experience was limited to six months, the BOP here has extensive experience under the Operations Memoranda implementing Downey, Davis, Paulsen, Arrington, and Crickon throughout the Ninth Circuit. The failure to access, or to even refer to, this available data renders the BOPs rule invalid for having failed to consider an important aspect of the problem. State Farm, 463 U.S. at 43. The BOPs proffered rationale is also internally inconsistent. Within the same Federal Register notice, the BOP claims without support that [t]here is a significant potential for violence from criminals who carry, possess or use firearms. 74 Fed. 45

Reg. at 1895. The BOP then claims that there is a significant potential for violence from criminals who carry, possess or use firearms while engaged in felonious activity. Id. (emphasis added). And finally, the BOP states that it is the specified elements of these offenses [which] pose a significant threat of dangerousness or violent behavior to the public. Id. (emphasis added). Even if the notice can be read to provide three separate rationales, each fails. While using firearms undoubtedly presents a significant potential for violence, mere possession does not. The Supreme Court recognized the distinction between use and possession of firearms in Bailey. Being a felon in possession of a firearm is not considered a crime of violence under the Guidelines or Ninth Circuit case law. U.S.S.G. 4B1.2 cmt. (n. 1) (Crime of violence does not include the offense of unlawful possession of a firearm by a felon.); Davis, 109 F.3d at 568-70; United States v. Canon, 993 F.2d 1439, 1441 (9th Cir. 1993) (holding that possession of a firearm by a felon is not a crime of violence). Similarly, the Ninth Circuit has held that a sentencing enhancement for weapons possession does not convert a nonviolent offense into a crime of violence. Downey, 100 F.3d at 668. The BOP has provided no explanation in support of its contrary conclusion. The second rationale based on possession of guns while engaged in felonious activity does not apply here, where the possession of a weapon is not connected 46

with any other offense. Section 922(g)(1) requires no act other than possession of the firearm . . . . Canon, 993 F.2d at 1441. On its face, the rule disqualifies persons, like the petitioners, to whom the purported rationale does not apply. The concerns expressed, to the extent considered in the absence of empirical data, are adequately addressed by the disqualification of persons with 924(c) convictions under Warren, which categorically disqualified persons convicted of offenses involving use of firearms. Finally, the BOP fails to identify any element of 922(g) that poses a significant threat of dangerousness. Section 922(g)(1) provides that it shall be unlawful for any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to possess in or affecting commerce, any firearm or ammunition. 18 U.S.C. 922(g)(1) (2006). The statute does not distinguish among prior felonies, which can range from undisputedly nonviolent offenses like tax evasion to murder. Further, the statute does not distinguish among ammunition, hunting rifles, and sophisticated weaponry. Most importantly, the statute does not require any other action beyond possession.

47

3.

The BOP Invocation Of Experience Without More Is Inadequate To Support Its Rule Disqualifying Statutorily Eligible Prisoners From The Sentence Reduction.

When there are no findings and analysis, there is insufficient indication of the basis on which the agency exercised its discretion: Expert discretion is the lifeblood of the administrative process, but unless we make the requirements for administrative action strict and demanding, expertise, the strength of modern government, can become a monster which rules with no practical limits on its discretion. State Farm, 463 U.S. at 48 (citations omitted). In this case, the BOP relies only on experience to support its conclusion. But reliance on experience in developing the rule requires identification of the sources of the experience so the agencys path can be discerned. The district court erred in accepting the BOPs invocation of its experience without more explanation of how and why the experience relates to mere possessors of firearms. The district court erred in relying on Sacora where the BOP invoked its experience to justify its rule limiting half-way house placement to six months absent extraordinary circumstances. Unlike the halfway house question, the BOP had a large trove of untapped RDAP data upon which an empirically-based decision could be made: the BOP could easily have quantified the results as to eligible 922(g) offenders but did not. Further, in Sacora, the BOP was making decisions within the 48

