                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

         Nos. 99-1203/1204/1205/1206/1207/1211/1212/1213/1214/1611
                                ___________

Calvern J. Bellis, Shon Pierson,      *
Brian T. Shields, David J. Miller,    *
Thane Martin, George Cook,            *
Ryan Scott Clark, Sean A. Winston,    *
Tim Walker, and Christopher A.        *
Lopez,                                *
                                      *
             Appellees,               * Appeals from the United States
                                      * District Court for the District
       v.                             * of South Dakota.
                                      *
Randy J. Davis, Warden,               *
Federal Prison Camp, Yankton,         *
South Dakota; and Federal Bureau      *
of Prisons,                           *
                                      *
             Appellants.              *
                                 ___________

                             Submitted: May 12, 1999

                                 Filed: August 10, 1999
                                  ___________

Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      In these consolidated appeals, ten federal prisoners petitioned for a writ of
habeas corpus, see 28 U.S.C. § 2241(a), against the U.S. Bureau of Prisons (BOP) and
Warden Randy Davis of the Federal Prison Camp in Yankton, South Dakota. Each of
the appellees has completed or is scheduled to complete the BOP's voluntary residential
drug abuse treatment program, see 18 U.S.C. § 3621(b). The statute, see 18 U.S.C.
§ 3621(e)(2), authorizes the BOP to offer an early-release incentive to certain federal
prisoners in order to encourage them to enroll in its voluntary drug abuse treatment
program. The statute also provides that "[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," see 18 U.S.C.
§ 3621(e)(2)(B).

       To implement the statute, the BOP promulgated regulations and a program
statement which together define inmates' eligibility for the early-release incentive. See
28 C.F.R. § 550.58 and Federal Bureau of Prisons Program Statement 5162.04,
(categorization of offenses) (Oct. 9, 1997). The regulations and the program statement
identify two groups of offenses. The first consists of various federal offenses that the
director of the BOP has determined to be "crimes of violence"; inmates convicted of
these offenses are, by the terms of the statute, excluded from eligibility for the
early-release incentive. See Federal Bureau of Prisons Program Statement 5162.04,
§§ 1-2, §§ 5-6, § 9. The second is a group of crimes (called "director's discretion
offenses") a conviction for which renders an inmate ineligible for the early-release
incentive.      See 28 C.F.R. § 550.58(a)(1)(iv), § 550.58(a)(1)(vi)(A),
§ 550.58(a)(1)(vi)(B), § 550.58(a)(1)(vi)(C), and Federal Bureau of Prisons Program
Statement 5162.04, §§ 1-2, § 5, § 7, § 9. It is this second group of offenses that is at
issue in this appeal.

       The regulations pertaining to "director's discretion offenses" state, inter alia, that
inmates convicted of "a felony ... [t]hat involved the carrying, possession, or use of a
firearm or other dangerous weapon" are not eligible for early release. See 28 C.F.R.
§ 550.58(a)(1)(vi)(B). Section 7 of the program statement identifies more particularly

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the offenses that the director of the BOP has decided will preclude eligibility for early
release. Relying on the regulations and the program statement, the BOP determined
that the appellees were ineligible for the early-release incentive, either because they had
been convicted of being a felon in possession of a firearm, or because they had received
a sentencing enhancement under the federal sentencing guidelines for possession of a
dangerous weapon during the commission of a federal drug offense.

      In their petitions to the district court, the appellees contended that the BOP
exceeded its statutory authority by categorically excluding inmates who were not
convicted of violent offenses from eligibility for the early-release incentive. The district
court granted the appellees' petitions, and the BOP and the warden appeal. We
disagree.

       We have previously recognized that 18 U.S.C. § 3621(e)(2) vests broad
discretion in the BOP to determine which individuals, among the group of statutorily
eligible inmates convicted of nonviolent offenses, are appropriate candidates for early
release. See Love v. Tippy, 133 F.3d 1066, 1069 (8th Cir. 1998), cert. denied, 118
S. Ct. 2376 (1998). The statute states only that the prison term of an inmate convicted
of a nonviolent offense "may be reduced by the Bureau of Prisons" (emphasis added),
see 18 U.S.C. § 3621(e)(2)(B). The language is discretionary and does not mandate
that the BOP grant a sentence reduction to any particular inmate or class of inmates.
Cf. Morgan v. Rabun, 128 F.3d 694, 699 (8th Cir. 1997), cert. denied, 118 S. Ct. 1809
(1998) (finding "may" language in state statute discretionary). Under the plain
language of this statute, "[c]ommission of a 'nonviolent offense' makes a prisoner
eligible for consideration but does not ... grant the boon he seeks. Eligibility is not
entitlement." Bush v. Pitzer, 133 F.3d 455, 457 (7th Cir. 1997).

       Nor does the statute mandate that the BOP exercise its discretion by making
individual, rather than categorical, assessments of eligibility for inmates convicted of
nonviolent offenses. In fact, Congress expected the BOP to make early-release

                                            -3-
determinations "based on criteria to be established and uniformly applied," H.R. Rep.
No. 103-320 (section-by-section analysis), 1993 WL 537335 (Nov. 3, 1993). It is well
settled, moreover, that where Congress has left a gap in a statute for an agency to fill,
we defer to the agency's interpretation so long as it is a permissible construction of the
statute. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 843-45, 866 (1984); see also Love, 133 F.3d at 1069.

       The BOP chose to exercise the discretion granted to it under the statute by
identifying additional categories of inmates who are ineligible for the early-release
program because, although their offenses may be "nonviolent" within the meaning of
the statute, their underlying conduct indicates that they pose a serious risk to public
safety. We think that the BOP's decision to exclude these additional categories of
inmates from eligibility represents a manifestly permissible construction of the statute
and an appropriate exercise of the BOP's discretion.

       The appellees contend that the BOP's current regulations and the program
statement interpreting the relevant statutory language are contrary to our decision in
Martin v. Gerlinski, 133 F.3d 1076 (8th Cir. 1998). We disagree. In Martin, 133 F.3d
at 1078, we examined the portion of the statute that limits eligibility for early release
to nonviolent offenders, see 18 U.S.C. § 3621(e)(2)(B). In striking down an earlier set
of regulations that attempted to interpret the statutory term "nonviolent offense," we
held that the BOP must look to the offense of conviction, not to sentencing factors, in
determining whether an offender was convicted of a "nonviolent offense" and thus
eligible under the statute for the early-release incentive. Martin, 133 F.3d at 1079-81.
We did not, however, address the question at issue in this appeal, namely, whether the
BOP may, as an exercise of its discretion, see 28 C.F.R. § 550.58(a)(1), look to
sentencing factors in deciding which individuals among statutorily eligible inmates are
appropriate candidates for early release. Martin is therefore of no relevance to the
present case.


                                           -4-
       We conclude that the BOP acted within its authority in excluding the appellees
from the early-release program under 18 U.S.C. § 3621(e)(2). We therefore reverse
the district court's grant of the appellees' petitions, and remand with instructions to enter
judgment consistent with this opinion.

       A true copy.

              Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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