98 Cal. Daily Op. Ser v. 1707, 98 Daily Journald.a.r. 2397charles Furguiel, Petitioner-appellant, v. Michael L. Benov, Warden, Respondent-appellee, 138 F.3d 798 (9th Cir. 1998)

Charles Furguiel, a federal prisoner, filed a petition for a writ of habeas corpus to challenge the Bureau of Prisons' ("BOP") decision to deny him a sentence reduction under 18 U.S.C. § 3621(e) (2) (B). The district court denied the petition. We affirm.

Section 3621(e) (2) (B) permits the BOP to reduce the sentence of a prisoner convicted of a nonviolent offense by up to one year, if the prisoner successfully completes a designated drug treatment program.¹  Furguiel is serving a forty-eight-month sentence for a 1994 conviction for using the U.S. Mail to distribute methamphetamine, in violation of 21 U.S.C. § 843(b). Furguiel also has a prior conviction for armed robbery. On May 10, 1995, Furguiel entered a designated treatment program with the intent to seek a one-year reduction of his sentence pursuant to § 3621(e) (2) (B).

On May 25, 1995, the BOP promulgated 28 C.F.R. § 550.58 which implements § 3621(e) (2) (B). Section 550.58 denies eligibility for a § 3621(e) (2) (B) sentence reduction to any prisoner whose current offense is a crime of violence or who has a "prior federal and/or state conviction for homicide, forcible rape, robbery, or aggravated assault." 28 C.F.R. § 550.58 (1995).²  The same day, the BOP issued Program Statement 5330.10 ("P.S.5330.10") which lists eligibility under § 550.58 as a qualification for early release. At the end of June 1995, and based on § 550.58 and P.S. 5330.10, the BOP notified Furguiel he was not eligible for a § 3621(e) (2) (B) sentence reduction because of his prior conviction for armed robbery. Despite this notification of his ineligibility for the sentence reduction, Furguiel continued participating in the treatment program, and he completed it on April 26, 1996.

After exhausting his administrative remedies, Furguiel filed a petition for writ of habeas corpus in the United States District Court, pursuant to 28 U.S.C. § 2241, arguing the BOP exceeded its statutory authority and violated his constitutional rights when it categorically denied eligibility for § 3621(e) (2) (B) sentence reductions to all prisoners who have prior convictions for violent offenses. The district court³  adopted the magistrate judge's⁴  report and recommendation in its entirety and denied Furguiel's petition. Furguiel v. Benov, No. CV-96-3269 (C.D. Cal. Sept. 12, 1996) (order adopting findings, conclusions and recommendations of United States Magistrate Judge). The district court concluded the BOP did not exceed its statutory authority when it decided all prisoners who have prior convictions for violent offenses are not eligible for § 3621(e) (2) (B) sentence reductions.⁵  Furguiel appeals.

Furguiel raises several challenges to the BOP's decision to deny him a sentence reduction.⁶  First, he urges the Ninth Circuit's recent decision in Cort v. Crabtree, 113 F.3d 1081 (9th Cir. 1997), rev'g Martin v. Crabtree, 945 F. Supp. 215 (D. Or. 1996), precludes the retroactive application of § 550.58 to deny him a sentence reduction. Specifically, Furguiel argues Cort prohibits the BOP from retroactively imposing new eligibility criteria for § 3621(e) (2) (B) sentence reductions, and the BOP has retroactively imposed new eligibility criteria on him. Therefore, we review Cort.

The petitioners in Cort were serving sentences for current convictions of unarmed bank robbery, in violation of 18 U.S.C. § 2113(a). Cort, 113 F.3d at 1082. Like Furguiel, each petitioner voluntarily entered a designated drug treatment program before the BOP promulgated 28 C.F.R. § 550.58.⁷  Id. On July 11, 1995, the BOP notified two of the Cort petitioners they were each eligible for a § 3621(e) (2) (B) sentence reduction. Id. On July 24, 1995, the BOP issued Program Statement 5162.02 ("P.S.5162.02") which stated, in part, that § 2113(a) offenses may or may not render a prisoner ineligible for a § 3621(e) (2) (B) sentence reduction, depending upon the characteristics of the offense as specified in the prisoner's presentence report. Cort, 113 F.3d at 1083. On January 18, 1996, the BOP notified the third Cort petitioner he was eligible for a sentence reduction. Id.

