                     Revised November 24, 1998

               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                         _____________________

                             No. 98-50177

                            Summary Calendar
                         _____________________


          CHARLES A RUBLEE,

                                 Petitioner-Appellee,

          v.

          L E FLEMING,

                                 Respondent-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
_________________________________________________________________
                          November 6, 1998
Before KING, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:

     Charles Rublee (Rublee), a federal prisoner, appeals the

district court’s dismissal of his 28 U.S.C. § 2241 petition

challenging the execution of his sentence.       For the reasons that

follow, we affirm the decision of the district court.

                            I.   BACKGROUND

     According to his petition, Rublee was arrested for a drug

offense involving marijuana and was released on bond.      After he

failed to appear, a warrant for Rublee’s arrest issued.      Rublee
was located in Colombia, and was returned to the United States

where he pled guilty to a single-count indictment charging him

with a violation of 21 U.S.C. § 841(a)(1).   On January 6, 1997,

the trial court sentenced him to thirty-three months of

imprisonment and three years of supervised release.

     While in prison, Rublee participated in and completed a 500-

hour residential drug-treatment program which provisionally

qualified him for early release under 18 U.S.C. § 3621(e)(2)(B).1

During the course of his treatment, he was considered for

placement in a community corrections center (CCC) (a type of

half-way house where inmates receive community-based treatment),

but, on July 31, 1997, Rublee was denied placement due to concern

that he would be a flight risk.   The denial of the request for

CCC placement disqualified Rublee from early release under Bureau

of Prisons (BOP) regulations.   Rublee filed grievances with the

warden, the regional director, and the BOP national

administrative inmate appeals division requesting administrative

review of the decision to deny him CCC placement and a § 3621(e)

early release.   All of Rublee’s requests for administrative

relief were denied.

     On November 7, 1997, Rublee filed a § 2241 petition in the

district court arguing that the BOP exceeded its authority by

requiring that a prisoner be eligible to participate in a

     1
         Rublee completed the treatment program on February 27,
1998.

                                  2
community-based drug-treatment program to be eligible for a

§ 3621(e) sentence reduction, and that the BOP’s requirements

were arbitrary and a violation of his constitutional rights.        The

magistrate judge, citing Venegas v. Henman, 126 F.3d 760, 765

(5th Cir. 1997), cert. denied, 118 S. Ct. 1679 (1998), concluded

that the BOP’s policy of refusing to grant § 3621(e) sentence

reductions to inmates ineligible for community-based treatment

was within the discretion afforded the BOP under § 3621.      The

magistrate judge recommended dismissal of Rublee’s § 2241

petition.    On February 5, 1998, the district court adopted the

magistrate judge’s recommendation and dismissed Rublee’s § 2241

petition.    Rublee timely appealed.2

                           II.   DISCUSSION

     A.     Promulgation of 28 C.F.R. § 550.58(a)(1)(v)

     Section 3621(b) provides that “[t]he Bureau shall make

available appropriate substance abuse treatment for each prisoner

the Bureau determines has a treatable condition of substance

addiction or abuse.”    18 U.S.C. § 3621(b).   Section 3621(e)(1)

states that in order for the BOP to carry out this requirement,

it “shall . . . provide residential substance abuse treatment

(and make arrangements for appropriate aftercare).”       Id. §

3621(e)(1).




     2
         Rublee’s projected release date is November 8, 1998.

                                   3
     The statute defines “residential substance abuse treatment”

as “a course of individual and group activities, lasting between

6 and 12 months, in residential treatment facilities set apart

from the general prison population.”   Id. § 3621(e)(5)(A).    The

statute defines “aftercare” as “placement, case management and

monitoring of the participant in a community-based substance

abuse treatment program when the participant leaves the custody

of the Bureau of Prisons.”   Id. § 3621(e)(5)(C).   As an incentive

for prisoners to participate in the drug treatment program,

     [t]he 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.

Id. § 3621(e)(2)(B).

     Under BOP regulations, certain categories of inmates are not

eligible for early release, including “[i]nmates who are not

eligible for participation in a community-based program as

determined by the Warden on the basis of his or her professional

discretion.”   28 C.F.R. § 550.58(a)(1)(v).   The BOP policy

statement expresses the BOP’s belief that a community-based

program (either in a CCC or on home confinement) is necessary to

achieve successful results. See 61 Fed. Reg. 25,121 (1996).

     Rublee argues that the BOP exceeded its authority by

requiring completion of a community-based drug program as a

component of the drug treatment program necessary to be eligible


                                 4
for early release under § 3621(e)(2)(B).    He contends that the

definitions of “residential substance abuse treatment” and

“aftercare” in § 3621(e)(5) are unambiguous and that the plain

language of the statute indicates that a community-based drug

program is not a component of the drug program described in

§ 3621.

       This court reviews the BOP’s regulations in § 550.58 under

the two-step standard set forth in Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

See Wottlin v. Fleming, 136 F.3d 1032, 1035 (5th Cir. 1998).

