                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 98-4065
                                      ___________

Glenn H. Zacher,                           *
                                           *
      Plaintiff - Appellant,               *
                                           * Appeal from the United States
      v.                                   * District Court for the
                                           * District of Minnesota.
J. W. Tippy,                               *
                                           *
      Defendant - Appellee.                *
                                      ___________

                               Submitted: October 22, 1999

                                    Filed: January 28, 2000
                                     ___________

Before BOWMAN, JOHN R. GIBSON, and BEAM, Circuit Judges.
                          ___________

JOHN R. GIBSON, Circuit Judge.

       Glenn H. Zacher appeals from the district court's1 denial of his petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241 (1994). Zacher petitioned for the writ
on the ground that he ought to be released a year early from his sentence for conspiracy
to possess marijuana with intent to distribute, because he participated in the Bureau of



      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
Prisons' drug abuse treatment program. The Bureau of Prisons denied Zacher early
release because he had an earlier state conviction that falls within the Bureau's
definition of aggravated assault and therefore disqualifies him from early release under
28 C.F.R. § 550.58 (1999). Zacher appeals the denial of the writ, arguing that the
Bureau of Prisons changed the requirements for early release after he complied with
existing standards. He also contends that he is not subject to the requirement of 18
U.S.C. § 4042(b) (1994 and Supp. III 1997) that law enforcement officials be notified
before his release. We affirm in part and remand in part for dismissal by the district
court.

       Under the Violent Crime Control and Law Enforcement Act of 1994, Congress
required the Bureau of Prisons to make substance abuse treatment available to each
federal prisoner with a treatable substance abuse condition. 18 U.S.C. § 3621(b)
(1994). As an incentive for participation in substance abuse treatment, Congress
authorized the Bureau of Prisons to offer early release to prisoners "convicted of a
nonviolent offense" who undergo treatment. 18 U.S.C. § 3621(e)(2)(B) (1994). The
language of section 3621(e)(2)(B) is permissive, stating that the Bureau "may" grant
early release, but not guaranteeing eligible inmates early release.2 See Bellis v. Davis,
186 F.3d 1092, 1094 (8th Cir. 1999), pet'n for cert. filed, No. 99-7558 (Dec. 15, 1999).

       In 1995, the Bureau of Prisons adopted a regulation governing eligibility for
early release on completion of drug abuse treatment, which created two different
categories of prisoners that would be excluded by reason of a "violent offense." The


      2
          Section 3621(e)(2)(B) provides in whole:

      (B) Period of custody.-- The 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.

                                          -2-
regulation established different criteria for "violent offenses," according to whether the
violent offense was the prisoner's current crime of conviction or a past crime. 60 Fed.
Reg. 27,695 (1995) (codified at 28 C.F.R. § 550.58 (1995))3. A prisoner was not
eligible for early release if he was currently in prison for a crime "determined to be a
crime of violence as that term is defined in 18 U.S.C. § 924(c)(3)." Under the
definition in section 924(c)(3), only felonies are considered "crimes of violence." As
to prisoners whose current crime of conviction was nonviolent, but who had committed
crimes in the past, the Bureau used a different definition of "violent offense," because
these crimes would not all be federal crimes, easily classifiable under section 924(c)(3).
The Bureau explained:

      Because state convictions may show a considerable range in the degree
      of violence used in the offense, the Bureau has chosen to use the above
      cited categories of crimes [homicide, forcible rape, robbery, or aggravated
      assault], which are reported under the FBI Violent Crime Index, as the
      sole determinant of violence in the criminal history.

 60 Fed. Reg. 27,692 (1995).

       The Bureau adopted a Program Statement, No. 5330.10 (May 25, 1995), which
reiterated section 550.58. Program Statement No. 5330.10 further directed those
administering the treatment program to assess early release eligibility by reference to
the current offense/past offense dichotomy set up by section 550.58:


      3
          The relevant part of the 1995 version of section 550.58 provided:

      An inmate who completes a residential drug abuse treatment program
      during his or her current commitment may be eligible for early release .
      . . unless the inmate's current offense is determined to be a crime of
      violence as defined in 18 U.S.C. § 924(c)(3), or unless the inmate has a
      prior federal and/or state conviction for homicide, forcible rape, robbery,
      or aggravated assault.

