                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

CHARLES ARRINGTON,                    
              Petitioner-Appellant,
                                           No. 06-35855
                v.
                                            D.C. No.
CHARLES DANIELS, Warden                   CV-05-01352-HA
Sheridan FCI; BUREAU OF PRISONS,
           Respondents-Appellees.
                                      

ISMAEL RODRIGUEZ,                     
             Petitioner-Appellant,          No. 06-36092
               v.                            D.C. No.
CHARLES DANIELS, Warden,                  CV-06-00317-ALH
             Respondent-Appellee.
                                      

ANTWANE BURRISE,                      
             Petitioner-Appellant,          No. 07-35013
               v.                           D.C. No.
CHARLES DANIELS, Warden,                  CV-05-01872-HA
            Respondent-Appellee.
                                      




                           1497
1498               ARRINGTON v. DANIELS



MICK WILLIAMS,                       
             Petitioner-Appellant,
                                            No. 07-35023
               v.
                                             D.C. No.
CHARLES A. DANIELS, Warden;               CV-05-01346-ALH
BUREAU OF PRISONS,
           Respondents-Appellees.
                                     

DOMINIQUE E. JIMERSON,               
             Petitioner-Appellant,
                                           No. 07-35082
                v.
                                            D.C. No.
CHARLES A. DANIELS, Warden;               CV-05-01359-HA
BUREAU OF PRISONS,
           Respondents-Appellees.
                                     

RICHARD E. STURDEVANT,               
             Petitioner-Appellant,
                                           No. 07-35084
               v.
                                            D.C. No.
CHARLES A. DANIELS, Warden;               CV-05-01357-HA
BUREAU OF PRISONS,
           Respondents-Appellees.
                                     

GREGORY VILLAFRANCO,                 
             Petitioner-Appellant,
                                           No. 07-35085
               v.
                                            D.C. No.
CHARLES A. DANIELS, Warden;               CV-05-01355-HA
BUREAU OF PRISONS,
           Respondents-Appellees.
                                     
                    ARRINGTON v. DANIELS               1499



OCTABIAN J. RILEY,                    
              Petitioner-Appellant,
                                             No. 07-35086
                v.
                                              D.C. No.
CHARLES A. DANIELS, Warden, FCI            CV-05-01342-ALH
Sheridan,
             Respondent-Appellee.
                                      

ALVIN GEORGE WALKER,                  
             Petitioner-Appellant,          No. 07-35087
               v.                            D.C. No.
CHARLES A. DANIELS, Warden,                CV-05-01348-HA
            Respondent-Appellee.
                                      

NORMAN AGUILAR, JR.,                  
              Petitioner-Appellant,
                                             No. 07-35088
                v.
                                              D.C. No.
CHARLES A. DANIELS, Warden,                CV-05-01343-ALH
Sheridan Correctional Institution,
             Respondent-Appellee.
                                      

HANDI IBRAHIM,                        
              Petitioner-Appellant,
                                             No. 07-35089
                v.
                                              D.C. No.
CHARLES A. DANIELS, Warden,                CV-05-01344-ALH
Sheridan Correctional Institution,
             Respondent-Appellee.
                                      
1500                ARRINGTON v. DANIELS



STEVEN RAJ,                           
              Petitioner-Appellant,         No. 07-35090
                v.                           D.C. No.
CHARLES   A. DANIELS, Warden,              CV-05-01347-HA
              Respondent-Appellee.
                                      

THEODORE VANDERHOOF,                  
            Petitioner-Appellant,           No. 07-35091
              v.                             D.C. No.
CHARLES A. DANIELS, Warden,                CV-05-01345-HA
            Respondent-Appellee.
                                      

JUAN DELOCHA VAUGHN,                  
             Petitioner-Appellant,
                                             No. 07-35092
               v.
                                              D.C. No.
CHARLES DANIELS, Warden;                   CV-05-01354-ALH
BUREAU OF PRISONS,
          Respondents-Appellees.
                                      