BOPs broad discretion for deciding where a prisoner should be placed in custody. See Smith v. Rodriguez, 541 F.3d 1180, 1186 (9th Cir. 2008) (noting the BOPs broad discretion to place prisoners under 18 U.S.C. 3621(b)). In contrast, the present case involves actual liberty in the sense of a sentence reduction (community corrections does not change the projected release date of the prisoner, as does the 3621(e) sentence reduction). Similarly, in Mora-Meraz v. Thomas, the foundation for the BOPs rule to require proof of drug abuse in the year prior to incarceration to qualify for RDAP was supported by factual findings through the agencys adoption of formally promulgated diagnostic criteria. 601 F.3d 933, 941 (9th Cir. 2010). Although the agencys logic was less than clear in both Sacora and MoraMeraz, the Court could trace the factors the BOP relied on and the decision reached. Here, the BOP has offered nothing in the administrative record that would allow the Court to identify what kind of experience the BOP relied upon. The district courts reliance on Sacora and Mora-Meraz was misplaced because the BOPs experience is neither readily discernable nor traceable to a particular program or source nor based on readily available data. The lack of clarity and specificity forecloses meaningful judicial review. Moreover, the BOP has not demonstrated expertise to which the Court should defer. The agency has provided no basis for its conclusory statements to elevate them 49

beyond mere lay opinion. As this Court recently noted: If the federal governments experts were always entitled to deference . . . , substantive relief against federal government policies would be nearly unattainable, as government experts will likely attest that the public interest favors the federal governments preferred policy, regardless of procedural failures. Sierra Forest Legacy v. Sherman, Nos. 09-17796, 10-15026, 2011 WL 2041149 *18 (9th Cir. May 26, 2011). A contrary approach would not simply render judicial review generally meaningless, but would be contrary to the demand that courts ensure that agency decisions are founded on a reasoned evaluation of the relevant factors. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989). Accordingly, reliance on the agencys unexplained experience is inadequate in determining whether the BOP considered the relevant factors in reaching its categorical conclusion that all possessors of guns are risks to public safety. Crickon, 579 F.3d at 985 ( 706 violated where BOP failed to reference pertinent research studies, or case reviews, or reveal the analysis used to reach the conclusion that the categorical exclusion was appropriate) (citing Burlington Truck Lines, Inc., 371 U.S. at 167). The unsupported claim of experience is especially inadequate where the BOPs rules include the legal error that 922(g) is categorically a crime of violence.

50

The administrative record in this case strongly suggests that the public safety rationale is a post hoc rationalization that must be viewed critically. Overton Park, 401 U.S. at 420. Although the public safety rationale cited in Lopez was not considered in Arrington because it was not a part of the administrative record, the same concerns arise in this context where the BOP simply cites to its own litigation position in Lopez, which was unsupported by any empirical evidence. The post hoc rationalization proffered in Lopez is indistinguishable from the post hoc rationalization offered in the administrative record here. In both instances, the BOP had an obligation to make reasoned decisions based on empirical evidence, especially given the hundreds of prisoners deemed eligible based on litigation since the first district court opinions invalidated the gun possessor disqualifications in 1996. Davis v. Crabtree, 923 F.Supp. 166 (D. Or. 1996); Downey v. Crabtree, 923 F.Supp. 164 (D. Or. 1996). As this Court noted in Crickon, an agency is required to support its conclusions with reviewable evidence: Aside from stating that it was promulgating 550.58(a)(1)(iv) as an exercise of its discretion to reduce a sentence, 65 Fed. Reg. at 80745, the BOP gave no indication of the basis for its decision. It did not reference pertinent research studies, or case reviews. It did not describe the process employed to craft the exclusion. It did not articulate any precursor findings upon which it relied. It did not reveal the analysis used to reach the conclusion that the categorical exclusion was 51

appropriate. Indeed, the administrative record is devoid of any substantive discussion of the rationale underlying the BOPs exercise of its discretion. As the Supreme Court held in Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167 (1962), where [t]here are no findings and no analysis . . . to justify the choice made, no indication of the basis on which the [agency] exercised its expert discretion[,] the APA will not permit us to accept the BOPs decision. 579 F.3d at 985. Because the BOP has provided no evidence upon which it based its conclusion that felons in possession of a firearm pose a significantly greater risk of violence, the public safety rationale appropriated from Lopez should be rejected. D. The BOPs Rules Continue To Violate The APA By Disqualifying Offenders With Certain Prior Convictions.

