                                                                           FILED
                           NOT FOR PUBLICATION                             OCT 10 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


SHANE AARON ABBOTT,                              No. 12-35801

              Petitioner - Appellant,            D.C. No. 3:11-cv-01047-MO

  v.
                                                 MEMORANDUM*
FEDERAL BUREAU OF PRISONS; J.E.
THOMAS, Warden,

              Respondents - Appellees.


                  Appeal from the United States District Court
                           for the District of Oregon
                  Michael W. Mosman, District Judge, Presiding

                      Argued and Submitted August 26, 2014
                               Seattle, Washington

Before: WARDLAW, GOULD, and CHRISTEN, Circuit Judges.

       In 2011, Petitioner Shane Abbott (“Abbott”) sought acceptance into the

Residential Drug Abuse Program (“RDAP”) run by the Bureau of Prisons (“BOP”)

and was denied, based on a 2009 BOP rule that precluded prisoners with

outstanding warrants from RDAP eligibility. He filed a petition for a writ of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
habeas corpus seeking to compel the BOP to allow him into RDAP, which was

denied by the district court. He appealed that decision in 2012.

      While Abbott’s 2012 appeal was pending, the BOP changed its mind about

proper procedure and changed its course. The BOP discovered internal guidance

that, along with the quashing of one of Abbott’s warrants, resulted in a new review

pursuant to which the BOP determined that Abbott was eligible to participate in

RDAP. But the BOP also concluded that Abbott was not eligible to receive

RDAP’s early release incentive of a sentence reduction, because of his prior

Montana conviction for unlawful restraint. BOP determined that the Montana

unlawful restraint conviction was equivalent to “kidnaping,” barring his eligibility

under 28 C.F.R. § 550.55(b)(4).

      We remanded this case to the district court for the limited purpose of

determining Abbott’s eligibility for RDAP’s sentence reduction. Upon remand,

the district court held that it lacked jurisdiction to review Abbott’s challenge to his

denial of eligibility for sentence reduction on the ground that the BOP's decision

was an individualized early release determination, as opposed to a categorical

challenge.

      Abbott now appeals that decision, renewing the arguments presented in his

original habeas petition and raising two additional contentions: 1) that the district


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court erred in holding that it lacked jurisdiction; and 2) that the BOP’s

interpretation of 28 C.F.R. § 550.55(b)(4) to preclude his eligibility for a sentence

reduction was arbitrary and capricious.

      The claims presented in Abbott’s initial habeas petition regarding the

legality of the BOP’s 2009 RDAP eligibility rule, renewed in this appeal, are

rendered moot by the BOP’s decision to admit him to the RDAP program. Abbott

has received all the relief sought in his original petition: RDAP participation,

eligibility for placement in a halfway house program, and consideration for early

release. Although he was unsuccessful in getting a sentence reduction, he was

accepted as a participant in RDAP and was not precluded from consideration of

such eligibility. Abbott retains no “legally cognizable interest for which the courts

can grant a remedy.” Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189 F.3d 851,

854 (9th Cir. 1999). Therefore, Abbott’s initial and renewed appeal as to the

BOP’s 2009 RDAP eligibility rule is dismissed as moot.

      Turning to Abbott’s appeal of the district court’s decision on limited

remand, the court erred when it held that it lacked jurisdiction to review Abbott’s

challenge. It is true that the BOP has broad, unreviewable discretion over

individualized decisions regarding RDAP eligibility. See Reeb v. Thomas, 636

F.3d 1224, 1227–28 (9th Cir. 2011). But here Abbott makes a categorical


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challenge to the BOP’s interpretation of its own regulation, which is not foreclosed

from review. Cf. Close v. Thomas, 653 F.3d 970, 974 (9th Cir. 2011) (“These

petitions allege that the ‘BOP action is contrary to . . . its statutory authority.’

Therefore, the petitions are within [our] jurisdiction.” (citation omitted)).

       We next and finally address whether Abbott’s prior conviction for unlawful

restraint, as codified in Montana Code Annotated § 45-5-301, is equivalent to

kidnaping under 28 C.F.R. § 550.55(b)(4). We conclude that the Montana

unlawful restraint elements are not equivalent to kidnaping. The BOP’s conflation

of the two was arbitrary and capricious. We have previously explained that the

offenses listed in 28 C.F.R. § 550.55(b)(4) (homicide, forcible rape, robbery,

aggravated assault, arson, kidnaping, and sexual abuse offenses committed on

minors) are an appropriate bar to early release because their commission

“rationally reflects the view that such inmates displayed readiness to endanger the

public.” Peck v. Thomas, 697 F.3d 767, 773 (9th Cir. 2012). Montana law,

however, does not view unlawful restraint similarly, describing the offense as “the

lowest form of interference with the liberty of another.” Mont. Code Ann. § 45-5-

301 (Annotator’s Note to § 45-5-301). Further, unlawful restraint is a lesser

included offense of kidnapping under Montana law. See State v. Brummer, 287

Mont. 168, 177 (1998). The BOP has not shown a reasonable basis to extend a


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regulation involving a set of serious and violent crimes, all of which show

“readiness to endanger the public,” Peck, 697 F.3d at 773, to unlawful restraint in

violation of Montana law, which we consider to be a crime less serious and less

violent than those listed. We hold that BOP’s interpretive action is invalid. See

Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008).

       We conclude that Abbott was eligible for early release under 18 U.S.C. §

3621(e)(2)(B). Abbott has already been released from prison and can no longer

benefit from a sentence reduction, but he still could benefit from a reduction in his

term of supervised release. See Reynolds v. Thomas, 603 F.3d 1144, 1148 (9th Cir.

2010), abrogated on other grounds by Sester v. United States, 132 S. Ct. 1463

(2012). We think it is legally permissible and serves the ends of justice and

fairness for us to remand to the district court for it to consider in the first instance

whether modification of Abbott’s term of supervised release is now appropriate in

light of BOP’s prior unlawful denial of Abbott’s eligibility for sentence reduction.

       DISMISSED, REVERSED AND REMANDED with instructions.




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