DLD-154                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 11-1052
                                       ___________

                                 HERBERT SPERLING,
                                            Appellant

                                             v.

                             WARDEN DAVID EBBERT
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. Civil No. 10-cv-00191)
                     District Judge: Honorable Richard P. Conaboy
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    March 31, 2011

                  Before: BARRY, FISHER and ROTH, Circuit Judges

                              (Opinion filed: July 20, 2011)
                                       _________

                                        OPINION
                                        _________

PER CURIAM.

       In 1973, the United States District Court for the Southern District of New York

imposed a sentence of life imprisonment upon Herbert Sperling following his conviction

for, inter alia, organizing a continuing criminal narcotics enterprise. See United States v.
Sperling, 506 F.2d 1323, 1344 (2d Cir. 1974) (“The record shows that Sperling was the

operational kingpin of a highly organized, structured and on-going narcotics network.”).

Sperling, now age seventy-two, is currently serving the sentence at FCI-Allenwood in

Pennsylvania. In January 2010, he filed a pro se petition for a writ of habeas corpus

under 28 U.S.C. § 2241 in the United States District Court for the Middle District of

Pennsylvania, claiming that the Bureau of Prisons (“BOP”) has improperly deemed him

ineligible for the Elderly Offender Home Detention Pilot Program (“EOHDPP”) because

he is serving a sentence of life imprisonment. The District Court denied the habeas

petition, concluding that Sperling is prohibited by statute, 42 U.S.C. § 17541(g), from

eligibility for the EOHDPP, and that the BOP has reasonably construed the governing

statute to exclude life-sentenced inmates. Sperling timely filed this appeal.

       We have appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary

review over the District Court’s legal conclusions. Woodall v. Fed. Bur. of Prisons, 432

F.3d 235, 239 n.3 (3d Cir. 2005).

       The Second Chance Act of 2007 established the EOHDPP by directing the

Attorney General to conduct a two-year pilot program “to determine the effectiveness of

removing eligible elderly offenders from a [BOP] facility and placing such offenders on

home detention until expiration of the prison term to which the offender was sentenced.”

42 U.S.C. § 17541(g)(1)(A) (emphasis added). The sole question here is whether

Sperling is an “eligible elderly offender” despite serving a term of life imprisonment.

       The statute defines “eligible elderly offender” to require that an inmate meet
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several criteria in order to participate in the pilot program, including the following:

              The term “eligible elderly offender” means an offender in the
              custody of the Bureau of Prisons--
              (i) who is not less than 65 years of age; [and]
              (ii) who is serving a term of imprisonment that is not life
              imprisonment based on conviction for an offense or offenses
              that do not include any crime of violence …, sex offense …,
              offense described in section 2332b(g)(5)(B) of title 18, United
              States Code, or offense under chapter 37 of title 18, United
              States Code …, and has served the greater of 10 years or 75
              percent of the term of imprisonment to which the offender
              was sentenced[.]

42 U.S.C. § 17541(g)(5)(A)(ii) (emphasis added).

       On February 5, 2009, the BOP issued Operations Memorandum No. 003-2009

(5392) to provide guidance to its staff in administering the EOHDPP. The Memorandum

explains that inmates must meet all statutory eligibility criteria to participate in the

EOHDPP. With regard to life sentences, the Memorandum explains that “[i]nmates

serving life sentences are not eligible to participate in the pilot program because it is not

possible to calculate 75% of a life sentence.”

       Sperling argues that the BOP has erred in determining eligibility for the EOHDPP

because, as he reads § 17541(g)(5)(A)(ii), Congress did not exclude life-sentenced

inmates per se, but rather identified only certain crimes for which a life sentence bars

eligibility, such as a “crime of violence” or “sex offense.” Sperling thus argues that his

life sentence does not render him ineligible under § 17541(g)(5)(A)(ii). Sperling’s

argument, however, turns on an insupportable construction of the statutory language.

       Section 17541(g)(5)(A)(ii) provides in relevant part that an eligible offender is one
                                               3
“serving a term of imprisonment that is not life imprisonment based on conviction for an

offense or offenses that do not include any crime of violence, [sex offense, and other

specified offense.]” The phrase “that is not life imprisonment” clearly modifies “term of

imprisonment” so as to provide that only those offenders serving a term of imprisonment

that is not for life (and those serving a term of imprisonment for offenses that do not

include any crime of violence or other listed offenses) are eligible for the EOHDPP. The

statute is not phrased, as Sperling would have it, to grant eligibility to inmates serving life

terms so long as the life term was not imposed upon conviction for any crime of violence

or other offense listed in the statute. That is not a natural or even plausible reading of the

statutory language.

       “If the intent of Congress is clear, that is the end of the matter; for the court, as

well as the agency, must give effect to the unambiguously expressed intent of Congress.”

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); see

Madison v. Resources for Human Dev., Inc., 233 F.3d 175, 185 (3d Cir. 2000) (“It is

well-settled that if a statute unambiguously expresses Congress’s intent, courts must give

effect to that intent.”). The District Court properly concluded that Sperling is entitled to

no relief in light of the expressed intent in § 17541(g)(5)(A)(ii) to exclude life-sentenced

inmates from the definition of “eligible elderly offender.”

       Alternatively, even assuming, arguendo, that the language of § 17541(g)(5)(A)(ii)

alone does not conclusively resolve this matter, we find the BOP’s interpretation of the

statute reasonable and persuasive. As the BOP observes in its Operations Memorandum,
                                               4
it is not possible to render an eligibility determination for a life-sentenced inmate while

doing service to the express statutory requirement that an offender “has served the greater

of 10 years or 75 percent of the term of imprisonment to which the offender was

sentenced.” § 17541(g)(5)(A)(ii). This criterion of at least 75 percent service before

eligibility would be rendered meaningless, or at best unworkable, if it were applied to

inmates serving terms that run for the duration of their natural lives. The BOP has thus

properly interpreted § 17541(g)(5)(A)(ii) to exclude life-sentenced inmates “so that effect

is given to all [the statute’s] provisions, so that no part will be inoperative or superfluous,

void, or insignificant.” Erienet, Inc. v. Velocity Net, 156 F.3d 513, 516 (3d Cir. 1998)

(quotation marks omitted). Finally, while “informal agency interpretations of statutes,

such as the BOP Operations Memorandum here, are not subject to deference,” Izzo v.

Wiley, 620 F.3d 1257, 1259 (10th Cir. 2010), Sperling offers no viable argument that the

BOP’s interpretation of § 17541(g)(5)(A)(ii) is anything but the correct one.

       In sum, the District Court properly denied Sperling’s habeas corpus petition

because the BOP acted consistently with the controlling statutory authority in deeming

him ineligible for the EOHDPP. Because this appeal from the denial of Sperling’s

habeas petition presents “no substantial question,” 3d Cir. LAR 27.4 and I.O.P. 10.6, we

will affirm the District Court’s judgment.




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