MILTON THOMAS,                        
             Petitioner-Appellant,
                                             No. 07-35093
               v.
                                              D.C. No.
CHARLES DANIELS, Warden;                   CV-05-01351-ALH
BUREAU OF PRISONS,
          Respondents-Appellees.
                                      
                       ARRINGTON v. DANIELS                    1501



BENNY RAY MARTIN,                        
             Petitioner-Appellant,
                                                No. 07-35094
               v.
                                                 D.C. No.
CHARLES DANIELS, Warden;                      CV-05-01350-ALH
BUREAU OF PRISONS,
          Respondents-Appellees.
                                         

ERIC SISCO,                              
             Petitioner-Appellant,
                                                No. 07-35097
               v.
                                                 D.C. No.
CHARLES DANIELS, Warden;                      CV-05-01418-ALH
BUREAU OF PRISONS,
          Respondents-Appellees.
                                         

ALBERT CHUNG HUH,                              No. 07-35884
             Petitioner-Appellant,
               v.                                D.C. No.
                                               CV-06-01540-HA
CHARLES DANIELS, Warden,
                                                  OPINION
            Respondent-Appellee.
                                         
        Appeal from the United States District Court
                 for the District of Oregon
        Ancer L. Haggerty, District Judge, Presiding

                     Argued and Submitted
                         July 9, 2007*

  *The panel unanimously finds 07-35884 suitable for decision without
oral argument as of February 20, 2008. See Fed. R. App. P. 34(a)(2).
1502              ARRINGTON v. DANIELS
                Filed February 20, 2008

  Before: Stephen Reinhardt, Cynthia Holcomb Hall, and
            Milan D. Smith, Jr., Circuit Judges.

              Opinion by Judge Reinhardt
1504                 ARRINGTON v. DANIELS


                         COUNSEL

Stephen R. Sady, Esq., Chief Deputy Federal Public
Defender, Portland, Oregon, for the petitioners.

Karin J. Immergut, Esq., Kelly A. Zusman, Esq., United
States Department of Justice, Portland, Oregon, for the
respondent.


                          OPINION

REINHARDT, Circuit Judge:

   This case is the most recent in a series of challenges to the
Bureau of Prisons’ (“Bureau” or “BOP”) implementing regu-
lation governing early release of prisoners who successfully
complete a residential substance abuse program. The relevant
statute provides that the Bureau may reduce by up to one year
the prison term of an inmate convicted of a nonviolent felony
if the prisoner successfully completes such a program. 18
U.S.C. § 3621(e)(2)(B). The Bureau’s implementing regula-
tion categorically excludes from eligibility for early release
under the law those whose “current offense is a felony . . . .
[t]hat involved the carrying, possession, or use of a firearm or
other dangerous weapon or explosives[.]” 28 C.F.R.
§ 550.58(a)(1)(vi)(B)(2000). The question presented is
whether the Bureau of Prisons violated Section 706(2)(A) of
                          ARRINGTON v. DANIELS                          1505
the Administrative Procedure Act (“APA”) when it promul-
gated this regulation. We hold that it did.

           I.   Factual and Procedural Background

   Title 18 U.S.C. § 3621 governs the imprisonment of per-
sons convicted of federal crimes. In 1990, Congress amended
the statute by directing the Bureau of Prisons to provide resi-
dential substance abuse treatment programs for prisoners
determined to have a treatable condition of substance addic-
tion or abuse. Crime Control Act of 1990, Pub. L. No. 101-
647, § 2903, 104 Stat. 4789, 4913 (codified at 18 U.S.C.
§ 3621(b)). Four years later, in response to under-utilization
of treatment programs, Congress again amended the statute to
provide an early release incentive to encourage prisoner par-
ticipation. Violent Crime Control and Law Enforcement Act
of 1994, 103 Pub. L. No. 322, § 32001, 108 Stat. 1796, 1896-
97. The statute provides that the Bureau may reduce by up to
one year the sentence of a prisoner who (1) was convicted of
a nonviolent offense and (2) successfully completes a pro-
gram of residential substance abuse treatment. 18 U.S.C.
§ 3621(e)(2)(B).