                                           -3-
      Drug abuse treatment staff shall determine an inmate's eligibility for early
      release consideration by:

             ‚                 obtaining from the unit team the
                               determination of the inmate's current
                               offense of conviction regarding its
                               definition as violent or non-violent.
             ‚                 reviewing the inmate's PSI and, when not
                               available in the PSI Report, the FBI Rap
                               Sheet to determine if the inmate has any
                               previous state or federal convictions for
                               robbery, forcible rape, aggravated assault,
                               or homicide.

        The Bureau later revamped both section 550.58, see 62 Fed. Reg. 53,691
(1997), and the Program Statement, see No. 5330.10 (October 9, 1997), which now
include the words "felony or misdemeanor" in describing the categories of past offenses
which will disqualify a prisoner from early release. See 28 C.F.R. § 550.58(a)(iv)
(1999).

                                            I.

       Zacher is now in prison for a federal crime, conspiracy to possess more than 100
kilograms of marijuana with intent to distribute. His release date, with good time
credit, would be August 8, 2000. Zacher participated in the Bureau of Prisons' "500
Hour Drug Abuse Program" when he was at the Three Rivers Federal Correctional
Institution. He received a "Provisional Notice of Residential Drug Abuse Program and
3621(e) Eligibility" dated June 20, 1996 from the Bureau's Drug Abuse Program
Coordinator, stating: "My current assessment, in consultation with your unit team, is
that it does appear that you will be provisionally eligible for early release." This would
have made his release date August 8, 1999. The notice contained a check list with
conditions for eligibility, including a condition that the prisoner must "[n]ot have any


                                           -4-
prior adult conviction for homicide, forcible rape, robbery, or aggravated assault." The
Drug Abuse Program Coordinator initialed that condition as satisfied.

      However, Zacher did in fact have a previous California State court conviction
for Assault with a Deadly Weapon or Force Likely to Produce Great Bodily Injury.
Zacher's presentence report in the marijuana case describes the California conviction:

      Police reports reflect that the defendant and another individual went to the
      residence of James Nelson, then age 25, and beat him because they
      thought that he had stolen some drugs from Zacher's residence. The
      beating of the victim, according to police reports, was very serious, and
      the victim was told by Zacher that the victim's house would be fire-
      bombed, and that the victim would be killed if he did not "get it back
      within 24 hours."

The presentence report indicated that Zacher was an adult when he committed the
assault, and that he received a sentence of twenty-four months' probation.

       When Zacher was transferred from Three Rivers to the federal prison in
Oklahoma City, counsel for the Bureau of Prisons reviewed his eligibility for early
release. On December 2, 1996, counsel determined that Zacher was not eligible
because of the California conviction.

      In January 1997 the Bureau of Prisons reversed itself and notified Zacher that
he would be eligible for early release because his California conviction was classified
as a misdemeanor. Under California law, even though Assault with a Deadly Weapon
or Force Likely to Produce Great Bodily Injury carries a range of punishment from one
year to four years imprisonment, Cal. Penal Code § 245 (West 2000), a crime is
nevertheless classified as a misdemeanor if the court sentences the defendant to
probation only and declares the offense a misdemeanor. Cal. Penal Code § 17(3)
(West 2000 ). The government concedes that Zacher's assault was a misdemeanor

                                          -5-
under this standard. Even though all versions of section 550.58 and Program Statement
No. 5330.10 provided that a previous conviction for aggravated assault would render
a prisoner ineligible for early release, and neither the regulation nor the Program
Statement mentions classification as a misdemeanor or felony of the aggravated assault
as relevant to eligibility, the Bureau of Prisons sent Zacher a notice that it had reversed
its eligibility determination based on this factor. Theresa Johnson, the Drug Abuse
Program coordinator at the Oklahoma City prison wrote Zacher on August 6, 1997:

      [O]n 1-13-97, again as a result from communication with Regional
      counsel through our institution attorney, it was decided that your prior
      offense, Assault with a Deadly Weapon, because it was not a felony,
      would not keep you from receiving the sentence reduction. You signed
      this latest notice of 3621(e) eligibility on 1-14-97.

