US Supreme Court Briefs

No. 99-7504


In the Supreme Court of the United States

CHRISTOPHER A. LOPEZ, PETITIONER

v.

RANDY J. DAVIS, WARDEN, ET AL.


ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT


BRIEF FOR THE RESPONDENTS


SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
BETH S. BRINKMANN
Assistant to the Solicitor
General
THOMAS M. GANNON
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the Bureau of Prisons may exercise its discretion under 18 U.S.C.3621(e)(2)(B) to deny eligibility for early release from custody, basedon the successful completion of a substance abuse treatment program, tothe category of prisoners whose current offense is a felony that "involvedthe carrying, possession, or use of a firearm." 28 C.F.R. 550.58(a)(1)(vi)(B).


In the Supreme Court of the United States

No. 99-7504

CHRISTOPHER A. LOPEZ, PETITIONER

v.

RANDY J. DAVIS, WARDEN, ET AL.


ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT


BRIEF FOR THE RESPONDENTS


OPINIONS BELOW

The opinion of the court of appeals (J.A. 23-28) is reported at 186 F.3d1092. The opinion of the district court (J.A. 8-20) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on August 10, 1999. A petitionfor rehearing was denied on September 16, 1999 (J.A. 29). The petition fora writ of certiorari was filed on December 15, 1999, and was granted onApril 24, 2000. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).

STATUTORY AND REGULATORY
PROVISIONS INVOLVED

1. Section 3621(e) of Title 18 of the United States Code provides in relevantpart:

(e) SUBSTANCE ABUSE TREATMENT.-

(1) PHASE-IN.-In order to carry out the requirement of the last sentenceof subsection (b) of this section, that every prisoner with a substanceabuse problem have the opportunity to participate in appropriate substanceabuse treatment, the Bureau of Prisons shall, subject to the availabilityof appropriations, provide residential substance abuse treatment (and makearrangements for appropriate aftercare)-

(A) for not less than 50 percent of eligible prisoners by the end of fiscalyear 1995, with priority for such treatment accorded based on an eligibleprisoner's proximity to release date;

(B) for not less than 75 percent of eligible prisoners by the end of fiscalyear 1996, with priority for such treatment accorded based on an eligibleprisoner's proximity to release date; and

(C) for all eligible prisoners by the end of fiscal year 1997 and thereafter,with priority for such treatment accorded based on an eligible prisoner'sproximity to release date.

(2) INCENTIVE FOR PRISONERS' SUCCESSFUL COMPLETION OF TREATMENT PROGRAM.-

(A) GENERALLY-Any prisoner who, in the judgment of the Director of the Bureauof Prisons, has successfully completed a program of residential substanceabuse treatment provided under paragraph (1) of this subsection, shall remainin the custody of the Bureau under such conditions as the Bureau deems appropriate.If the conditions of confinement are different from those the prisoner wouldhave experienced absent the successful completion of the treatment, theBureau shall periodically test the prisoner for substance abuse and discontinuesuch conditions on determining that substance abuse has recurred.

(B) PERIOD OF CUSTODY.-The period a prisoner convicted of a nonviolent offenseremains in custody after successfully completing a treatment program maybe reduced by the Bureau of Prisons, but such reduction may not be morethan one year from the term the prisoner must otherwise serve.

2. Section 550.58 of Title 28 of the Code of Federal Regulations providesin relevant part:

Consideration for early release.

* * * * *

(a) Additional early release criteria. (1) As an exercise of the discretionvested in the Director of the Federal Bureau of Prisons, the following categories of inmates are noteligible for early release:

* * * * *

(vi) Inmates whose current offense is a felony:

* * * * *

(B) That involved the carrying, possession, or use of a firearm or otherdangerous weapon or explosives (including any explosive material or explosivedevice) * * * .

3. The Bureau of Prisons' Program Statement 5162.04 (Oct. 9, 1997) is reproducedin the appendix to petitioner's brief at Pet. Br. App. 29-54.

STATEMENT

Section 3621(e)(2)(B) of Title 18 of the United States Code provides thatthe Bureau of Prisons (BOP or Bureau) may reduce by up to one year the prisonterm of a prisoner convicted of a nonviolent offense who successfully completesa substance abuse treatment program. Petitioner was denied eligibility forsuch early release by the application of a BOP regulation, 28 C.F.R. 550.58(a)(1)(vi)(B),and BOP Program Statement 5162.04 (Oct. 9, 1997), which implement Section3621(e)(2)(B). The basis for that denial was that his current offense isa felony that involved the carrying, possession, or use of a firearm. TheUnited States District Court for the District of South Dakota held thatthe Bureau's interpretation of Section 3621(e)(2)(B) is inconsistent withthe language of the statute, and it ordered the Bureau to reconsider petitionerfor early release in accordance with the court's opinion. J.A. 8-20. Thecourt of appeals reversed and upheld the Bureau's regulation and ProgramStatement 5162.04 as an appropriate exercise of discretion under Section3621(e)(2)(B). J.A. 23-28.

1. a. In 1990, Congress amended Section 3621 of Title 18 of the United StatesCode to require that the Bureau "make available appropriate substanceabuse treatment for each prisoner the Bureau determines has a treatablecondition of substance addiction or abuse." 18 U.S.C. 3621(b). In 1994,Congress created an incentive for federal prisoners to participate in BOP'sresidential substance abuse treatment program.1 Congress amended Section3621 of Title 18 of the United States Code to provide, inter alia, thatBOP may reduce a prisoner's sentence by up to one year if the prisoner isconvicted of a nonviolent offense and successfully completes BOP's residentialsubstance abuse treatment program. See Violent Crime Control and Law EnforcementAct of 1994, Pub. L. No. 103-322, Tit. III, Subtit. T, § 32001, 108 Stat. 1896-1898 (1994 Crime Control Act). Section3621(e) provides, in relevant part:

SUBSTANCE ABUSE TREATMENT.-

* * * * *

(2) INCENTIVE FOR PRISONERS' SUCCESSFUL COMPLETION OF TREATMENT PROGRAM.-

* * * * *

(B) PERIOD OF CUSTODY.-The period a prisoner convicted of a nonviolent offenseremains in custody after successfully completing a treatment program maybe reduced by the Bureau of Prisons, but such reduction may not be morethan one year from the term the prisoner must otherwise serve.