   In May 1995, the Bureau promulgated its first rule and cor-
responding regulation detailing procedures to determine eligi-
bility for early release under § 3621(e). 60 Fed. Reg. 27692
(May 25, 1995); 28 C.F.R. § 550.58 (1995). In defining “non-
violent offense,” the Bureau relied on the definition of “crime
of violence” contained in 18 U.S.C. § 924(c)(3).1 The regula-
tion rendered ineligible for early release those “inmates whose
current offense is determined to be a crime of violence as
defined in 18 U.S.C. § 924(c)(3).” 28 C.F.R. § 550.58 (1995).
  1
    Title 18 U.S.C. § 924(c)(3)(A)-(B) defines a “crime of violence” as a
felony that “has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or . . . that by its
nature, involves a substantial risk that physical force against the person or
property of another may be used in the course of committing the offense.”
1506                      ARRINGTON v. DANIELS
In a program statement issued several months later, the
Bureau purported to further restrict eligibility under the stat-
ute by categorizing as “crimes of violence” firearms convic-
tions under 18 U.S.C. § 922(g) as well as drug trafficking
convictions under 21 U.S.C. § 841 or § 846, if the offender
received a two-level enhancement for weapons possession
under United States Sentencing Commission Guidelines Man-
ual § 2D1.1(b)(1). Bureau of Prisons Program Statement No.
5162.02, §§ 7, 9 (July 24, 1995).2

   We subsequently held that neither of these disqualifications
was for a “crime[ ] of violence” under the statutory definition
contained in § 924(c)(3). See Davis v. Crabtree, 109 F.3d
566, 568-70 (9th Cir. 1997); Downey v. Crabtree, 100 F.3d
662, 666-70 (9th Cir. 1996). We concluded that the Bureau
must consider eligible for early release as nonviolent offend-
ers those with convictions under 18 U.S.C. § 922(g) as well
as those with convictions under 21 U.S.C. § 841 whether or
not they received sentencing enhancements for weapons pos-
session. See Davis, 109 F.3d at 569; Downey, 100 F.3d at 668.
Four other circuits agreed. See Fristoe v. Thompson, 144 F.3d
627, 631 (10th Cir. 1998) (holding impermissible the
Bureau’s interpretation of § 3621(e) as precluding from eligi-
bility for early release prisoners who received sentence
enhancements for nonviolent offenses); Byrd v. Hasty, 142
F.3d 1395, 1397-98 (11th Cir. 1998) (same); Martin v. Ger-
   2
     Title 18 U.S.C. § 922(g) makes it unlawful for a felon, among other
classes of persons, to possess a firearm. Title 21 U.S.C. §§ 841(a)(1) and
(2) make it unlawful “to manufacture, distribute, or dispense, or posses
with intent to manufacture, distribute, or dispense, a controlled substance,”
or “to create, distribute, or dispense, or possess with intent to distribute or
dispense, a counterfeit substance.” Title 21 U.S.C. § 846 provides that
“[a]ny person who attempts or conspires to commit any offense defined
in this title shall be subject to the same penalties as those prescribed for
the offense, the commission of which was the object of the attempt or con-
spiracy.” Section 2D1.1(b)(1) of the Sentencing Guidelines provides for a
two-level enhancement if a dangerous weapon, including a firearm, was
possessed in connection with the commission of a drug offense.
                      ARRINGTON v. DANIELS                   1507
linski, 133 F.3d 1076, 1079-80 (8th Cir. 1998) (same); Rous-
sos v. Menifee, 122 F.3d 159, 162-64 (3d Cir. 1997) (same).
Three circuits reached the opposite conclusion. See Pelissero
v. Thompson, 170 F.3d 442, 447 (4th Cir. 1999) (holding
Bureau’s definition of crime of violence was permissible);
Parsons v. Pitzer, 149 F.3d 734, 737-39 (7th Cir. 1998)
(same); Venegas v. Henman, 126 F.3d 760, 763 (5th Cir.
1997) (same).