      The issue of 3621(e) has not been easily determined in your case, because
      of the seemingly violent nature of the offense and the fact that it was a
      misdemeanor. Although initially there was some confusion, the final
      determination is that you are still provisionally eligible for 3621(e) early
      release.

       Despite the conclusion of this letter, the "final determination" was not final.
Zacher was transferred once again, this time to the Federal Correctional Institution at
Waseca, Minnesota. Once again, the Drug Abuse Coordinator reviewed Zacher's
eligibility for early release. The Bureau then reversed itself for the third time. On May
28, 1998, Zacher was informed that he was ineligible for early release based on his
earlier conviction for aggravated assault, which counsel concluded met the definition
of "aggravated assault" used by the Bureau of Prisons in that it involved a deadly
weapon and infliction of severe bodily injury on the victim.4 Zacher contends that his


      4
      The Bureau of Prisons uses the FBI's Uniform Crime Reports definition of
"Aggravated Assault," which provides:


                                           -6-
records show there was no weapon used in committing the assault, but he does not
dispute that he inflicted severe bodily injury.

       Zacher filed this habeas corpus petition, alleging that the Bureau of Prisons'
application of its Program Statement to him was unlawful because the Bureau
improperly included his earlier misdemeanor conviction as a "crime of violence" that
made him ineligible for early release under section 3621(e). He contended that not until
a change to the Program Statement on October 9, 1997 did the Bureau consider inmates
ineligible for early release because of a misdemeanor conviction. He argued that this
change violated the Ex Post Facto clause of the Constitution. He further alleged that
he had a Due Process right to early release under section 3621 and that the Bureau of
Prisons had denied him equal protection by refusing him eligibility for early release
while granting early release to Glenn Semin, whom Zacher alleged was similarly
situated in that he had a prior state "felony assault" conviction. He also alleged that the
Bureau misapplied 18 U.S.C. § 4042(b) and that the Bureau wrongly planned to notify
law enforcement officials of his release.

       The district court held that 28 C.F.R. § 550.58 made early release unavailable
to prisoners with prior convictions for aggravated assault. Zacher's earlier conviction
fell within the FBI definition that the Bureau used for deciding eligibility for early
release. It was therefore within the Bureau of Prisons' discretion to determine that
Zacher was not eligible, and so the district court dismissed Zacher's petition. The



      Aggravated assault is an unlawful attack by one person upon another for
      the purpose of inflicting severe or aggravated bodily injury. This type of
      assault is usually accompanied by the use of a weapon or by means likely
      to produce death or great bodily harm. Attempts are included since it is
      not necessary that an injury result when a gun, knife, or other weapon is
      used which could and probably would result in serious personal injury if
      the crime were successfully completed.

                                           -7-
district court did not rule on Zacher's claim that the Bureau wrongly considers him
subject to section 4042 notification.

                                           II.

        Zacher argues that under the pre-1997 version of section 550.58, he could only
be disqualified from early release if his past conviction satisfied the "violent offense"
criteria imposed for current offenses. As we have seen, current offenses were
originally classified as "violent" or "nonviolent" by reference to section 924(c)(3),
under which only felonies could be "violent."5 Because Zacher's past conviction for
aggravated assault was only a misdemeanor conviction under California law, he
contends that his past conviction does not qualify as a "violent offense" under section
924(c)(3). Therefore, Zacher argues, he cannot be excluded from eligibility, because
his past crime did not meet the definition of "violent offense" applicable to current
offenses.