18 U.S.C. 3621(e).

b. In May 1995, the Bureau amended its rule on drug abuse treatment programsto implement Section 3621(e)(2)(B). The amended rule allowed considerationof early release of prisoners who met the statutory prerequisites of successfulcompletion of a treatment program and conviction of a nonviolent offense.60 Fed. Reg. 27,692-27,695. The rule provided that a prisoner who completeda residential substance abuse treatment program may be eligible for earlyrelease unless, inter alia, the prisoner's "current offense is determinedto be a crime of violence as defined in 18 U.S.C. 924(c)(3)." 28 C.F.R.550.58 (1995).2 Section 924(c)(3) defined "crime of violence"to mean a felony that "has as an element the use, attempted use, orthreatened use of physical force against the person or property of another,"or that "by its nature, involves a substantial risk that physical forceagainst the person or property of another may be used in the course of committingthe offense." 18 U.S.C. 924(c)(3).

On July 24, 1995, the Bureau issued Program Statement 5162.02,3 to implementprovisions of the 1994 Crime Control Act relating to the notification ofrelease of prisoners, credit of "[g]ood [t]ime," and substanceabuse treatment programs, all of which made reference to "nonviolentoffense" or "crime of violence." Pet. Br. App. 7. The programstatement defined "crime of violence" as it was used in thosestatutory provisions and provided a framework to assist BOP employees indetermining which criminal offenses fell within the definitions. Ibid. Theprogram statement included as a crime of violence a drug trafficking convictionunder 21 U.S.C. 841 (except for 841(e)) or 846, if the inmate received atwo-level increase in his offense level under Sentencing Guidelines §§2D1.1, 2D1.11, for possession of a dangerous weapon during commission ofthe offense. Pet. Br. App. 17-18, 20, 23.

The courts of appeals reached differing conclusions on the validity of theBureau's 1995 regulation and Program Statement 5162.02. Two courts of appealsfound the Bureau's definition of a crime of violence to be reasonable. SeePelissero v. Thompson, 170 F.3d 442, 445-446 (4th Cir. 1999) (BOP's definitionof crime of violence to include drug offenses that involved possession ofa firearm is permissible and reasonable interpretation of early releasestatute, although definition may not harmonize with judicial interpretationsof "crime of violence" under Section 924(c)(3)); Venegas v. Henman,126 F.3d 760, 763 (5th Cir. 1997) (BOP reasonably interpreted Section 3621(e)(2)(B)to allow it to determine what offenses are violent for purposes of thatstatute), cert. denied, 523 U.S. 1108 (1998). Other courts, however, foundthat the Bureau's definition conflicted with the statutory text. See Fristoev. Thompson, 144 F.3d 627, 631 (10th Cir. 1998) (BOP's interpretation of"nonviolent offense" violated the plain language of Section 3621(e)(2)(B)which "does not permit resort to sentencing factors or sentencing enhancementsattached to the nonviolent offense"); Byrd v. Hasty, 142 F.3d 1395,1398 (11th Cir. 1998) ("BOP exceeded its statutory authority when itcategorically excluded from eligibility those inmates convicted of a nonviolentoffense who received a sentencing enhancement for possession of a firearm.");Bush v. Pitzer, 133 F.3d 455, 456-457 (7th Cir. 1997) (BOP's Program Statement5162.02 adopted "overbroad definition of a violent offense," butBOP's current regulation rationally denies early release to prisoners whoseunderlying conduct is violent or prone to violence); Martin v. Gerlinski,133 F.3d 1076, 1079 (8th Cir. 1998) (BOP's "inclusion of sentencingenhancement factors in the determination of what is a 'nonviolent offense'"is in conflict with the plain language of the statute which uses the term"convicted"); Roussos v. Menifee, 122 F.3d 159, 161-164 (3d Cir.1997) (BOP interpretation of "nonviolent offense" is in conflictwith statute and regulation); Downey v. Crabtree, 100 F.3d 662, 668 (9thCir. 1996) (rejecting BOP's interpretation because statute "addressesthe act of convicting, not sentencing or sentence-enhancement factors").

c. Effective October 9, 1997,4 the Bureau again revised its rule on drugabuse treatment programs "to demonstrate more clearly the discretiongranted to the Director of the Bureau of Prisons under 18 U.S.C. 3621(e)by listing t> Transfer interrupted! mate from receiving a sentencereduction as determined by the Director of the Bureau of Prisons."62 Fed. Reg. 53,690.5 In the introduction to the rule, the Bureau Directornoted that, because of differing holdings in the federal courts on the effectof BOP's reliance on 18 U.S.C. 924(c)(3) to define the term "crimeof violence," some crimes were not clearly covered by BOP's definition.62 Fed. Reg. at 53,690. The rule "avoid[ed] this complication by usingthe discretion allotted to the Director of the Bureau of Prisons in grantinga sentence reduction to exclude inmates whose current offense is a felony"that, inter alia, "involved the carrying, possession, or use of a firearm."Ibid.