   In response to the lack of consistency arising from the vary-
ing definitions of a nonviolent offense, the Bureau changed
course. The agency removed its reference to § 924(c)(3) from
the regulation and abandoned its attempt to determine eligibil-
ity based on an interpretation of the phrase “nonviolent
offense.” Instead, the Bureau issued an interim rule that
asserted the agency’s discretionary authority to determine eli-
gibility for early release under § 3621(e). 62 Fed. Reg. 53690
(Oct. 15, 1997) (“1997 interim rule”). The Bureau then exer-
cised its discretion to narrow the class of prisoners eligible for
early release beyond “nonviolent” offenders. The 1997
interim rule thereby purported to accomplish by different
means what the Bureau set out to achieve in its 1995 program
statement: the categorical exclusion from eligibility for early
release of those prisoners convicted of an offense “involv[ing]
the carrying, possession, or use of a firearm or other danger-
ous weapon or explosives.” 62 Fed. Reg. at 53690; 28 C.F.R.
§ 550.58(a)(vi)(B) (1998).

   Litigation once again ensued. This time challenges focused
on whether the categorical exclusion rule was a permissible
exercise of the agency’s discretion. Two circuit courts, includ-
ing our own, concluded that the 1997 interim rule was a per-
missible exercise of the Bureau’s discretion to narrow the
class of prisoners eligible for early release under § 3621(e).
See Bellis v. Davis, 186 F.3d 1092, 1095 (8th Cir. 1999);
Bowen v. Hood, 202 F.3d 1211, 1220 (9th Cir. 2000). Two
circuit courts reached the contrary result. See Ward v. Booker,
202 F.3d 1249, 1256-57 (10th Cir. 2000); Kilpatrick v. Hous-
1508                 ARRINGTON v. DANIELS
ton, 197 F.3d 1134, 1135 (11th Cir. 1999). The Supreme
Court granted certiorari to resolve the circuit split. In Lopez
v. Davis, the Court upheld the validity of the 1997 interim
rule, reasoning that the Bureau permissibly exercised the dis-
cretion afforded the agency by the statute to narrow the class
of prisoners eligible for early release. 531 U.S. 230, 239-41
(2001). Four years later, we struck down the rule on proce-
dural grounds, holding that the Bureau failed to comply with
the APA’s notice and comment provisions. Paulsen v. Dan-
iels, 413 F.3d 999, 1004 (9th Cir. 2005) (holding “[t]he
Bureau plainly violated [Section 553 of] the APA in its pro-
mulgation of the 1997 interim regulation”).

   In December 2000, the Bureau promulgated a final rule.
The final rule, identical to the 1997 interim rule, relied on the
Bureau’s discretion to narrow the class of prisoners eligible
for early release by excluding those convicted of offenses
involving the carrying, possession, or use of a firearm or other
dangerous weapon or explosives. 65 Fed. Reg. 80745, 80747-
748 (Dec. 22, 2000) (stating that “Congress did not mandate
that all eligible inmates must receive the early release incen-
tive. The reduction in sentence is an incentive to be exercised
at the discretion of the Bureau of Prisons”). The Bureau
offered the following explanation for its rule:

    The first interim rule attempted to define the term
    “crime of violence” pursuant to 18 U.S.C.
    § 924(c)(3). Due to varying interpretations of the
    regulation and caselaw, the Bureau could not apply
    the regulation in a uniform and consistent manner.