       Under the two-tier definition of violent offenses used in original section 550.58,
current offenses were classified by different criteria than past offenses. Zacher's past
aggravated assault clearly met the criteria for exclusion as a past crime under the
original version of section 550.58. Thus, it is utterly irrelevant that Zacher's past
offense does not meet the felony criterion relevant only to current offenses, and we
reject his arguments based on Program Statement No. 5162.02 (July 24, 1995),
interpreting the standard for current offenses.

      Zacher also argues that if section 550.58 disqualified him from early release on
the basis of a misdemeanor, the regulation was an impermissible interpretation of


      5
       Section 550.58 has been amended so that it no longer categorizes even current
offenses by reference to section 924(c)(3). See 62 C.F.R. § 53,691 (1997) (codified
at 28 C.F.R. § 550.58 (1999)).

                                          -8-
section 3621(e)(2)(B). The Bureau's separate definition of "violent offense" for past
offenses has been approved by every Circuit court that has considered it. See Martinez
v. Flowers, 164 F.3d 1257, 1260 (10th Cir. 1998); Wottlin v. Fleming, 136 F.3d 1032,
1036 (5th Cir. 1998); Stiver v. Meko, 130 F.3d 574, 577 (3d Cir. 1997); Caputo v.
Clark, 132 F.3d 36, 1997 WL 774921 at *2 (7th Cir. 1997) (unpublished), cert. denied,
119 S. Ct. 128 (1998); Jacks v. Crabtree, 114 F.3d 983, 986 (9th Cir. 1997), cert.
denied, 523 U.S. 1009 (1998). Since section 3621(e) does not define "nonviolent
offense," Congress has left a gap to be filled by the agency administering the statute.
See Love v. Tippy, 133 F.3d 1066, 1069 (8th Cir.), cert. denied, 118 S. Ct. 2376
(1998). We must defer to the Bureau's interpretation as long as it is a permissible
construction of the statute. See id. (citing Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842-43 (1984)). Like our sister courts, we
conclude that section 3621(e) permits the Bureau to include past offenses in
determining whether a prisoner has been convicted only of "nonviolent offenses." We
also conclude that the Bureau's method for determining which past offenses are violent
is a permissible interpretation of the statute. In particular, inclusion of certain
misdemeanors as "violent offenses" is not inconsistent with the statute where, as here,
the conviction was for a crime involving infliction of a serious beating on the victim.
Moreover, after briefing in this case was complete, this Court decided Bellis v. Davis,
186 F.3d 1092, 1095 (8th Cir. 1999), pet'n for cert. filed, No. 99-7558 (Dec. 15, 1999),
in which we held that the Bureau could exercise its discretion under section 3621(e) to
disqualify from early release persons convicted of certain categories of crimes without
regard to whether those crimes were "crimes of violence."

       In the same vein, Zacher argues that the Bureau itself interpreted section 550.58
as requiring past offenses to be felonies until 1997, when the Bureau first decided past
misdemeanor aggravated assault convictions would disqualify a prisoner from the early
release program. Zacher's argument is based on a misreading of the Bureau's regulation
and Program Statements.


