                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           October 30, 2006
                                    TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                             Clerk of Court

 THOMAS A. BERCHIOLLY,

                Petitioner - Appellant,

           v.                                                No. 06-3257
                                                    (D. Ct. No. 05-CV-3435-RDR)
 DUKE TERRELL, Warden, USP-                                    (D. Kan.)
 Leavenworth; BUREAU OF PRISONS,

                Respondents - Appellees.



                               ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

       Thomas Berchiolly, a federal prisoner proceeding pro se, appeals the District

Court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.

He challenges the Bureau of Prison’s (“BOP”) determination that he is ineligible for a


       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
sentence reduction under 18 U.S.C. § 3621(e). We take jurisdiction under 28 U.S.C.

§ 1291 and AFFIRM.

       Mr. Berchiolly is currently serving a sentence for conspiracy to distribute cocaine

and possession with intent to distribute cocaine. His 188-month sentence includes a two-

point enhancement under U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2D1.1(b)(1)

for the possession of a firearm during the commission of the offense. At the sentencing

hearing, the District Court recommended that Mr. Berchiolly be placed in the BOP’s

residential drug abuse treatment program (“RDAP”). He successfully completed the

RDAP on August 16, 2006.

       Under 18 U.S.C. § 3621(e), the BOP has discretion to release inmates “convicted

of a nonviolent offense” up to one year early upon their successful completion of the

RDAP. 18 U.S.C. § 3621(e)(2)(B). The statute does not define “convicted of a

nonviolent offense,” nor does it establish any additional criteria for determining eligibility

for a sentence reduction. To implement § 3621(e)(2)(B), the BOP published a regulation

which provides in relevant part that inmates whose current offense is a felony are not

eligible for early release, even after successful completion of the RDAP, if the felony

involved the “carrying, possession, or use of a firearm or other dangerous weapon.” 28

C.F.R. § 550.58(a)(1)(vi)(B). Based on this regulation, BOP officials advised Mr.

Berchiolly, whose sentence was enhanced for possession of a firearm, that although he

was eligible for the RDAP, he would not be eligible for early release. Mr. Berchiolly

takes issue with this regulation, arguing that he was “convicted” of only a nonviolent

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offense—conspiracy and possession with intent to distribute cocaine—and that it was

only the sentencing enhancement for the possession of a firearm that could be

characterized as “violent.” Therefore, he contends, the regulation is invalid.

       This court found such an argument persuasive in Ward v. Booker, 202 F.3d 1249,

1256 (10th Cir. 2000). We held that 28 C.F.R. § 550.58(a)(1)(vi)(B) was not a valid

exercise of the BOP’s regulatory authority because the statute addresses only convictions,

but the regulation permits categorical denial of early release based upon a sentencing

enhancement. Ward was abrogated, however, by a later decision of the Supreme Court.

See Lopez v. Davis, 531 U.S. 230 (2001). The Court concluded that the most natural

reading of the statute is that the BOP “‘may’ reduce the sentence of a nonviolent offender

who has successfully completed a drug treatment program,” but also may not. Id. at 241

(emphasis added). In other words, Congress’s choice of permissive language indicates

that the BOP “has the authority, but not the duty, . . . to reduce [the prisoner’s] term of

imprisonment.” Id. The Court further concluded that the statute does not require

eligibility determinations to be made on a case-by-case basis, but that the BOP is free to

make categorical determinations of eligibility, which avoids the “favoritism, disunity, and

inconsistency” that could befall a case-by-case approach. Id. at 244. In sum, Ward is no

longer good law.

       Lopez would appear to settle this matter. Nevertheless, Mr. Berchiolly argues that

United States v. Booker, 543 U.S. 220, 244 (2005) (holding, in part, that the use of

judicial fact-finding to enhance a sentence violates the Sixth Amendment), has changed

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the legal landscape relative to this issue. He contends that his enhanced sentence violates

his Sixth Amendment rights as stated in Booker, and therefore, the BOP cannot use this

illegally enhanced sentence to deny his early release. We disagree. Mr. Berchiolly’s

sentence became final well before January 12, 2005, the effective date of Booker. Booker

does not apply retroactively to cases on collateral review, United States v. Bellamy, 411

F.3d 1182, 1188 (10th Cir. 2005), and as such, he may not benefit from the holding in that

case.

        For the foregoing reasons, we AFFIRM.

                                          ENTERED FOR THE COURT,



                                          Deanell Reece Tacha
                                          Chief Circuit Judge




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