On April 23, 1996, the BOP issued "Change Notice CN-01" which amended P.S. 5162.02 to categorize all bank robbery offenses as crimes of violence. Approximately two weeks later, the BOP notified each petitioner that because of Change Notice CN-01, their current offenses of conviction (unarmed bank robbery) were now defined as "crimes of violence." Id. Thus, the BOP notified each of the petitioners he was now ineligible for a § 3621(e) (2) (B) sentence reduction. Id.

The petitioners completed the treatment program and sought federal habeas corpus relief, raising numerous arguments that the district court rejected. Cort, 113 F.3d at 1083. The petitioners appealed, limiting their appeal to the district court's rejection of their retroactivity and estoppel arguments. Id.

In addressing the appeal, the Cort panel concluded that with respect to the three petitioners, the BOP could and did determine prospectively that they were eligible for sentence reductions subject only to program completion. Cort, 113 F.3d at 1085. Because Change Notice CN-01 did not indicate any intent by the BOP to apply it retroactively to reverse these prior eligibility determinations, this court concluded Change Notice CN-01 could not be construed as applying retroactively.⁸  Id. at 1086. Therefore, the court found the petitioners had a right to be considered for early release upon successful completion of a designated treatment program. Id. The panel ultimately held Change Notice CN-01 applies only to those prisoners "who had neither entered a treatment program nor received favorable eligibility determinations as of the date of its issuance." Cort, 113 F.3d at 1086-87.

Furguiel argues this holding prevents the BOP from applying § 550.58 to him because he entered the treatment program two weeks before the BOP promulgated § 550.58. We disagree. Unlike Furguiel, each petitioner in Cort was serving time for a current conviction of unarmed robbery. Under the plain terms of § 3621(e) (2) (B), each petitioner was arguably convicted of a nonviolent offense. See 18 U.S.C. § 924(c) (3). As such, when P.S. 5162.02 was first issued, it did not categorically define all bank robbery offenses as crimes of violence. Instead, it instructed BOP officials to determine whether a particular bank robbery offense was nonviolent by looking at the characteristics of the prisoner's specific offense as outlined in the prisoner's presentence report. It was not until the BOP issued Change Notice CN-01 that P.S. 5162.02 categorized all bank robbery offenses as crimes of violence. Thus, before issuance of Change Notice CN-01, based on the plain language of § 3621(e) (2) (B), and later confirmed by P.S. 5162.02, a prisoner convicted of a nonviolent bank robbery, with no prior convictions for violent offenses, could be deemed eligible for a sentence reduction upon entry into a designated drug treatment program, with the only condition subsequent to this eligibility being successful completion of the program.⁹ 

Furguiel, on the other hand, has a prior conviction for armed bank robbery. The conviction arose from his robbery of a store at gunpoint. This prior conviction is not a conviction for a nonviolent offense. See 18 U.S.C. § 924(c) (3). As such, Furguiel was not eligible for early release under the plain terms of § 3621(e) (2) (B) when he entered the treatment program. See 18 U.S.C. § 3621(e) (2) (B). Section 550.58 merely confirmed Furguiel's ineligibility for the sentence reduction. It did not retroactively impair any right or expectation Furguiel legitimately held.

Furguiel also argues the BOP's retroactive application of § 550.58 exceeds the BOP's statutory authority and violates the Ex Post Facto Clause of the Constitution. Because of our conclusion that the BOP's application of § 550.58 to deny Furguiel a sentence reduction did not retroactively impair any legitimate right or expectation held by Furguiel, we will not reach these challenges. Further, we find Furguiel's equitable and promissory estoppel arguments are without merit.

For the foregoing reasons, we affirm the decision of the district court.

AFFIRMED.