As revised, BOP's current regulation provides that an inmate may be eligiblefor early release if the inmate was sentenced for a nonviolent offense,is determined to have a substance abuse problem, and successfully completesa residential substance abuse treatment program. 28 C.F.R. 550.58. The regulationfurther provides, however, that "[a]s an exercise of the discretionvested in the Director of [BOP]," certain categories of inmates arenot eligible for early release. 28 C.F.R. 550.58(a). Those categories arenot identified by incorporating the definition of a crime of violence setforth in 18 U.S.C. 924(c)(3) (1994 & Supp. IV 1998). Rather, the ruleenumerates the categories. The categories include inmates whose currentoffense is a felony that involved carrying, possession, or use of a firearm(or other dangerous weapon or explosive), as well as inmates who committeda felony that falls into one of three other categories-two of which correspondto the provisions in 18 U.S.C. 924(c)(3) (1994 & Supp. IV 1998), andone that applies to inmates whose offense, "by its nature or conductinvolves sexual abuse offenses committed upon children." 28 C.F.R.550.58(a)(vi)(A)-(D). The regulation also continues to exclude from eligibilityfor early release inmates in the other categories defined in the 1995 regulation.See note 2, supra.

On October 9, 1997, the Bureau promulgated Program Statement 5162.04 (Pet.Br. App. 29-54) to assist its employees in implementing various policiesand programs. The statement lists in Section 6 offenses that the Bureaucategorizes as "crimes of violence as that term is used in variousstatutes," and lists in Section 7 "offenses that in the Director'sdiscretion shall preclude an inmate's receiving certain Bureau program benefits."Id. at 29. The Bureau explained that Section 7 "lists offenses thatare not categorized as crimes of violence, but would nevertheless precludean inmate's receiving certain Bureau program benefits at the Director'sdiscretion." Id. at 30. It further explained that some BOP policiesor programs, such as the one governing inmate discipline and special housingunits, require a determination that an inmate committed a crime of violence,but others, such as the one governing early release under 18 U.S.C. 3621(e)(2)(B),also allow denial of the benefit in the discretion of the BOP Director.Pet. Br. App. 30-31. The introductory portion of Section 7 of Program Statement5162.04 provides that,

[a]s an exercise of the discretion vested in the Director, an inmate servinga sentence for an offense that falls under the provisions described belowshall be precluded from receiving certain [BOP] program benefits.

Inmates whose current offense is a felony that:

* * * * *

involved the carrying, possession, or use of a firearm or other dangerousweapon or explosives * * *.

Id. at 40-41.

Subsection 7(b) further specifies that certain offenses may or may not precludebenefits in the Director's discretion, depending on whether the offenseinvolved certain characteristics that reflect that the offense was committedwith force. Pet. Br. App. 44. Program Statement 5162.04 indicates that thedanger of violence is increased "when drug traffickers possess weapons"during the commission of a drug felony in violation of 21 U.S.C. 841(a).Pet. Br. App. 44. Thus, under Section 7(b) of Program Statement 5162.04,the BOP Director declines, as a matter of discretion, to grant early releaseto an inmate who was convicted under 21 U.S.C. 841 (except subsection (e))and 846 (1994 & Supp. IV 1998), if he received a two-level increasein his offense level under Sentencing Guidelines § 2D1.1 for carrying,possession or use of a firearm. Pet. Br. App. 44, 48. See also Program Statement5330.10, CN-03, ch. 6, at 1-2 (Oct. 9, 1997) (implementing early releaseincentive in drug abuse treatment program in accordance with 28 C.F.R. 550.58as amended and Program Statement 5162.04).

2. On February 21, 1997, petitioner was convicted in the United States DistrictCourt for the Southern District of Iowa of possession of methamphetaminewith intent to distribute it, in violation of 21 U.S.C. 841(a)(1). He wassentenced to 72 months' imprisonment. That sentence was based in part ona two-level enhancement of petitioner's offense level under Sentencing Guidelines§ 2D1.1(b)(1) because petitioner possessed a firearm in connectionwith his offense. Presentence Report 4, ¶ 7; id. at 6, ¶ 17; J.A.9.

We have been informed that, while serving his term of imprisonment, petitionerobtained a place on a waiting list to participate in a BOP residential drugabuse treatment program. On December 21, 1998, petitioner was notified thathe qualified for participation in that program, but that it appeared thathe was not provisionally eligible for early release upon completion of theprogram because his current offense is one that the BOP Director, in herdiscretion, has identified as an offense that excludes him from early release.J.A. 5-7. The currently scheduled date for petitioner's release from prison,taking into account good conduct time, is June 2, 2002. Pet. 3.

3. Petitioner filed a petition for a writ of habeas corpus under 28 U.S.C.2241 in the United States District Court for the District of South Dakota,challenging the provisional denial of his early release. J.A. 8. On January6, 1999, the district court granted the petition for habeas relief. J.A.8-20.

The district court held that the Bureau "may not, in the first instance,exclude those convicted of nonviolent offenses from early release consideration."J.A. 17. The court reasoned that the Bureau's interpretation of 18 U.S.C.3621(e)(2)(B), as reflected in its current regulation, 28 C.F.R. 550.58,and Program Statement 5162.04, is inconsistent with the statutory languagebecause it allows the Bureau "to rely upon factors other than whetherthe crime of conviction was nonviolent in making the initial determinationas to whether a prisoner is eligible to be considered for early releaseunder section 3621(e)(2)(B)." J.A. 18.

The district court recognized that Section 3621(e)(2)(B) allows the Bureauto exercise discretion to determine who should be granted early release,but concluded that the Bureau cannot exercise its discretion to deny "recognitionof eligibility" to inmates who are eligible for consideration underthe statute. J.A. 19. The court declared that "[t]he exercise of discretionrequires a careful consideration of each individual case." Ibid. Itconcluded that the categorical denial of early release to "all caseswithin one general group without individual consideration" was notan exercise of discretion. Ibid. The court ordered BOP to reconsider petitionerfor early release under Section 3621(e)(2)(B) in accordance with its opinion.Ibid.

