                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             November 21, 2005
                             No. 05-12932                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                D. C. Docket No. 04-00237-CV-3-MCR/MD

CHARLES DEWAYNE WALTHER,



                                                          Petitioner-Appellant,

                                  versus

DONALD F. BAUKNECHT,
Warden,

                                                        Respondent-Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      _________________________
                           (November 21, 2005)


Before BIRCH, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
      Charles Dewayne Walther, a pro se federal prisoner, appeals the district

court's dismissal of his petition for writ of habeas corpus filed pursuant to 28

U.S.C. § 2241, in which he argued that the Bureau of Prisons ("BOP") abused its

discretion under 18 U.S.C. § 3621(e)(2)(B) when it refused to reduce his sentence

after he completed a drug abuse program. Walther further argues that the district

court erred in denying his motion to amend his § 2241 petition to include a claim

under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Finding no

reversible error, we AFFIRM.

                                I. BACKGROUND

      On 7 November 2001, Walther pled guilty to conspiracy to manufacture and

possess with intent to distribute 500 grams or more of methamphetamine, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), and 846. He received a three-

level increase pursuant to U.S.S.G. § 2D1.1(b)(5) (2001) because his offense

involved the production of methamphetamine and created a substantial harm to

human life and the environment. In applying the three-level increase, the probation

officer wrote that “anhydrous ammonia is highly volatile and could create serious

injury to human life if it exploded. Therefore, the mere transportation of this

hazardous substance created serious risk to others, either on the roadway or at the

location where the ‘cooks’ . . . took place.” R1-1 at unnumbered13.



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      While in prison, Walther entered into a court-ordered drug abuse program.

After completing the program, he applied for a reduction in sentence pursuant to 18

U.S.C. § 3621(e)(2)(B), which provides the BOP with the discretion to reduce the

sentence for a “prisoner convicted of a nonviolent offense . . . after successfully

completing a treatment program.” In denying the reduction, the BOP cited the

three-level increase in Walther’s sentence for possessing anhydrous ammonia,

which he used to process methamphetamine. The BOP concluded that anhydrous

ammonia was an explosive material and that Walther therefore was ineligible for a

reduction in accordance with the BOP’s Program Statement 5162.04,

Categorization of Offenses. The Program Statement disallows reduction for an

inmate “whose current offense is a felony that: involved the carrying, possession,

or use of . . . explosives (including any explosive material or explosive device).”

R1-1 at unnumbered 10.

      After exhausting his administrative remedies, Walther, on 2 July 2004, filed

a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2241, challenging the

BOP’s determination that he was ineligible for a sentence reduction. Since the

proper party respondent to a § 2241 habeas corpus petition is the custodian of the

prisoner, Walther properly named Donald F. Bauknecht, Warden, Federal Prison

Camp, Pensacola, Florida, as respondent in his petition. See Braden v. 30th



                                           3
Judicial Circuit Court of Kentucky, 410 U.S. 484, 495, 93 S. Ct. 1123, 1130

(1973). On 4 August 2004, Walther filed a motion for leave to file supplemental

authority to his petition in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct.

2531 (2004). In that motion, Walther argued that, under Blakely, the trial court

had violated his constitutional rights by increasing his sentence beyond the

standard range without a jury finding or admission as to the facts underlying the

enhancement. Concluding that Blakely is not retroactively applicable on collateral

review, the district court denied his motion on 9 August 2004.

      In his response to Walther’s § 2241 petition, Bauknecht argued that the

petition should be denied for two reasons. First, he argued that the U.S. Supreme

Court has upheld the BOP’s regulation implementing 18 U.S.C. § 3621(e) and has

ruled that the BOP may categorically deny inmates early release without a case by

case consideration of the facts underlying their convictions. Second, since inmates

have no constitutional right to early release, he argued that Walther was not

entitled to due process regarding his eligibility for a sentence reduction. He also

disagreed with Walther’s more restrictive definition of “explosive material” by

stating that the definition he relied upon, 18 U.S.C. § 841, was not controlling.

