United States District Court, S.D. Indiana, Terre Haute Division
ORDER DENYING WRIT OF HABEAS CORPUS PURSUANT TO 28
U.S.C. § 2241 AND DIRECTING ENTRY OF FINAL
Solis, a federal inmate in the Federal Correctional
Institution at Terre Haute, Indiana, seeks a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. Specifically, Solis
argues that the Bureau of Prisons (BOP) was arbitrary and
capricious in denying him early release and the denial
violated his due process rights. See dkt. 1. For the
reasons discussed in this Order, his petition for writ of
habeas corpus is denied.
U.S.C. § 3621 governs the imprisonment of persons
convicted of federal crimes. Lopez v. Davis, 531
U.S. 230, 233 (2001). In 1990, Congress amended the statute
to provide that “[t]he Bureau shall … make
available appropriate substance abuse treatment for each
prisoner the Bureau determines has a treatable condition of
substance addiction or abuse.” Pub. L. 101-647, §
2903, 104 Stat. 4913. Four years later, Congress again
amended § 3621 as part of the Violent Crime Control and
Law Enforcement Act (“VCCLEA”), this time to
provide incentives for prisoner participation in BOP drug
treatment programs. Lopez, 531 U.S. at 233.
Specifically, “[t]he 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.” Pub.
L. 103-322, § 32001, 108 Stat. 1897 (codified at 18
U.S.C. § 3621(e)(2)(B)) (emphasis added); accord
Lopez, 531 U.S. at 233. The BOP issued regulations
governing substance abuse treatment programs and inmate
eligibility for early release consideration under §
3621. The final version of the regulation-codified at 28
C.F.R. § 550.58-categorically denied early release to
inmates whose current offense was a “crime of
violence” as defined at 18 U.S.C. § 924(c)(3).
See 28 C.F.R. § 550.58. After a series of
appellate court decisions, the BOP issued three new proposed
rules and, in 2009, reissued the regulations at 28 C.F.R.
§ 550.55 to exclude 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).”
Drug Abuse Treatment Program: Subpart Revision and
Clarification and Eligibility of D.C. Code Felony Offenders
for Early Release Determination, 74 Fed. Reg. 1892, 1895
(Jan. 14, 2009) (codified at 28 C.F.R. § 550.50 (2009)).
C.F.R. § 550.55 was revised in 2015. First, subsection
(b)(4) was amended to limit review of an inmate's prior
felony or misdemeanor convictions to those that occurred
“within the ten years prior to the date of sentencing
for [the inmate's] current commitment ….”
See Drug Abuse Treatment Program, 80 Fed. Reg.
43367, 43368 (July 22, 2015) (codified at 28 C.F.R. §
550.55 (2016)). Second, subsection (b)(6) was amended to
clarify that, in addition to an “attempt” or
“conspiracy” to commit an underlying offense
listed in (b)(4) or (b)(5), “solicitation” to
commit one of those qualifying offenses would also be
considered. Id. The revised version of 28 C.F.R.
§ 550.55(b) became effective May 26, 2016. See,
e.g., United States v. Medina, 2017 WL 5505795, at *1
(D. Mont. Nov. 16, 2017) (citing newest version of the
determination of an inmate's 18 U.S.C. § 3621(e)
early release eligibility is the responsibility of the
BOP's Designation and Sentence Computation Center Legal
Department (“DSCC Legal Department”).
See dkt. 12-1. Two separate versions of BOP Program
Statements relate to the procedures by which the DSCC Legal
Department receives, processes, and evaluates inmates'
requests for an 18 U.S.C. § 3621(e) early release
eligibility determination: Program Statement 5331.02 and
Program Statement 5162.05. Program Statement 5331.02 outlines
the procedures the BOP must follow in implementing the early
release program under 18 U.S.C. § 3621(e)(2). First, the
Drug Abuse Program Coordinator (“DAPC”) must
determine whether an inmate is eligible for participation in
the institution's drug treatment program. If so, the DAPC
will then request an offense review from the DSCC Legal
Department, and a final determination will be relayed to the
DAPC by the DSCC Legal Department.
evaluating whether an inmate is eligible for 18 U.S.C. §
3621(e) early release, the DSCC Legal Department engages in a
two-step analysis. The first step of the analysis involves
determining whether any of an inmate's current offenses
of conviction preclude early release; the second step
involves evaluating whether any prior offenses preclude early
first step, the DSCC Legal Department decides whether any one
of an inmate's current offenses of conviction satisfies
the criteria outlined both in the most recent version of the
regulation and Program Statements. Specifically, if a current
offense satisfies the criteria in 28 C.F.R. §
550.55(b)(5) and/or 28 C.F.R. § 550.55(b)(6) and is
listed in one of the sections of PS 5162.05, then that
current offense precludes early release.
second step in the analysis, the DSCC Legal Department
reviews all of an inmate's prior adult felony and
misdemeanor convictions that occurred within ten years before
the sentencing date of the inmate's current federal
offense of conviction to determine whether any prior
conviction constitutes one of the enumerated offenses listed
in 28 C.F.R. § 550.55(b)(4), or whether a conviction
constitutes “an attempt, conspiracy, or solicitation to
commit” any offense listed in 28 C.F.R. §
550.55(b)(4). It is unnecessary to proceed to the second step
of the analysis if an inmate is precluded from early release
in the first step.
5, 2016, the United States District Court for the Northern
District of Illinois sentenced Solis to a 124-month term of
imprisonment for his conviction for Possession with the
Intent to Distribute Methamphetamine, in violation of 21
U.S.C. § 841(a)(1). Dkt. 12-2.
August 2016, Solis requested an 18 U.S.C. § 3621(e)
early release eligibility determination. The BOP subsequently
found him ineligible pursuant to the controlling regulation
and relevant Program Statements. Dkt. 12-1 at 5-6.
Specifically, Wesley Zurovec, a Paralegal Specialist within
the DSCC Legal Department, determined that Solis was
ineligible for 18 U.S.C. § 3621(e) release because his
current offense conviction included the use or possession of
a firearm and presented a serious potential risk of physical
force against a person. See dkt. 12-5. In support,
Zurovec noted that the United States Probation Officer
recommended, as part of the Presentence Investigation Report
(“PSR”), that the sentencing court adopt a
two-level enhancement since Solis used or possessed a
dangerous weapon in connection with his offense. Dkt. 12-1 at
¶ 17 (citing dkt. 13 at 7-8). Paragraph 21 of the PSR
states that “[i]n the instant case[, ] a weapon, a .38
caliber pistol[, ] was possessed, which the defendant has
acknowledged.” Dkt. 13 at 7. Even though the sentencing
court did not select a specific box in its Statement of
Reasons (“SOR”), it is apparent from the SOR that
the firearm enhancement was adopted, because the total
offense level of 31 is consistent with the total offense
level calculated in the PSR. Dkt. 13 at 2.
sought a re-review of his 18 U.S.C. § 3621(e)
ineligibility, and the re-review affirmed the September 14,
2016 ineligibility determination. Dkt. 12-1 ¶¶
19-21. The BOP's final administrative decision affirmed
Solis' 18 U.S.C. § 3621(e) ineligibility.
Id. ¶ 21; see also dkt. 12-5.
General Counsel Allan John Baptiste also concurred with
Zurovec's conclusions on the basis that the sentencing
court's adoption of the firearm enhancement confirmed
Solis' “carrying, possession or use of a
firearm” was in connection with his drug offense.