4. The court of appeals reversed. J.A. 23-28.6 The court emphasized thatSection 3621(e)(2)(B) "vests broad discretion in the BOP to determinewhich individuals, among the group of statutorily eligible inmates convictedof nonviolent offenses, are appropriate candidates for early release."J.A. 25. The court observed that the statutory language is discretionaryand does not mandate that BOP grant early release to any individual or groupof prisoners. J.A. 26. Moreover, the court concluded that Section 3621(e)(2)(B)does not "mandate that the BOP exercise its discretion by making individual,rather than categorical, assessments of eligibility for inmates convictedof nonviolent offenses." J.A. 26. It noted that, "[i]n fact, Congressexpected the BOP to make early-release determinations 'based on criteriato be established and uniformly applied.'" Ibid. (citing H.R. Rep.No. 320, 103d Cong., 1st Sess. 6 (1993)).

The court of appeals further reasoned that, to the extent that Congressleft a gap in the statute for BOP to fill, deference is owed BOP's interpretationunder Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467U.S. 837, 843-845, 866 (1984), if the interpretation constitutes a permissibleconstruction of the statute. J.A. 26. The court observed that BOP had exerciseddiscretion to exclude from eligibility for early release certain categoriesof prisoners convicted of nonviolent offenses because "their underlyingconduct indicates that they pose a serious risk to public safety."J.A. 26-27. That decision, the court concluded, "represent[ed] a manifestlypermissible construction of the statute and an appropriate exercise of theBOP's discretion." J.A. 26-27.

The court of appeals rejected the contention that BOP's current regulationand Program Statement 5162.04 are contrary to its earlier decision in Martin,133 F.3d at 1079-1081, which invalidated BOP's 1995 regulation and ProgramStatement 5162.02. The court explained that, in Martin, it addressed onlyBOP's attempt to interpret the statutory term "nonviolent offense."The Martin court did not address whether "BOP may, as an exercise ofits discretion, see 28 C.F.R. § 550.58(a)(1), look to sentencing factorsin deciding which individuals among statutorily eligible inmates are appropriatecandidates for early release." J.A. 27. Facing that issue, the courtof appeals held that such an exercise of discretion is permissible. J.A.27.

SUMMARY OF ARGUMENT

As an incentive to encourage prisoners with a substance abuse problem toparticipate in drug treatment programs while in prison, Congress provideda limited opportunity for the Bureau of Prisons to reduce an inmate's termof imprisonment under 18 U.S.C. 3621(e)(2)(B). Congress also vested theBureau with broad discretion to determine which of the prisoners who meetthe statutory prerequisites of Section 3621(e)(2)(B) (serving a sentencefor a nonviolent offense and completion of a substance abuse program) shouldbe granted early release. The statutory language is clear that a grant ofearly release is not mandatory for a prisoner who meets the statutory prerequisites.It provides that the prison term of a prisoner convicted of a nonviolentoffense who successfully completes a drug treatment program "may bereduced by the Bureau of Prisons," by up to one year. 18 U.S.C. 3621(e)(2)(B).The structure and history of the statute confirm the discretionary natureof the authority accorded the Bureau to grant early release.

The Bureau validly exercised its discretion in a categorical manner throughpromulgation of a regulation, 28 C.F.R. 550.58(a)(1)(vi)(B), and ProgramStatement 5162.04. Under those provisions, BOP denies early release to prisoners,including petitioner, whose current offense is a felony that involved thecarrying, possession, or use of a firearm. That exercise of discretion doesnot contradict the statute. Congress limited early release to prisonersconvicted of a nonviolent offense, but Congress did not intend that allprisoners convicted of a nonviolent offense must be found eligible for theincentive. Rather, Congress vested the Bureau with discretion to grant ordeny early release to prisoners convicted of a nonviolent offense. BOP validlyexercised discretion to deny early release to certain groups of prisonerson a categorical basis. That action is consistent with the statutory textand legislative purpose, as well as with well-established administrativelaw principles. See, e.g., American Hosp. Ass'n v. NLRB, 499 U.S. 606, 612(1991); INS v. Yang, 519 U.S. 26 (1996). Moreover, the categorical denialof early release to the group involved here-prisoners whose felony convictioninvolved the carrying, possession, or use of firearm-constitutes a soundexercise of BOP's discretion, because of the increased potential of dangerto public safety that such prisoners exhibit.

ARGUMENT

THE DIRECTOR OF THE BUREAU OF PRISONS DID NOT ABUSE HER DISCRETION IN CATEGORICALLYDENYING EARLY RELEASE UNDER 18 U.S.C. 3621(e)(2)(B) TO PRISONERS, INCLUDINGPETITIONER, WHOSE CURRENT OFFENSE IS A FELONY THAT INVOLVED THE CARRYING,POSSESSION, OR USE OF A FIREARM

A. Section 3621(e)(2)(B) Commits To The Discretion Of The Bureau Of PrisonsThe Determination Of Which Prisoners Who Satisfy The Statutory PrerequisitesFor Early Release Are Granted Such Release

1. Section 3621(e)(2)(B) states that the period a prisoner convicted ofa nonviolent offense remains in custody after his successful completionof a BOP substance abuse treatment program "may be reduced by the Bureauof Prisons" by up to one year. By using the term "may," Congressplaced the ultimate decision whether to grant a prisoner early release inthe discretion of the Bureau. "The word 'may,' when used in a statute,usually implies some degree of discretion." United States v. Rodgers,461 U.S. 677, 706 (1983); Cortez Byrd Chips, Inc. v. Harbert Constr. Co.,120 S. Ct. 1331, 1336 (2000) (citing Rodgers). Although that "common-senseprinciple of statutory construction" can be "defeated by indicationsof legislative intent to the contrary or by obvious inferences from thestructure and purpose of the statute," Rodgers, 461 U.S. at 706, thatis not the case here. The structure, purpose, and history of Section 3621(e)(2)(B)all compel a reading of the statutory text that is consistent with the usualmeaning of "may."

The text of Section 3621(e)(2)(B) places two conditions on the Bureau'sauthority to grant early release: (1) the prisoner must be serving a sentencefor a nonviolent offense, and (2) he must successfully complete a substanceabuse treatment program. Section 3621(e)(2)(B) does not mandate that earlyrelease be granted to all prisoners who meet the statutory prerequisites.Nor does it place restrictions on the factors that may be considered bythe Bureau in exercising its discretion whether to grant early release toprisoners who satisfy the statutory prerequisites.