First, if the intent of Congress is clear and unambiguously

expressed in § 3621, the BOP and the court must give effect to

congressional intent.    See id. (citing Chevron, 467 U.S. at 842-

43).    Second, if the statutory language is ambiguous or silent on

a particular issue, then we must determine whether the BOP’s

interpretation is “‘based on a permissible construction of the

statute.’”    Id. (quoting Chevron, 467 U.S. at 843).

       Although this circuit has held that § 3621(e)(2)(B) gives

the BOP discretion to determine which prisoners are eligible for

early release and that the “BOP did not abuse its discretion in

promulgating 28 C.F.R. § 550.58,” id. at 1036, neither this nor

any other circuit has addressed specifically whether the BOP

exceeded its authority in promulgating 28 C.F.R.

§ 550.58(a)(1)(v), which disqualifies prisoners not eligible for

community-based treatment from receiving early release under

                                  5
§ 3621(e)(2)(B).    Because the language of the statute does not

unambiguously prohibit the BOP’s community-based treatment

requirement, the requirement need only be a permissible

interpretation of the statute to survive Chevron scrutiny.       This

court will defer to legislative regulations so long as they are

not “‘arbitrary, capricious, or manifestly contrary to the

statute.’”    Wottlin, 136 F.3d at 1035 (citing Chevron, 467 U.S.

at 844).

     In Venegas v. Henman, this court focused on the language

“may be reduced” in § 3621(e)(2)(B), and found that it affords

the BOP discretion to determine which offenses constitute

“nonviolent offenses” eligible for early release.     See 126 F.3d

at 763.    We held that the BOP’s decision to exclude felon-in-

possession of a weapon convictions and drug convictions enhanced

for possession of a firearm was “consistent with the letter and

spirit of the Bureau’s authority as derived from section

3621(e).”    Id. at 765.

     In Wottlin v. Fleming, this court reviewed the

disqualification from § 3621(e)(2)(B) early release of “‘inmates

who have a prior felony conviction for homicide, forcible rape,

robbery, or aggravated assault.’”     136 F.3d at 1035 (quoting 28

C.F.R. § 550.58).    We agreed with the Ninth Circuit that the

language of § 3621(e)(2)(B), which provides that a prisoner’s

sentence “may be reduced” after the successful completion of a

drug-treatment program, affords the BOP broad discretion in

                                  6
deciding which inmates qualify for early release, and agreed with

the Ninth and Third Circuits that § 550.58 was not an abuse of

the BOP’s discretion.     See id. at 1035-36 (citing Stiver v. Meko,

130 F.3d 574, 577 (3d Cir. 1997); Jacks v. Crabtree, 114 F.3d

983, 984 (9th Cir. 1997), cert. denied, 118 S. Ct. 1196 (1998)).

     The Venegas and Wottlin cases stand for the proposition that

the language of § 3621(e)(2)(B) affords the BOP discretion in

deciding whether to allow early release upon completion of the

drug-treatment program described in the statute.    Rublee argues

that the plain language of the statute precludes the BOP from

requiring community-based treatment because the statutory

definition of “residential substance abuse treatment” is defined

explicitly as “a course of individual and group activities,

lasting between 6 and 12 months, in residential treatment

facilities set apart from the general prison population,” and

does not include any reference to community-based treatment.     18

U.S.C. § 3621(e)(5)(A).    However, it is the responsibility of the

BOP to determine whether an inmate has successfully completed a

drug-treatment program:    “The legislative history of section

3621(e) states that the determination of successful completion of

a substance abuse treatment program[] is to be ‘based on criteria

established and applied by the Bureau of Prisons.’”     Venegas, 126

F.3d at 762 (quoting H.R. Rep. No. 103-320 (1993)).    The BOP, “in

exercising its discretion in determining the successful



                                  7
completion of a residential drug abuse treatment program under 18

U.S.C. 3621(e), . . . therefore requir[ed] that consideration for

early release be contingent upon the inmate’s completion of

transitional services in a community-based program.”   61 Fed.

Reg. 25,121 (1996).

     Even if Rublee is correct that the BOP has improperly

expanded the definition of “residential substance abuse

treatment” by requiring community-based treatment, he still is

not entitled to the relief he seeks because § 3621(e)(2)(B)

affords the BOP broad discretion to deny sentence reductions to

even those inmates who have “successfully complet[ed] a treatment

program.”   18 U.S.C. § 3621(e)(2)(B); see Wottlin, 136 F.3d at

1035-36; Venegas, 126 F.3d at 763-65.   Under § 3621(e)(2)(B), the

BOP “may,” but implicitly need not, reduce the sentences of such

inmates.3   Therefore, it has the authority to make

§ 3621(e)(2)(B) early release contingent upon the fulfillment of

the community-based treatment requirement.

     Rublee next argues that the BOP’s requirement that an inmate

complete community-based treatment prior to early release

subverts the definition of “aftercare,” which requires community-


     3
        Rublee contends that “[s]ection 3621(e)(2) plainly and
unambiguously authorizes sentence reduction for prisoners
convicted of a nonviolent offense who successfully complete a 6
to 12 month residential substance abuse treatment program while
in prison.” Rublee is correct that the BOP is authorized to
allow sentence reductions for such prisoners. However, it is not
required to do so.