      Walther’s reply to Bauknecht’s response reiterated the same basic arguments

that were included in his original habeas petition and attached exhibits. These



                                          4
arguments included (1) that the BOP defined “explosive material” without notice

and comment, (2) that the BOP did not define “explosive material” in the same

way as 18 U.S.C. § 841, and (3) that the BOP’s inclusion of anhydrous ammonia

within the definition of “explosive material” was an unreasonable interpretation of

the controlling statute.

      On 11 April 2005, the magistrate judge recommended dismissing Walther’s

petition on the merits. The magistrate judge found that the BOP’s authority to

grant a reduction in sentence was permissive and that Walther therefore could not

state a due process claim. Citing Lopez v. Davis, 531 U.S. 230, 243, 121 S. Ct.

714, 723 (2001), the magistrate judge concluded that the BOP did not need to

consider the specific factual details of each case and that categorical exclusions for

offenses like Walther’s was an appropriate exercise of discretion under 18 U.S.C.

§ 3621(e)(2)(B).

      On 27 April 2005, the district court adopted the magistrate judge’s report

and recommendation and denied Walther’s petition. On 11 May 2005, Walther

mailed a notice of appeal which was filed on 13 May 2005. In his appeal, Walther

raises two issues. First, he argues that the district court erred in finding that the

BOP did not abuse its discretion in denying him a sentence reduction. Second, he

argues that the district court erred in denying his motion to supplement his § 2241



                                            5
petition in light of Blakely.

                                 II. DISCUSSION

A. Denial of Sentence Reduction

      Since this is an appeal from the final judgment of a district court in a 28

U.S.C. § 2241 civil case, we have jurisdiction over this case pursuant to 28 U.S.C.

§ 1291. The availability of habeas relief under § 2241 presents a question of law

that we review de novo. Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir. 2000).

      According to 18 U.S.C. § 3621(e)(2)(B), “[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.”

The Court has held that this wording grants the BOP “the authority, but not the

duty, . . . to reduce [the prisoner’s] term of imprisonment.” Lopez v. Davis, 531

U.S. 230, 241, 121 S. Ct. 714, 722 (2001). Moreover, in exercising that authority,

the BOP may “rely on rulemaking to resolve certain issues of general

applicability,” and then may make categorical exclusions based on those rules. Id.

at 244, 121 S. Ct. at 723-24 (internal quotations omitted).

      In exercising this discretion, the BOP promulgated a Program Statement,

designed to define the statute. See 28 C.F.R. § 550.58. The Program Statement



                                          6
includes “[i]nmates whose current offense is a felony . . . that involved the

carrying, possession, or use of a firearm or other dangerous weapon or explosives

(including any explosive material or explosive device)” in its list of categories of

inmates the BOP chose to exclude from eligibility. Id. § 550.58(a)(1)(vi) &

(a)(1)(vi)(B). The Court has held that the BOP’s Program Statement is a

reasonable exercise of administrative discretion because 18 U.S.C. § 3621(e)(2)(B)

manifests Congressional concern for preconviction behavior and the BOP is

therefore justified in considering that behavior when making categorical

exclusions. Lopez, 531 U.S. at 243, 121 S. Ct. at 723. When preconviction

conduct indicates a willingness to endanger the lives of others, the BOP’s

categorical exclusion is a reasonable interpretation of statutory intent because the

statute states that only nonviolent offenders are eligible. See id. at 243-44, 121 S.

Ct. at 723-24. We have held that the proper question when reviewing such a

categorical exclusion is whether the BOP’s interpretation of the statute was

reasonable. Cook, 208 F.3d at 1320. Upon review of the record and both parties’

briefs, we discern no error.

      Walther claims that the BOP’s determination was not reasonable because he

used anhydrous ammonia, a chemical that is not traditionally recognized as an

explosive, to make methamphetamine. For support, he relies on the definition of



                                           7
“explosive material” contained in 18 U.S.C. § 841(c). However, the plain

language of 18 U.S.C. § 841(c) states that the definitions are for terms as used in

Chapter 40 of Title 18. The BOP’s Program Statement is not part of Chapter 40 of

Title 18, and so is not governed by the definitions therein. Moreover, Walther does

not argue that there is no danger in making methamphetamine, and his PSI stated

that he received an increase in his sentence because the risk that the anhydrous

ammonia would explode, either in transport or while making methamphetamine,

posed a cognizable danger to the public. Since Walther’s sentence accounted for

his willingness to endanger others in order to make methamphetamine, it is

reasonable for the BOP also to consider the dangerous nature of his offense, in

light of the wording of 18 U.S.C. § 3621(e)(2)(B).