The administrative record for the 2009 rule relating to prior convictions is no more adequate than the record found lacking in Crickon. There, this Court found that, [b]eyond explaining that it decided upon the four identified categories of [prior] convictions [listed in the UCR Index] because of the variation in violence level that may be found in state convictions, the BOP provided no explanation for its decision to look to prior convictions as the appropriate basis to determine categorical exclusions. Crickon, 579 F.3d at 984 (citation omitted). The Court also noted that the rule must be invalidated because it relied on incorrect information regarding inclusion of stale convictions in the presentence report. Id. at 987 (citing Nw. Coalition for Alternatives to Pesticides v. EPA, 544 F.3d 1043, 1052 n.7 (9th Cir.

52

2008) ([W]here the agencys reasoning is irrational, unclear, or not supported by the data it purports to interpret, we must disapprove the agencys action.)). In

promulgating the 2009 rule, the BOP again relied on the UCR Index to identify which prior convictions categorically disqualify prisoners from the incentive, but offered no explanation for why it looked to prior convictions at all, much less stale ones. Just as in Crickon, because the BOP failed to articulate in the administrative record the rational underlying its decision to adopt a categorical exclusion of inmates with specific prior convictions . . . , [the] promulgation of the categorical exclusion in [ 550.55 does] not comply with the APA. 579 F.3d at 987. 1. The BOPs Reliance On The Uniform Crime Reporting Index Does Not Provide An Adequate Basis For The Disqualification Based On Even Stale Prior Convictions.

In promulgating the 2009 rules, the BOPs rationale for categorical disqualification based on prior convictions, regardless of staleness, is inconsistent with the source cited. First, the BOP initially mischaracterized the UCR Index as the FBI Violent Crime Index in 1995. 60 Fed. Reg. at 27695. Second, contrary to the BOPs interpretation, the chosen offenses were not identified in the UCR due to their inherently violent nature and particular dangerousness to the public. 74 Fed. Reg. at 1894. Accordingly, reliance on the UCR does not support the conclusion that the commission of such offenses rationally reflects the view that such inmates displayed 53

readiness to endanger the public. As the Court in Crickon invalidated the 2000 rule because BOP mistakenly believed that only offenses less than 15 years old were included in the presentence report, the Court should invalidate the 2009 rule because the BOP mistakenly attributed characteristics not incorporated in the formulation of the UCR. The UCR program, which began in 1927, was only intended to collect uniform crime statistics. The 2004 Uniform Crime Reporting Handbook describes the process by which the crimes to be reported were selected: The committee [on Uniform Crime Records] first determined that the number of offenses known to law enforcement, whether or not there was an arrest, would be the most appropriate measure of the Nations criminality. Next, the members evaluated various crimes on the basis of their seriousness, frequency of occurrence, pervasiveness in all geographic areas of the country, and likelihood of being reported to law enforcement. Based on this assessment, the Committee identified seven crimes to be reported to the national Program: felonious homicide, rape, robbery, aggravated assault, burglary/breaking or entering, larceny-theft, and auto theft. FBI Uniform Crime Reporting Handbook, 2 (2004).9 In a 2009 report, the FBI reiterated that Part I offenses were chosen because they are serious crimes, they