                                 8
based treatment after “the participant leaves the custody of the

Bureau of Prisons.”   18 U.S.C. § 3621(e)(5)(C).   The definition

of “aftercare” set forth in § 3621(e)(5)(C) and the requirement

that the BOP “make arrangements for appropriate aftercare,” id.

§ 3621(e)(1), do not preclude the BOP from exercising its

discretion under § 3621(e)(2)(B) to require pre-release

community-based treatment before awarding a sentence reduction.

The provisions are not mutually exclusive.

     Finally, Rublee argues that the BOP’s community-based

treatment requirement is impermissible because it conflicts with

the BOP’s earlier interpretation of the statute that did not

require community-based treatment.   See 61 Fed. Reg. 25,121

(1996).   The court does not find this argument compelling.    The

BOP added the community-based treatment requirement after

receiving public comment, including a comment from the American

Psychiatric Association (APA) that expressed the belief that the

BOP’s requirement of one hour per month of transitional services

would be insufficient to facilitate good results.    See id.

Therefore, the BOP did not abuse its discretion in adding the

community-based treatment requirement to its regulations.

     The exclusion of prisoners who cannot complete community-

based treatment from § 3621 early release is not arbitrary or

capricious and does not conflict with the purposes underlying the




                                 9
statute.   Therefore, we hold that 28 C.F.R. § 550.58(a)(1)(v) is

a permissible exercise of the BOP’s discretion under § 3621(e).4

     B. Constitutional Claims

     Rublee argues that the application of § 550.58 to him

violates his rights to due process and equal protection.

Liberally construed, Rublee’s due process argument is that he had

a protected liberty interest in a sentence reduction once he

completed the residential drug-treatment program.    He further

argues that the BOP’s community-based treatment requirement

violates equal protection because completion of a drug program in

a half-way house is not rationally related to the successful

completion of the drug program described in § 3621 and because it

discriminates against prisoners not eligible for CCC placement.

     Rublee’s argument that he had a protected liberty interest

in receiving the sentence reduction lacks merit.    A protected

liberty interest exists only when a regulation uses “‘mandatory

language to place a substantive limit on official discretion.’”

Wottlin, 136 F.3d at 1036 (quoting United States v. Tubwell, 37

F.3d 175, 179 (5th Cir. 1994)).    There is no mandatory language

requiring that inmates be released upon completion of the drug-


     4
        Rublee also argues that the limitation of § 3621(e) early
release to those inmates who complete community-based treatment
produces absurd and unconstitutional results because inmates can
be denied CCC placement for numerous reasons that bear no
relation to their ability to complete the drug-treatment program
defined in the statute. This argument will be addressed infra in
the analysis of Rublee’s constitutional claims.

                                  10
treatment program, and thus Rublee had no protected liberty

interest in receiving a § 3621(e)(2)(B) sentence reduction.       See

id.

      With respect to Rublee’s equal protection argument,

“[s]trict scrutiny is appropriate only where a government

classification implicates a suspect class or a fundamental

right.”   Id. (citing City of Cleburne, Tex. v. Cleburne Living

Ctr., 473 U.S. 432 (1985)).    Otherwise, rational-basis review

applies and this court need only determine whether the

classification is rationally related to a legitimate government

interest.   See id. at 1037.

      The BOP’s classification implicates neither a fundamental

right nor a suspect class.     In Wottlin, we refused to recognize a

fundamental right to early release “‘among the rights and

liberties protected by the Constitution.’”     Id. at 1036-37

(quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,

29 (1973)).5   Nor does the classification of prisoners by their

eligibility for CCC placement implicate a suspect class.

      Thus, rational-basis review is appropriate.   The exclusion

from early release of those inmates ineligible for community-

based treatment survives rational-basis review.     In promulgating

      5
        In Wottlin, we also held that classification of prisoners
based on the type of offense for which they were convicted did
not implicate a suspect class, and that the classification was
rationally related to Congress’s intent to afford early release
only to prisoners convicted of nonviolent offenses. See Wottlin,
136 F.3d at 1036-37.

                                  11
the regulation, the BOP took account of the APA’s concern about

the efficacy of transitional drug-treatment services in an

institutional context.    See 61 Fed. Reg. 25,121 (1996).    The BOP

agreed with the APA that enhanced transitional services were

necessary for the successful completion of the drug program, and

decided to require community-based treatment to increase the

opportunity for positive results.      See id.   This requirement is

rationally related to the legitimate government interest of

reducing recidivism, which is a stated purpose underlying

§ 3621(e).   See Venegas, 126 F.3d at 763 (citing H.R. Rep. No.

103-320 (1993)).   Accordingly, there is a rational basis for the

categorization contained in § 550.58(a)(1)(v) and Rublee’s

constitutional challenges fail.

                          III.   CONCLUSION

     For the foregoing reasons, we AFFIRM the decision of the

district court.    Rublee’s motion to expedite the appeal is denied

as moot.




                                  12