The discretionary nature of the authority accorded the Bureau under Section3621(e)(2)(B) is evident when contrasted to the grant of authority underSection 3621(e)(1). Section 3621(e)(1) governs the scope of BOP's responsibilityto provide a residential substance abuse treatment program to prisoners.That section states that BOP "shall, subject to the availability ofappropriations, provide" a program to "all eligible prisoners."18 U.S.C. 3621(e)(1). By using the term "shall," Congress imposeda mandatory obligation on BOP under Section 3621(e)(1). If Congress hadintended to impose a similar mandate on BOP under Section 3621(e)(2)(B),to require that early release be granted to all persons who committed nonviolentoffenses, Congress would have used the term "shall" in Section3621(e)(2)(B) as well. Congress's decision to employ the two different termsin neighboring statutory provisions reflects a difference in the authorityit thereby granted in the two instances. That interpretation accords with"the normal inference" that is drawn when the same statute usesboth "may" and "shall"-"that each is used in itsusual sense-the one act being permissive, the other mandatory." Andersonv. Yungkau, 329 U.S. 482, 485 (1947); United States ex rel. Siegel v. Thoman,156 U.S. 353, 360 (1895) (use of "shall" in one provision of astatute and "may" in another "indicat[es] command in theone and permission in the other").

Moreover, by using the term "eligible prisoners" in Section 3621(e)(1),a term it expressly defined in 18 U.S.C. 3621(e)(5)(B), Congress evidencedan intent to exert greater control over the scope of BOP's obligation underSection 3621(e)(1) than under Section 3621(e)(2)(B), where it specifiedonly two statutory prerequisites, leaving to BOP's discretion the actualdecision whether to grant early release. Congress's definition of "eligibleprisoner" cannot support petitioner's argument that Congress intendedall prisoners who meet Section 3621(e)(2)(B)'s requirements to be "eligiblefor a sentence reduction" (Pet. Br. 18-19), because the phrase "eligibleprisoner" is nowhere used in Section 3621(e)(2)(B).7

Section 3621(e)(2)(A) further confirms that Congress granted the Bureaubroad discretionary authority under Section 3621(e)(2)(B). Section 3621(e)(2)(A)provides that, "[g]enerally," any prisoner who, "in the judgmentof the Director of the Bureau of Prisons," successfully completes aresidential substance abuse treatment program "shall remain in thecustody of the Bureau under such conditions as the Bureau deems appropriate."When Section 3621(e)(2)(B) (the very next paragraph) is read against thatbackdrop, it is apparent that early release is not mandatory for prisonerswho meet the statutory prerequisites. Rather, it is left to the discretionof the Bureau. That is consistent with the grant to the Bureau of the broadauthority to judge when a prisoner successfully completes a substance abusetreatment program, and to determine the conditions under which a prisonerwho completes a treatment program should thereafter be held in custody underSection 3621(e)(2)(A). Congress's grant to the Bureau of such discretionalso accords with the broad discretionary powers entrusted it for the overallsupervision of federal prisoners. See 18 U.S.C. 4042(a)(1) (BOP "shall* * * have charge of the management and regulation of all Federal penaland correctional institutions"); United States v. Wilson, 503 U.S.329, 335 (1992) (BOP "has the responsibility for administering thesentence" of federal offender); Hewitt v. Helms, 459 U.S. 460, 467(1983) (prison officials have "broad administrative and discretionaryauthority over the institutions they manage").8

2. The legislative background of Section 3621(e)(2)(B) demonstrates Congress'sintent to vest the Bureau of Prisons with substantial discretion to determinewhich prisoners should be granted early release. The report of the HouseJudiciary Committee that accompanied the House bill (H.R. 3350, 103d Cong.,1st Sess. (1993)) containing the original early release provision describedthe operation of the provision as follows: "In effect, this subparagraphauthorizes the Bureau of Prisons to shorten by up to one year the prisonterm of a prisoner who has successfully completed a treatment program, basedon criteria to be established and uniformly applied by the Bureau of Prisons."H.R. Rep. No. 320, supra, at 6. During the floor debate in the House, thechairman and the ranking member of the Crime and Criminal Justice Subcommitteeof the House Judiciary Committee emphasized that release was not guaranteedby the statute, but is a decision that is left to the BOP. See 139 Cong.Rec. 27,255 (1993) (statement of Rep. Schumer) ("[T]his is not mandatorytime off, it is an option, up to the prison authorities."); id. at27,250 (statement of Rep. Sensenbrenner) ("[T]hat is in the discretionof the Bureau of Prisons on whether or not the prisoner's term ought tobe reduce[d] upon completion of the program.").

During the floor debate in the Senate on a bill (S. 1607, 103d Cong., 1stSess. § 1304(d)(2)(1993)) that contained an early release provisionthat was identical in relevant respects to the original House version, someSenators voiced concern about the legislation allowing the early releaseof violent criminals. 139 Cong. Rec. at 27,209 (statement of Sen. Hatch);id. at 27,221 (statement of Sen. Grassley). The Senate addressed that concernby amending the early release provision to limit the availability of theincentive to those prisoners who were convicted of nonviolent offenses.See id. at 27,505, 27,588, 27,606, 32,286, 32,326. The Senate did not otherwisealter the broad grant of discretion to BOP. The amendment was drafted ina manner that prohibits BOP from releasing prisoners convicted of violentoffenses, not in a manner that mandates the release of prisoners convictedof nonviolent offenses.