    The third interim rule sought to resolve this compli-
    cation. In the third interim rule, we used the discre-
    tion allotted to the Director for granting a sentence
    reduction to exclude inmates whose current offense
    is a felony . . . that involved the carrying, possession,
    or use of a firearm or other dangerous weapon or
                          ARRINGTON v. DANIELS                          1509
     explosives (including any explosive material or
     explosive device) . . . .

Id. at 80747.

   In 2005 and 2006, eighteen prisoners filed petitions for
habeas corpus pursuant to 28 U.S.C. § 2241 challenging the
Bureau’s final rule.3 The petitioners are prisoners or former
prisoners who were convicted of offenses involving the carry-
ing, possession, or use of a firearm or other dangerous
weapon or explosives, and who were sentenced to terms of
imprisonment at the Federal Correctional Institution in Sheri-
dan, Oregon.4 They argue that although the Bureau has the
authority to implement a categorical exclusion of prisoners
   3
     Fifteen prisoners filed habeas petitions in August and September of
2005. On October 17, 2005, the district court consolidated these petitions
under the lead cases of Arrington v. Daniels and Williams v. Daniels. Two
additional prisoners, Antwane Burrise and Ismael Rodriguez, filed habeas
petitions on December 9, 2005 and March 8, 2006, which were stayed
pending decision in the lead cases. On July 26, 2006, the district court
issued an opinion and judgment denying relief in the lead cases of Arring-
ton v. Daniels and Williams v. Daniels. It entered similar orders and judg-
ments in the Burrise and Rodriguez cases. The remaining prisoner, Albert
Huh, filed his habeas petition on October 27, 2006; it was denied by the
district court on August 3, 2007. The petitioners filed notices of appeal
and this court consolidated the cases for purposes of appellate review.
   4
     Thirteen petitioners were convicted of unlawfully possessing firearms
in violation of 18 U.S.C. § 922(g), two were convicted of unlawful use of
a communications device to facilitate drug trafficking in violation of 21
U.S.C. § 843(b), and two were convicted of attempt and conspiracy to vio-
late drug laws in violation of 21 U.S.C. §§ 841, 846. The final petitioner,
Norman Aguilar, Jr., was convicted of bank robbery, a crime of violence,
in violation of 18 U.S.C. § 2113(a). Aguilar filed a motion to voluntarily
dismiss his habeas petition which was granted on January 23, 2006. We
therefore dismiss his appeal, which appears to have been erroneously con-
solidated with the other petitions.
   Of the seventeen remaining petitioners, ten had scheduled release dates
prior to the issuance of this opinion. For these individuals, relief may still
be available in the form of modification, amendment, or termination of
their supervised release. See Mujahid v. Daniels, 413 F.3d 991, 994-95
(9th Cir. 2005) (internal citation omitted) (holding habeas petition of pris-
oner placed on supervised release was not moot because of the “ ‘possibil-
ity’ that [petitioner] could receive a reduction in his term of supervised
release under 18 U.S.C. § 3583(e)(2)”); Gunderson v. Hood, 268 F.3d
1149, 1153 (9th Cir. 2001).
1510                 ARRINGTON v. DANIELS
who are otherwise statutorily eligible for early release, the
Bureau must provide a rationale for its decision to do so. The
Bureau’s failure to state a rationale for its categorical exclu-
sion rule, they assert, renders the regulation arbitrary and
capricious in violation of Section 706(2)(A) of the APA. The
district court, relying on the Supreme Court’s decision in
Lopez, 531 U.S. at 230, denied relief. Arrington v. Daniels,
465 F. Supp. 2d 1104, 1108 (D. Or. 2006) (concluding that
“the 2000 Final Rule promulgated by the BOP is not in viola-
tion of the APA”). Because we find that the administrative
record contains no rationale explaining the Bureau’s decision
to categorically exclude prisoners with convictions involving
firearms from eligibility for early release under § 3621(e), we
reverse.

        II.   Jurisdiction and Standard of Review

   The district court had jurisdiction pursuant to 28 U.S.C.
§ 2241. We have jurisdiction pursuant to 28 U.S.C. § 1291
and § 2253(a).

