                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              APR 13 2000
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 KENNETH JONES,

          Petitioner-Appellee,

 v.                                                       No. 99-6366
                                                          (W.D. Okla.)
 A.M. FLOWERS,                                     (D.Ct. No. CIV-98-1707-A)

          Respondent-Appellant.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.



      Appellant, the United States, brings this appeal on behalf of A.M. Flowers,


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Director of the United States Bureau of Prisons (Bureau), for the purpose of

appealing the district court’s decision directing the Bureau to reconsider Appellee

Kenneth Jones’ eligibility for early release based on his successful completion of

a drug treatment program. 1 We affirm.



       Mr. Jones is presently serving a 235-month sentence following his April 16,

1997 conviction for possession with intent to distribute and distribution of

cocaine. At sentencing, Mr. Jones received a two-level sentence enhancement

under United States Sentencing Guideline § 2D1.1(b)(1) because he possessed a

firearm during the course of the charged drug transaction. While incarcerated,

Mr. Jones successfully completed a residential drug treatment program, and

requested a sentence reduction pursuant to 18 U.S.C. § 3621(e)(2)(B). This

provision allows the Bureau to reduce an inmate’s sentence for a conviction of a

nonviolent offense if the inmate successfully completes a drug treatment program.

However, the Bureau found Mr. Jones categorically ineligible for early release

based on his two-point sentence enhancement for use of a weapon.


       1
         As a preliminary matter, we deny the United States’ motion to consolidate this
appeal with an appeal brought by Mr. Jones, purportedly concerning the same district
court decision. See Case No. 00-6002, Motion to Consolidate dated February 23, 2000.
We further acknowledge receipt of Mr. Jones’ “Memorandum of Law” and motion to
dismiss in the instant case. In light of our disposition of this appeal, we deny Mr. Jones’
motion to dismiss.


                                            -2-
      Mr. Jones filed a petition for writ of habeas corpus under 28 U.S.C. § 2241,

contesting the Bureau’s decision as contrary to the plain language of 18 U.S.C. §

3621(e)(2)(B). The district court referred the matter to a magistrate judge who

issued a Report and Recommendation, recommending Mr. Jones’ petition be

granted, in part, and the Bureau be directed to reconsider Mr. Jones’ early release

eligibility. In so holding, the magistrate judge noted that this court, in Fristoe v.

Thompson, 144 F.3d at 627 (10th Cir. 1998), invalidated a previous Bureau policy

which held that inmates with sentences increased by a firearm enhancement could

not qualify for early release. See Fristoe, 144 F.3d at 631-32. The magistrate

judge found the Bureau’s revised policy, as applied to Mr. Jones, had essentially

the same effect as the prior invalidated policy because it also categorically

precluded him and other inmates from early release based on their firearm

sentencing enhancement, albeit this time through the guise of the Bureau

Director’s discretion. 2 The district court adopted the Report and


      2
          The new policy provision states:

             (1) As an exercise of the discretion vested in the Director ... the
      following categories of inmates are not eligible for early release:

      ....

      (vi) Inmates whose current offense is a felony:

      ....


                                             -3-
Recommendation, and directed the Bureau to reconsider Mr. Jones’ eligibility for

early release.



      The Bureau appeals the district court’s decision, claiming its revised policy

is based purely on the Bureau Director’s discretion to determine whether certain

offenses may be considered for early release, and not on any improper statutory

construction. We disagree.



      Because this issue involves a purely legal question, we review the district

court’s decision de novo. Ward v. Booker, 202 F.3d 1249, 1254, (10th Cir. 2000).

Our determination of the legal issue presented here is easily resolved. In Ward,

we held the Bureau’s revised policy, at issue here, conflicts with the clear

language of § 3621(e)(2)(B), and the Bureau’s attempt to couch it as merely an

exercise of discretion did not make it any less contrary to the statute. Id. at 1255.

Our reasoning for invalidating the Bureau’s revised policy is set forth in Ward,

and for judicial economy, we will not repeat it here. Id. In reaching our

conclusion in Ward, we nevertheless continue our recognition of the Bureau’s



      (B) That involved the carrying, possession, or use of a firearm or other
      dangerous weapon or explosives ....

28 C.F.R. § 550.58.


                                           -4-
broad discretion to determine who among eligible prisoners may receive a

sentence reduction following participation in a substance abuse treatment

program. Id. at 1257. Thus, given our holding in Ward, we agree with the

district court’s directive requiring the Bureau to reconsider Mr. Jones’ eligibility

for early release and therefore AFFIRM the district court’s order.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




                                         -5-