When the House and Senate went to conference, the House agreed to the Senate'samendment and the Conference Report stated that the House version was beingamended "to limit the early release incentive for successful programcompletion to non-violent offenders." H.R. Rep. No. 711, 103d Cong.,2d Sess. 381 (1994); H.R. Rep. No. 694, 103d Cong., 2d Sess. 411 (1994).The Conference Report also emphasized that the authority provided to theBureau under the early release provision was "not to be construed aslimiting any authority already possessed by the Bureau of Prisons with respectto the release of inmates." H.R. Rep. No. 711, supra, at 381; H.R.Rep. No. 694, supra, at 411.9

B. The Bureau Of Prisons' Categorical Denial Of Early Release Is Well WithinThe Broad Discretion Granted It By Congress

As demonstrated above, the Bureau's interpretation of Section 3621(e)(2)(B)as vesting it with discretion to make early release determinations for prisonerswho meet the statutory prerequisites is compelled by the natural meaningof the statutory language read in the context of the statute as a whole.Nonetheless, petitioner essentially contends (Pet. Br. 17-18, 23-24, 29-30)that the Bureau cannot create categorical exclusions from early releaseand, in particular, that Congress intended to preclude the Bureau from categoricallydenying eligibility for early release based on characteristics of the offense,once it is found to be a "nonviolent offense."10 Congress, however,did not address how the Bureau should exercise its discretion within theclass of inmates who satisfy the statutory prerequisites for early release.Instead, it left BOP with the responsibility to "strike the balanceat this level, thinking that those with great expertise and charged withresponsibility for administering the provision would be in a better positionto do so." Chevron U.S.A. Inc. v. Natural Resources Defense Council,Inc., 467 U.S. 837, 865 (1984). The Bureau's identification in its regulation,28 C.F.R. 550.58, and Program Statement 5162.04, of certain categories ofprisoners to whom it will not grant early release represents a consideredjudgment by the agency authorized by Congress to make such penological determinations.

As the court of appeals concluded, deference is due the Bureau's regulation,28 C.F.R. 550.58, and Program Statement 5162.04, because those provisionsconstitute "an appropriate exercise of the BOP's discretion,"J.A. 26-27. See also Reno v. Koray, 515 U.S. 50, 61 (1995).11 Congress'sdecision affirmatively to bar early release for prisoners convicted of violentoffenses does not imply that the Bureau must treat prisoners who carried,possessed, or used a firearm in the commission of a nonviolent felony thesame as prisoners who did not. Rather, the statute leaves the Bureau discretionin that area, and it is a reasonable exercise of that discretion for theBureau to determine that prisoners who carried, possessed, or used firearmsin the commission of a felony, even a nonviolent offense, pose more of adanger to society than other prisoners, such that service of their entireprison term is warranted before release to the community.12

1. The court of appeals correctly held that Section 3621(e)(2)(B) does not"mandate that the BOP exercise its discretion by making individual,rather than categorical, assessments of eligibility for inmates convictedof nonviolent offenses." J.A. 26. Petitioner contends (Pet. Br. 23,29-30) that, because Congress categorically limited BOP's early releasediscretion to prisoners convicted of nonviolent offenses, BOP cannot exerciseits discretion categorically to establish additional criteria for grantingearly release. But this Court has upheld analogous exercises of authorityby agency officials charged with administering a statute. See INS v. Yang,519 U.S. 26 (1996) (statutory provision that established certain prerequisitesfor obtaining a waiver of deportation did not limit the factors that theAttorney General could consider in determining who, among the class of aliensthat satisfied those prerequisites, should be granted a waiver). Indeed,the legislative record is directly to the contrary-Congress intended thatearly release determinations be made "based on criteria to be establishedand uniformly applied" by the Bureau. H.R. Rep. No. 320, supra, at6. Thus, Section 3621(e)(2)(B) in no way precludes the Bureau from "particularizingstatutory standards through the rulemaking process and barring at the threshold"those prisoners who do not "measure up to them." Federal PowerComm'n v. Texaco, Inc., 377 U.S. 33, 39 (1964) (similar, in upholding authorityof agency to set general standards notwithstanding Administrative ProcedureAct's requirement of a "hearing").

The Bureau's consideration of petitioner's case in a categorical mannerunder 28 C.F.R. 550.58(a) and Program Statement 5162.04 is consistent withwell-recognized administrative law principles. The Court has held that,"even if a statutory scheme requires individualized determinations,"an agency "has the authority to rely on rulemaking to resolve certainissues of general applicability unless Congress clearly expresses an intentto withhold that authority." American Hosp. Ass'n v. NLRB, 499 U.S.606, 612 (1991); see Heckler v. Campbell, 461 U.S. 458, 467 (1983) (SocialSecurity Act's contemplation of individualized determinations of disabilityclaims based on evidence adduced at a hearing does not bar Secretary "fromrelying on rulemaking to resolve certain classes of issues"); FederalPower Comm'n v. Texaco, Inc., 377 U.S. at 44 (agency not required to repeatedlyrelitigate issues that may be fairly and efficiently established in singlerulemaking proceeding); United States v. Storer Broad. Co., 351 U.S. 192,205 (1956) (even where agency's enabling statute requires it to hold hearing,agency may rely on rulemaking authority to determine issues that do notrequire case-by-case consideration); cf. Independent Fed'n of Flight Attendantsv. Zipes, 491 U.S. 754, 760-761 (1989) ("law in general * * * doesnot interpret a grant of discretion to eliminate all 'categorical rules'").That Congress vested BOP with the discretion to grant early release "doesnot imply a mandate that this must be inevitably done by examining eachcase rather than by identifying groups." Kenneth Culp Davis, AdministrativeLaw Text 145 (3d ed. 1972) (quoting Fook Hong Mak v. INS, 435 F.2d 728,730 (2d Cir. 1970)).13