   We review de novo a district court’s denial of a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. Bowen, 202 F.3d
at 1218. In reviewing the Bureau’s conduct, we consider
whether the agency’s promulgation of the final rule is “arbi-
trary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A).

                       III.   Discussion

                               A.

   [1] Section 706(2)(A) of the APA provides that a “review-
ing court shall hold unlawful and set aside agency action,
findings, and conclusions found to be arbitrary, capricious, an
abuse of discretion or otherwise not in accordance with law.”
Under the arbitrary and capricious standard, our scope of
review is narrow and deferential. A reviewing court must con-
                     ARRINGTON v. DANIELS                   1511
sider whether “the decision was based on a consideration of
the relevant factors and whether there has been a clear error
of judgment . . . . The court is not empowered to substitute its
judgment for that of the agency.” Citizens to Preserve Over-
ton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), overruled
on other grounds by Califano v. Sanders, 430 U.S. 99, 105
(1977). Agency action is valid “if a reasonable basis exists for
[the agency’s] decision.” Kern County Farm Bureau v. Allen,
450 F.3d 1072, 1076 (9th Cir. 2006) (internal quotations and
citations omitted). A reasonable basis exists where the agency
“considered the relevant factors and articulated a rational con-
nection between the facts found and the choices made.”
Ranchers Cattlemen Action Legal Fund v. U.S. Dep’t of Agri-
culture, 415 F.3d 1078, 1093 (9th Cir. 2005) (internal citation
omitted). Although we may “ ‘uphold a decision of less than
ideal clarity if the agency’s path may reasonably be dis-
cerned,’ ” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto
Ins. Co., 463 U.S. 29, 44 (1983) (quoting Bowman Transp.,
Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286
(1974)), we may not “infer an agency’s reasoning from mere
silence.” Pacific Coast Fed’n of Fisherman’s Ass’ns v. U.S.
Bureau of Reclamation, 426 F.3d 1082, 1091 (9th Cir. 2005).

   [2] In conducting our review, we may look only to the
administrative record to determine whether the agency has
articulated a rational basis for its decision. See State Farm
Mut. Auto. Ins. Co., 463 U.S. at 50 (“It is well established that
an agency’s action must be upheld, if at all, on the basis artic-
ulated by the agency itself.”); SEC v. Chenery Corp., 318 U.S.
80, 87 (1943) (“The grounds upon which an administrative
order must be judged are those upon which the record dis-
closes that its action was based.”); SEC v. Chenery Corp., 332
U.S. 194, 196 (1947). Post hoc explanations of agency action
by appellate counsel cannot substitute for the agency’s own
articulation of the basis for its decision. Fed. Power Comm’n
v. Texaco, Inc., 417 U.S. 380, 397 (1974) (“[W]e cannot
‘accept appellate counsel’s post hoc rationalizations for
agency action’; for an agency’s order must be upheld, if at all,
1512                     ARRINGTON v. DANIELS
‘on the same basis articulated in the order by the agency
itself.’ ” (quoting Burlington Truck Lines, Inc. v. United
States, 371 U.S. 156, 168 (1962); Chenery Corp., 332 U.S. at
196). With these guidelines in mind, we turn to our review of
the agency action in the present case.

   The district court found two rational bases for the Bureau’s
decision to categorically exclude from eligibility for early
release those prisoners convicted of offenses involving the
possession, carrying, or use of firearms: (1) the increased risk
that offenders with convictions involving firearms might pose
to the public and (2) the need for uniformity in the application
of the eligibility regulation. Arrington, 465 F. Supp. 2d at
1108. Neither of these bases withstands even our narrow and
deferential standard of review under the APA.