                                          -9-
       When the Bureau initially promulgated section 550.58, it explained that as to
past offenses, rather than using the section 924(c) definition of violent crime, it would
use the four crimes listed in the FBI Violent Crime Index, in an attempt to impose some
uniformity on widely varying state laws. 60 Fed. Reg. at 27,692. The FBI Uniform
Crime Reports defined "aggravated assault" as "an unlawful attack by one person upon
another for the purpose of inflicting severe or aggravated bodily injury. This type of
assault is usually accompanied by the use of a weapon or by means likely to produce
death or great bodily harm." Zacher's California assault conviction is on its face the
type of conviction described by the Bureau in the original section 550.58 and
supporting Program Statement No. 5330.10. Moreover, the crime described in Zacher's
presentence report clearly falls within the definition of aggravated assault used by the
FBI.6 Thus, in 1997, when the Bureau amended section 550.58 and Program Statement
No. 5330.10 to state explicitly that certain past crimes were disqualifying whether
felonies or misdemeanors, the Bureau was not changing the law in this particular
respect. It was at the most clarifying what was already contained in the original
regulation and Program Statement. Amendments to a regulation that merely clarify
preexisting law are not subject to the various Constitutional limits on retroactivity that
Zacher invokes. See Orr v. Hawk, 156 F.3d 651, 654 (6th Cir. 1998); see generally
Lynce v. Mathis, 519 U.S. 433, 441 (1997) ("To fall within the ex post facto
prohibition, a law must be retrospective--that is, 'it must apply to events occurring
before its enactment'--and it 'must disadvantage the offender affected by it' by altering
the definition of criminal conduct or increasing the punishment for the crime.").


      6
        Zacher argues briefly that the FBI Uniform Crime Reporting Database definition
of "aggravated assault" hinges on use of a deadly or dangerous weapon. Zacher's
assault involved no weapon. The only FBI definition the parties have supplied the
court defines aggravated assault as "an unlawful attack by one person upon another for
the purpose of inflicting severe or aggravated bodily injury." The definition states that
the crime is "usually" accompanied by use of a weapon or other means "likely to
produce death or great bodily harm." This definition does not require a weapon where
the perpetrator manages to inflict severe injury without one, as Zacher apparently did.

                                          -10-
       Nor can we take the Bureau's actions in telling Zacher (twice) that he was
provisionally entitled to early release as a binding interpretation of the regulation
requiring a felony for disqualification; the Bureau hardly had a steadfast and considered
position on this issue, since it reversed itself three times in its communications with
Zacher. Zacher can have gained no legally protected interest in an erroneous
misapplication of the Bureau's regulations, and therefore, the Bureau's correction of its
error cannot violate the Due Process clause. See Royal v. Tombone, 141 F.3d 596, 602
(5th Cir. 1998) (per curiam) ("As any determination by the BOP that Royal was eligible
for a sentence reduction was erroneous, his actual status has not been retroactively
changed. . . ."); Whipple v. Herrera, 69 F. Supp.2d 1310, 1316 (D. Colo. 1999).
Zacher's case differs crucially from that of Cort v. Crabtree, 113 F.3d 1081 (9th Cir.
1997), in which the Bureau issued a Program Statement changing the criteria for early
release after the petitioners had qualified for early release under the former Program
Statement.

       Zacher's petition failed to allege an equal protection violation stemming from the
release of Glenn Semin, who, Zacher alleged, had a past Nebraska "felony assault"
conviction. Because the Bureau's criterion for disqualifying past assault convictions
hinges on whether the assault was "aggravated," not on whether it was a misdemeanor
or felony, Semin could have been eligible for early release under the Bureau's
regulations. Zacher has not alleged disparate treatment of an individual similarly
situated to him. Cf. Powells v. Minnehaha County Sherriff Dep't, No. 99-2029, 1999
WL 1211904, at *1 (8th Cir. Dec. 20, 1999). We have reviewed Zacher's other
arguments for early release and conclude they are without merit.

                                          III.

      Zacher argues that he should not be subject to the notification procedure under
18 U.S.C. § 4042(b). This claim must be dismissed because Zacher did not exhaust his
administrative remedies, see Greene v. Meese, 875 F.2d 639, 641 (7th Cir. 1989), and

                                          -11-
also because the Warden concedes in this Court that section 4042(b) does not apply to
Zacher and has changed Zacher's records accordingly. This claim is therefore moot.
See Johnson v. Horn, 150 F.3d 276, 287 (3d Cir. 1998).

       We affirm the denial of Zacher's petition insofar as he claims the right to early
release, and we remand for dismissal of that portion of his claim relating to notification
under section 4042(b).

      A true copy.

             Attest:

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




                                          -12-