2. The Bureau of Prisons permissibly construed its discretionary authorityunder Section 3621(e)(2)(B) to allow it to determine that prisoners convictedof a felony that involved the carrying, possession, or use of a firearmor other dangerous weapon pose a sufficient risk of danger to public safetythat they should be denied early release. The fact that Congress respondedto concerns about the release of prisoners convicted of violent offensesby drafting the statute to bar their release does not preclude BOP fromconsidering a prisoner's potential dangerousness, as reflected by his priorinvolvement with a firearm during the commission of a felony, as a factorin determining whether to grant early release. The Court made clear in INSv. Yang that where Congress confers discretionary authority on a decisionmakerto grant a benefit to persons who satisfy certain statutory prerequisites,the decisionmaker is not precluded from considering factors that are connectedto the statutory prerequisites, so long as such consideration does not makea nullity of the statute. 519 U.S. at 30-31. The Bureau's considerationof whether a prisoner's conviction involved the carrying, possession, oruse of a firearm certainly does not render Section 3621(e)(2)(B) a nullity;many prisoners may satisfy both the statutory prerequisites and the regulatorycriteria for early release. "In Fiscal Year 1999, 2,633 inmates werereleased early pursuant to 18 U.S.C. § 3621(e). Since the Bureau implementedthis provision, a total of 6,559 inmates have been granted a reduction intheir term of imprisonment." Bureau of Prisons, Substance Abuse TreatmentPrograms in the Federal Bureau of Prisons, Report to Congress 12 (Jan. 2000).Moreover, the Bureau's early release regulation, 28 C.F.R. 550.58(a)(1)(vi)(B),and Program Statement 5162.04, in no way bar a prisoner like petitionerfrom participating in the Bureau's residential substance abuse treatmentprogram. They only deny one type of incentive to certain prisoners in acategorical manner, while leaving them eligible for other types of incentives.See 28 C.F.R. 550.57(a).14

Denial of early release to prisoners like petitioner is not inconsistentwith congressional intent. Although evidence before Congress indicated thatan early release incentive would encourage prisoners to participate in highlyeffective substance abuse treatment programs (see Pet. Br. 24-29), Congresschose not to mandate that the incentive be granted to all prisoners convictedof a nonviolent offense. See pages 17-22, supra. Rather, it charged BOPwith deciding whether to grant such prisoners early release. BOP has fulfilledthat responsibility in a reasonable manner, consistent with its grant ofdiscretion, and in light of its longstanding expertise and experience inprotecting the public safety through its classification of prisoners anddetermination of their appropriate custody status. See pages 20-21, supra.In addition to the category at issue here (felony involving firearm possession),BOP has established categories that deny early release to, inter alia, inmates"who have a prior felony or misdemeanor conviction for homicide, forciblerape, robbery, or aggravated assault, or child sexual abuse offenses,"28 C.F.R. 550.58(a)(1)(iv), and inmates whose current offense is a felony"[t]hat by its nature or conduct involves sexual abuse offenses committedupon children," 28 C.F.R. 550.58(a)(1)(vi)(D). Those categories rationallyensure that prisoners whose backgrounds suggest that they pose a particularrisk to the public, notwithstanding their current conviction of a nonviolentoffense, serve their full prison terms. By promulgating these standardsas categorical rules, BOP brings to early release determinations, whichare made by a large number of BOP employees at facilities located throughoutthe country, a predictability and uniformity that would otherwise be lacking.See H.R. Rep. No. 320, supra, at 6 ("criteria to be established anduniformly applied" by BOP).

CONCLUSION
The judgment of the court of appeals should be affirmed.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
BETH S. BRINKMANN
Assistant to the Solicitor
General
THOMAS M. GANNON
Attorney


AUGUST 2000

1 BOP's residential substance abuse treatment "is a course of individualand group activities provided by a team of drug abuse treatment specialistsand the drug abuse treatment coordinator in a treatment unit set apart fromthe general prison population, lasting a minimum of 500 hours over a sixto twelve-month period. Inmates enrolled in a residential drug abuse treatmentprogram shall be required to complete subsequent transitional services programmingin a community-based program and/or in a Bureau institution." 28 C.F.R.550.56.

2 The regulation also excluded from early release inmates who were INS detainees,pretrial inmates, contractual boarders (for example, D.C., state, or militaryinmates), inmates who were eligible for parole, and inmates who had a priorfederal or state conviction for homicide, forcible rape, robbery, or aggravatedassault. 28 C.F.R. 550.58 (1995).

3 Program Statement 5162.02 (July 24, 1995) is reproduced in the appendixto petitioner's brief at Pet. Br. App. 7-28.

4 The rule was filed for public inspection at the Federal Register on October9, 1997, see 62 Fed. Reg. at 53,691, and was published on October 15, 1997.

5 On May 17, 1996, BOP had amended its rule on drug abuse treatment programsto include a transitional treatment phase. 61 Fed. Reg. 25,121-25,122. Thatrule, the May 1995 rule, and the October 1997 rule were all issued as interimrules with requests for comments, as BOP sought to avoid a gap in its rulesfor consideration of early release for qualified inmates. See 62 Fed. Reg.at 53,690.

6 The court of appeals consolidated cases brought by ten federal prisonersthat involved the same early-release issue. J.A. 23-24.

7 In addition, the definition of "eligible prisoner" in Section3621(e)(5)(B) is clearly related only to whether substance abuse treatmentshould be offered, not to whether early release is warranted. That sectionstates:

(B) the term "eligible prisoner" means a prisoner who is-

(i) determined by the Bureau of Prisons to have a substance abuse problem;and

(ii) willing to participate in a residential substance abuse treatment program* * *.

8 See also 18 U.S.C. 4081 (BOP discretion to classify and segregate prisoners);18 U.S.C. 3621(b) (BOP discretion to transfer prisoner from one penal orcorrectional facility to another); 18 U.S.C. 3622 (BOP discretion to temporarilyrelease prisoner for specified reasons "consistent with the publicinterest"); Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (federal prisonofficials have "full discretion" to control prisoner classificationand eligibility for rehabilitative programs); United States v. Sotelo, 94F.3d 1037, 1041 (7th Cir. 1996) (district court has no authority to orderrestriction on persons with whom prisoner can communicate; court can onlyrecommend that BOP impose such restriction); United States v. Williams,65 F.3d 301, 307 (2d Cir. 1995) (sentencing court has no authority to orderprisoner confined in particular facility or placed in particular treatmentprogram; such decisions are within BOP's sole discretion); Prows v. BOP,981 F.2d 466, 469 (10th Cir. 1992) (BOP retains broad discretion to decidewhere prisoner may be confined during pre-release period), cert. denied,510 U.S. 830 (1993).

