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Solis v. Bell

United States District Court, S.D. Indiana, Terre Haute Division

February 11, 2019

JUAN SOLIS, Petitioner,
J.R. BELL Warden, Respondent.


          Jane Magnus-Stinson, Judge

         Juan 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.

         I. Legal Background

         18 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)).

         28 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 regulation).

         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.

         In 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 release.

         For the 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.

         For the 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.

         II. Factual Background

         On May 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.

         In 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.

         Solis 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.

         Assistant 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. ...

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