                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS                   May 3, 2011
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT
                                                                    Clerk of Court


 PONCIANO TORRES,

              Appellant,                               No. 10-6128
                                                (D.C. No. 5:10-CV-00072-R)
 v.                                                   (W.D. of Okla.)
 H.A. LEDEZMA,

              Appellee.


                           ORDER AND JUDGMENT *


Before MURPHY, BRORBY, and TYMKOVICH, Circuit Judges. **


      Ponciano Torres challenges a Bureau of Prisons (BOP) regulation that

categorically denies prisoners eligibility for early release where they possessed a

firearm in connection with the commission of a felony. Because prior decisions

of the Supreme Court and this court have held the regulation is not arbitrary and

capricious, Torres’s claim is without merit. Having jurisdiction pursuant to 28




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         The court’s April 21, 2011 Order granted Torres’s unopposed motion to
vacate oral argument and submit the case on the briefs. See Fed. R. App. P.
34(a); 10th Cir. R. 34.1(G).
U.S.C. § 1291, we AFFIRM the district court’s decision to dismiss Torres’s

habeas petition.

                                  I. Background

      Torres was arrested when sheriffs’ officers conducted a search of the house

he occupied with three others and discovered illegal drugs. The officers also

found a shotgun hidden below a trapdoor in the floor. Torres pleaded guilty to

possession of marijuana with intent to distribute within 1000 feet of a school, in

violation of 21 U.S.C. §§ 841(a)(1), (c)(1)(C), and 860. The sentencing court

imposed a two-level enhancement for possession of a dangerous weapon under

§ 2D1.1(b)(1) of the United States Sentencing Guidelines. Accordingly, Torres

was sentenced to 78 months’ imprisonment, which he is currently serving at a

federal facility in El Reno, Oklahoma.

      While serving his term, Torres sought admission to the prison’s Residential

Drug Abuse Program (RDAP). By statute, the BOP may reduce a federal

prisoner’s sentence by up to one year if the prisoner successfully completes the

RDAP. 18 U.S.C. § 3621(e)(2)(B) (1994). But Torres was advised by an RDAP

administrator that, pursuant to BOP regulation, he would not be eligible for early

release even if he did complete the program.

      Torres brought this habeas petition in federal district court under 28 U.S.C.

§ 2241 challenging the regulation. In a carefully reasoned report, the magistrate

judge recommended Torres’s petition be denied, concluding the BOP eligibility

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standards did not affront statutory or constitutional requirements. The district

court adopted the magistrate judge’s recommendation and denied the petition.

                                    II. Discussion

         Torres contends the BOP regulation is arbitrary and capricious under

5 U.S.C. § 706(2)(A) of the Administrative Procedure Act (APA). 1 He further

asserts the government committed fraud in offering him the possibility of a

sentence reduction in his plea agreement for which he was ineligible. We review

the district court’s denial of habeas corpus relief de novo and review its findings

of fact for clear error. United States v. Eccleston, 521 F.3d 1249, 1253 (10th Cir.

2008).

         A. The Validity of the BOP Regulation

         Torres first claims the BOP acted arbitrarily in promulgating the regulation.

He asserts the BOP failed to articulate an adequate rationale on the record for

excluding from early release offenders who only possessed, but did not use or

carry, a firearm in relation to the commission of a non-violent felony.

         Under the APA, a reviewing court must set aside final agency action that is

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

the law.” § 706(2)(A). Under this standard, we consider “whether the disputed

         1
         After the parties’ briefs were submitted, we issued a decision resolving
this issue in Licon v. Ledezma, No. 10-6166, 2011 WL 1137056, at *1–3 (10th
Cir. Mar. 30, 2011). In supplemental briefing, Torres concedes that Licon
forecloses the appeal of the § 706(2)(A) claim, but he preserves the issue for en
banc review or review by the Supreme Court

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decision was based on consideration of the relevant factors and whether there has

been a clear error of judgment. ” Utah Envtl. Cong. v. Bosworth, 443 F.3d 732,

739 (10th Cir. 2006) . In conducting this review, we note that “an agency’s action

must be upheld, if at all, on the basis articulated by the agency itself;” we cannot

accept appellate counsel’s post-hoc rationalizations for agency action. Colo.

Wild, Heartwood v. United States Forest Service, 435 F.3d 1204, 1213 (10th Cir.

2006) (quotation omitted).

      Torres’s claim is foreclosed by our decision in a companion case, Sanchez

v. Ledezma, No. 10-6144, 2011 WL _____ (10th Cir. May 3, 2011). There, we

held two cases establish the regulation is not arbitrary and capricious, even as

applied to prisoners such as Sanchez. Id. In the first, Lopez v. Davis, the

Supreme Court upheld a nearly identical 1997 version of the regulation in part

because the BOP’s rationale of public safety was substantively reasonable. 531

U.S. 230 (2001). In a case following Lopez, we held this rationale was fairly

discernable in the administrative record for both the 2000 and 2009 regulations,

and therefore procedurally adequate. Licon v. Ledezma. No. 10-6166, 2011 WL

1137056, at *3–4 (10th Cir. Mar. 30, 2011). Torres’s § 706(2)(A) claim is

controlled by these decisions. We therefore deny his petition for relief.

      B. Fraudulent Inducement

      In his second claim on appeal, Torres contends the prosecutor fraudulently

induced him to plead guilty by promising early release upon successful

                                          -4-
completion of the RDAP, knowing he was ineligible for this benefit. This claim

is an attack on the validity of his plea agreement, and the conviction and sentence

based on that agreement.

       But a habeas petition under § 2241 is not the appropriate means for Torres

to make this claim. “A petition under . . . § 2241 attacks the execution of a

sentence rather than its validity and must be filed in the district where the

prisoner is confined.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). In

contrast, “[a] 28 U.S.C. § 2255 petition attacks the legality of detention and must

be filed in the district that imposed the sentence.” Id. (citation omitted). Thus,

Torres’s challenge to his plea agreement should have been brought under § 2255

in the Western District of Texas. See Licon, 2011 WL 1137056, at *7.

                                  III. Conclusion

      For the foregoing reasons, we AFFIRM the district court’s denial of the

habeas petition. We also GRANT Torres’s application to proceed in forma

pauperis.

                                                     ENTERED FOR THE COURT

                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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