9 Because it is evident from Section 3621(e)(2)(B)'s text, structure, andhistory that Congress conferred discretion on BOP to determine which prisonersshould be granted early release, there is no basis for applying the ruleof lenity as petitioner urges, Pet. Br. 32-33. See Muscarello v. UnitedStates, 524 U.S. 125, 138 (1998); Reno v. Koray, 515 U.S. 50, 64-65 (1995).

10 See Ward v. Booker, 202 F.3d 1249, 1256 (10th Cir.) (the fact that Section3621(e)(2)(B) focuses on the nature of the prisoner's conviction, i.e.,"nonviolent offense," precludes BOP from basing a categoricaldecision not to allow early release on the underlying facts of the offensethat resulted in sentencing enhancement), petition for cert. pending, No.00-18.

11 Indeed, the Bureau implemented the statute & exercised its discretionin this case by denying petitioner early release (J.A. 7)-a delegated agencyaction the Bureau is authorized to take under the statute. Cf. Martin v.Occupational Safety & Health Review Comm'n, 499 U.S. 144, 157 (1991)(deference is owed to an agency interpretation of its regulation that "assume[d]a form expressly provided for by Congress").

12 Petitioner's amici raise a claim (Nat'l Ass'n of Crim. Defense Lawyerset al. Amici Br. 19-24), not raised or passed upon below, or pressed bypetitioner, that BOP's regulation is invalid because it was promulgatedwithout a notice and comment period before going into effect, as requiredunder the Administrative Procedure Act (APA), 5 U.S.C. 553. Neither thenotice nor advance comment period requirements apply, however, to substantiverules where there is good cause for noncompliance, to interpretive rules,or to general statements of policies. 5 U.S.C. 553(b)(A) and (B), 553(d)(2)and (3). The advance comment period also does not apply to substantive rulesthat grant or recognize an exemption or relieve a restriction. 5 U.S.C.553(d)(1). The Bureau's regulation falls within one or more of those categories.This Court has described "general statements of policy," 5 U.S.C.553(b)(A), 553(d)(2), as "statements issued by an agency to advisethe public prospectively of the manner in which the agency proposes to exercisea discretionary power." Chrysler Corp. v. Brown, 441 U.S. 281, 302n.31 (1979) (quoting Attorney General's Manual on the Administrative ProcedureAct 30 n.3 (1947)); Lincoln v. Vigil, 508 U.S. 182, 197 (1993) (same quotation).That term thus includes a regulation like 28 C.F.R. 550.58, in which theBureau announces the manner in which it intends to exercise the discretiongranted it by Congress under 18 U.S.C. 3621(e)(2)(B). Moreover, to the extentthat the regulation constitutes a substantive rule, it "grants or recognizesan exemption or relieves a restriction," 5 U.S.C. 553(d)(1), becauseit guides the Bureau in granting early release to certain prisoners andthereby exempts or relieves those prisoners from service of their full termsof imprisonment. And there was good cause, see 5 U.S.C. 553(b)(B), 553(d)(3),for BOP to promulgate the regulation as an interim rule with an immediateeffective date. As BOP explained, it published the change as an interimrule "in order to solicit public comment while continuing to provideconsideration for early release to qualified inmates." 62 Fed. Reg.at 53,690. And whatever the merits of amici's APA claim, it will not beof ongoing significance after promulgation of the Bureau's final regulation.

Of course, Program Statement 5162.04 is an internal agency guideline thatwas not subject to the notice and comment requirement and would warrantdeference, in any event, as a permissible implementation of the statutethat it administers, under Koray, 515 U.S. at 61, and Christensen v. HarrisCounty, 120 S. Ct. 1655, 1662-1663 (2000). See also Program Statement 5330.10,CN-03, ch. 6, at 1-2 (Oct. 9, 1997) (implementing early release incentivein drug abuse treatment program in accordance with regulation and ProgramStatement 5162.04).

13 The two courts of appeals that invalidated the Bureau's current regulationand Program Statement 5162.04 relied on circuit precedent that had heldthe Bureau's original regulation and program statement to be invalid basedon the conclusion that the Bureau had improperly defined a particular statutoryterm, "convicted of a nonviolent offense." See Ward, 202 F.3dat 1254 (relying on Fristoe v. Thompson, 144 F.3d 627 (10th Cir. 1998));and Kilpatrick v. Houston, 197 F.3d 1134 (11th Cir.) (per curiam), aff'g36 F. Supp. 2d 1328 (N.D. Fla. 1999) (relying on Byrd v. Hasty, 142 F.3d1395 (11th Cir. 1998)), petition for cert. pending, No. 99-2008. The courtof appeals correctly recognized (J.A. 27) that its own circuit precedentstriking down the original regulation, Martin v. Gerlinski, 133 F.3d 1076(8th Cir. 1998), was limited to the Bureau's prior interpretation of "convictedof a nonviolent offense" and, therefore, was not of relevance to thepresent case which relies on the discretion provided to the Bureau. Seealso Bowen v. Hood, 202 F.3d 1211, 1219-1220 (9th Cir.), petitions for cert.pending, Nos. 99-10159 & 99-10221.

14 The other incentives include "[l]imited financial awards, basedupon the inmate's achievement/completion of program phases"; "[c]onsiderationfor the maximum period of time (currently 180 days) in a Community CorrectionsCenter"; and "[l]ocal institution incentives such as preferredliving quarters or special recognition privileges," 28 C.F.R. 550.57(a)(1)-(3).

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