Available at http://www.fbi.gov/about-us/cjjs/ucr/additional-ucr-publications/ ucr_handbook.pdf 54

occur with regularity in all areas of the country, and they are likely to be reported to police. Offense Definitions, Crime in the United States, 1 (2009).10 In contrast to the reasons given by the UCR committee, the BOP claims that the UCR Part I offenses were chosen due to their inherently violent nature and particular dangerousness to the public. 74 Fed. Reg. at 1894. The district court accepted this explanation with a twist: the district court violated the well-established rule that a court may not supply its own rationale for agency action (Humane Society, 626 F.3d at 1048 (citing Sec. and Exch. Commn v. Chenery Corp., 332 U.S. 194, 196 (1947))), by examining the UCR definition of violent crime in a manner outside the administrative record. The district court reviewed the list of offenses initially identified by the BOP and concluded that it was reasonable for the BOP to conclude the past commission of a violent offense, no matter how long ago, rationally reflects the view that such inmates displayed a readiness to endanger the public. ER 19; see also 74 Fed. Reg. at 1894. However, there is no support for these assertions. There is simply no evidence that the authors of the UCR considered dangerousness and violence when choosing which offenses were to be reported in Part I. Inclusion of larceny-theft and auto theft, and the omission of kidnaping, in

Available at http://www2.fbi.gov/ucr/cius2009/documents/ 09offensedefintions.pdf. 55

10

Part I offenses, coupled with the inclusion of sex offenses in Part II, belies the claim that violence and dangerousness were considerations in the development of the UCR Part I offense compilation. Moreover, the UCRs definition of violent crime is irrelevant to the question before this Court. There is no rational connection between the UCR factors the BOP examined and the conclusions it reached. Just as with the still-uncorrected legal error in the last rules, the BOPs incorrect reading of the UCR renders the rules arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. Crickon, 579 F.3d at 987; NEDC, 477 F.3d at 688. The BOP claims that the commission of such offenses rationally reflects the view that such inmates displayed readiness to endanger the public. 74 Fed. Reg. at 1894. As was the case in Crickon, the BOPs failure to provide evidence in support of this supposition invalidates the rule. See Burlington Truck Lines, 371 U.S. at 167. The BOPs conclusion is also undermined by the UCRs broad definitions of the offenses. Included in the types of robberies that are required to be reported are pursesnatching and aggravated shop-lifting. Uniform Crime Reporting Handbook, supra at 23. Similarly, the definition of aggravated assault is not tied to the prisoners readiness to endanger the public, but rather to the seriousness of the injury. Id. at 27 (Often, . . . the extent of the injury sustained will be the deciding factor in distinguishing aggravated from simple assault.). 56

Significantly, the BOP does not mention, much less articulate, a rational connection between a past readiness to endanger the public regardless of how long ago and current dangerousness that would justify the categorical exclusion. Under the BOPs rule, a barroom fight occurring 30 years ago that resulted in an aggravated assault conviction would categorically exclude a prisoner, even though there had been no intervening incidents of violence. Program Statement 5331.02 at 4. The Sentencing Commission determined that stale convictions do not have sufficient probative value to provide the basis for criminal history points. U.S.S.G. 4A1.2(e). This determination constitutes an unrebutted starting point for

establishing that stale convictions show no readiness to endanger the public. As with the rule invalidated in Crickon, in promulgating this rule, [t]he BOP offered absolutely no rationale for its decision to use the inmates criminal history as a surrogate for early release ineligibility. 579 F.3d at 984. The 2009 rule is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 2. The District Court Erred In Supplying A Rationale Not Offered By The Agency.