      Additionally, Walther, referring generally to the tools of statutory

construction cited in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 104 S. Ct. 2778 (1984), invokes the rule of lenity and argues that we

should resolve any ambiguity in the definition of “explosive material” in his favor.

The rule of lenity holds that “where there is an ambiguity in a criminal statute,

doubts are resolved in favor of the defendant.” United States v. Bass, 404 U.S.

336, 348, 92 S. Ct. 515, 523 (1971). Even assuming that 18 U.S.C. §

3621(e)(2)(B) is a criminal statute, Congress has vested the BOP with express



                                           8
discretion in the application and administration of this statute. See id. (“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”)

(emphasis added). Thus, “[r]ather than apply a presumption of lenity to resolve the

ambiguity, Chevron requires that we defer to the agency’s reasonable construction

of the statute. [Chevron] deference is a tool of statutory construction whereby

courts are instructed to defer to the reasonable interpretations of expert agencies

charged by Congress to fill any gap left, implicitly or explicitly, in the statutes they

administer.” Yi v. Fed. Bureau of Prisons, 412 F.3d 526, 535 (4th Cir. 2005)

(internal quotations omitted). Having previously concluded that the BOP

reasonably interpreted 18 U.S.C. § 3621(e)(2)(B), we therefore conclude that the

rule of lenity is inapplicable.

       Walther also argues that the BOP deprived him of notice and the opportunity

to comment before it applied the categorical exclusion included in the BOP

Program Statement. However, a BOP Program Statement is analogous to an

interpretative rule, and thus does not require notice and comment. Cook, 208 F.3d

at 1319. For the foregoing reasons, the district court did not err in denying

Walther’s § 2241 petition.

B. Blakely Appeal



                                            9
      Under Federal Rule of Appellate Procedure 3(c)(1)(A)-(C), a notice of

appeal must “specify the party or parties taking the appeal . . . designate the

judgment, order, or part thereof being appealed; and . . . name the court to which

the appeal is taken.” Under Federal Rule of Appellate Procedure 4(a)(1)(B), a

notice of appeal in a civil case in which the United States or its officer or agency is

a party must be filed “within 60 days after the judgment or order appealed from is

entered.” “If a document filed within the time specified by Rule 4 gives the notice

required by Rule 3, it is effective as a notice of appeal.” Smith v. Barry, 502 U.S.

244, 248-49, 112 S. Ct. 678, 682 (1992). However, a notice of appeal for a civil

case that is filed after the statutory deadline, even if only one day, is not timely.

See NAACP of La. v. Michot, 480 F.2d 547, 548 (5th Cir. 1973) (per curiam).

Furthermore, although pro se pleadings are construed liberally, the district court

cannot serve as de facto counsel for pro se litigants, informing them of the

appropriate procedural steps to take during litigation. GJR Invs., Inc. v. County of

Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998).

      In this case, the district court’s order denying Walther’s motion to include

the Blakely issue was dated 9 August 2004. The district court's order of dismissal

regarding the rest of Walther's § 2241 petition was dated 27 April 2005. Walther's

notice of appeal was filed on 13 May 2005, but only referenced the district court’s



                                           10
27 April 2005 order and the issues contained therein. Walther's brief was mailed

on 28 June 2005 and was filed on 1 July 2005. The brief includes all the

information necessary to constitute a notice of appeal, but it is dated more than 60

days after the final order denying Walther’s petition was entered. Thus, notice was

not timely filed as to the Blakely issue, and we do not have jurisdiction to consider

it.

                                III. CONCLUSION

      Walther argues that the district court erred in ruling that the BOP did not

abuse its discretion in refusing to reduce his sentence. We conclude that the

district court did not err in ruling that the BOP was within its discretion in denying

Walther a sentence reduction. Walther next argues that the district court erred in

its order denying his motion to include the Blakely issue. We conclude that

Walther’s notice of appeal on this issue was not timely filed and therefore we will

not consider it. Accordingly, the judgment of the district court is AFFIRMED.




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