The district court may not supply an explanation for a rule not considered by the agency itself. Arrington, 516 F.3d at 1112; Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc). The district court in this case erred by ascribing

57

a rationale for the agency that it did not identify, which also evidences the inadequacy of the BOPs rationale. The BOP relied on the UCR classification of Part I offenses in selecting which offenses would be disqualifying. 74 Fed. Reg. at 1894. As noted above, Part I offenses include both violent and nonviolent offenses and were not selected due to their inherently violent nature. The district court, on the other hand, found that the BOP considered four offenses the UCR identifies as violent crimes, as well as arson, kidnapping, and child sex abuse. ER 44. The court then undertook an independent examination of the UCR definition of violent offense to conclude that it was reasonable for the BOP to conclude the past commission of a violent offense, no matter how long ago, rationally reflects the view that such inmates displayed a readiness to endanger the public. ER 44-45 (citing 74 Fed.Reg. at 1894). The UCR definition of violent crime is not at issue the administrative record provides no indication that the BOP ever considered it and should not have been considered by the district court in its analysis. E. In Promulgating The 2009 Rules, The BOP Failed To Consider Congresss Intention To Maximize Use Of The Incentive.

As this Court noted in Crickon, the BOPs categorical disqualification based on prior convictions was difficult to square with Congresss expressed intent to

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provide an incentive to encourage maximum participation in the BOPs substance abuse programs. 579 F.3d at 986. Congress recently reiterated that it intended the BOP to administer RDAP in a manner to maximize the early release incentive and to reduce the prison population. CAA of 2010 at H13887. Yet, the BOP did not explain why it chose to disqualify broad classes of statutorily eligible prisoners, nor did the agency balance the factors favoring broad eligibility for the sentence reduction. The BOP therefore entirely failed to consider an important aspect of the problem. State Farm, 463 U.S. at 43. Despite Congresss explicit directive to maximize the sentence reduction benefit opportunities, the disqualification of statutorily eligible prisoners from the sentence reduction does just the opposite. The failure of the BOP to even address this aspect of the problem is especially inexplicable because the BOPs Director stated that the BOP is committed to use[] all of the tools at its disposal to ensure that inmates earn as much good time as is allowed under the law in order to reduce crowding in prisons. Lappin Statement, supra at 3-4. Disqualification based on firearm possession or stale prior convictions, with no consideration of countervailing rationales for rejecting or narrowing the scope of the disqualification, cannot be squared with Congresss expressed intent. The failure to even mention the intent to

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maximize sentence reductions invalidates the rule. Irritated Citizens, 632 F.3d at 593 (ignoring a relevant factor invalidates a rule). Conclusion For the foregoing reasons, this Court should reverse the district court judgments and remand the cases for grant of writs of habeas corpus and for appropriate remedies to be fashioned as law and justice require under 28 U.S.C. 2243. Respectfully submitted: August 1, 2011.

/s/ Stephen R. Sady Stephen R. Sady Attorney for Petitioner-Appellant

On the brief: Lynn Deffebach Research and Writing Attorney

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IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

LONNIE PECK,

v. J. E. THOMAS,

) ) Petitioner-Appellant, ) ) ) ) ) ) Respondent-Appellee.)

CA No. 11-35283 (Lead) 11-35296, 11-35355, 11-35489

STATEMENT OF RELATED CASES

I, Stephen R. Sady, undersigned counsel of record for petitioner-appellant, Lonnie Peck, state pursuant to the Ninth Circuit Court of Appeals Rule 28-2.6, that I know of no other cases that should be deemed related except the consolidated cases. Dated: August 1, 2011.

/s/ Stephen R. Sady Stephen R. Sady Attorney for Petitioner-Appellant

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IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LONNIE PECK, ) ) Petitioner-Appellant, ) ) ) ) ) ) Respondent-Appellee.)

CA No. 11-35283 (Lead) 11-35296, 11-35355, 11-35489

v. J. E. THOMAS,

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(B), I certify that: 1. This brief complies with the type-volume limitation because it contains

13,779 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using 14-point Times New Roman font. Dated: August 1, 2011. /s/ Stephen R. Sady Stephen R. Sady Attorney for Petitioner-Appellant 62

CERTIFICATE OF SERVICE I hereby certify that on August 1, 2011, I electronically filed the foregoing Opening Brief of Appellant with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

/s/ Jill C. Dozark Jill C. Dozark

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