   [3] The first rationale, that those convicted of offenses
involving firearms pose a greater threat to public safety, is
entirely absent from the administrative record. Rather, the
Bureau articulated this rationale in its brief to the Supreme
Court in Lopez. 531 U.S. at 236 (“The preconviction conduct
of both armed offenders and certain recidivists, in the
Bureau’s view, ‘suggest[s] that they pose a particular risk to
the public.’ ” (quoting Brief for Respondents 30)). This argu-
ment is precisely the type of “post hoc rationalization[ ]” of
appellate counsel that we are forbidden to consider in con-
ducting review under the APA. Burlington Truck Lines, Inc.,
371 U.S. at 168. We are limited to the explanations offered by
the agency in the administrative record. See State Farm Mut.
Auto. Ins. Co., 463 U.S. at 50. Because no public safety ratio-
nale is present in the administrative record, the district court
erred in relying on this explanation as a basis for its conclu-
sion that the final rule withstands arbitrary and capricious
review.5
  5
    The Bureau argues that its categorical exclusion rule is a “common-
sense decision” to exclude those prisoners who may pose a greater safety
risk from eligibility for early release and that it should therefore not be
                         ARRINGTON v. DANIELS                         1513
   [4] The second rationale identified by the district court, the
need for uniformity in the application of the eligibility regula-
tion, fares little better. Unlike the public safety rationale, this
explanation is articulated by the Bureau in the administrative
record, and therefore was properly considered by the district
court. The Bureau explained that the final rule was adopted
“[d]ue to varying interpretations of the regulation and caselaw
[which prevented] the Bureau [from] apply[ing] the regulation
in a uniform and consistent manner.” 65 Fed. Reg. at 80747.
We disagree with the district court, however, that this ratio-
nale justifies the Bureau’s action. A general desire for unifor-
mity provides no explanation for why the Bureau exercised its
discretion to achieve consistency through the promulgation of
a categorical exclusion rule. The Bureau’s stated desire for
uniformity could have been accomplished in any number of
ways. For example, the Bureau could have achieved unifor-
mity by categorically including prisoners with nonviolent
convictions involving firearms, thus making them eligible for
early release: a result that would have been entirely consistent
with the statute’s aim of offering incentives for prisoner par-
ticipation in residential substance abuse programs. Instead, it
chose to achieve uniformity by categorically excluding such
prisoners from eligibility. Although either choice in all likeli-
hood would have withstood judicial scrutiny, the Bureau
offered no explanation for why it exercised its discretion to

required to further support its decision with detailed analysis or empirical
support. Brief for Respondents 10-11 (citing Bowen, 202 F.3d at 1219).
The Bureau’s “common-sense” argument lacks legal significance in the
APA review context where, as here, the agency failed to articulate the
grounds for its purportedly common-sense decision anywhere in the
administrative record. Although our review is deferential, the Bureau is
not immune from its responsibility to “articulate[ ] a rational connection
between the facts found and the choices made.” Ranchers Cattlemen, 415
F.3d at 1093 (internal quotation marks and citation omitted). Given the
Bureau’s failure to articulate any rationale, its argument that the agency
should not be required to provide additional detailed analysis and empiri-
cal support for its purportedly “common-sense” decision is inapposite.
Brief for Respondents 10-11.
1514                      ARRINGTON v. DANIELS
select one rather than the other. The agency’s lack of explana-
tion for its choice renders its decision arbitrary and capricious.
See, e.g., Burlington Truck Lines, Inc., 371 U.S. at 167 (strik-
ing down action for failure to explain why agency chose one
of two available remedies where “[t]here are no findings and
no analysis here to justify the choice made, no indication of
the basis on which the [agency] exercised its expert discre-
tion”).

   [5] Although agencies enjoy wide discretion in fashioning
regulations governing the statutes that they are charged with
administering, section 706 of the APA requires that they artic-
ulate a rationale when they exercise that discretion. This is not
an empty requirement. Because we may not substitute our
own rationales for those of the agency, see Burlington Truck
Lines, Inc., 371 U.S. at 169, when an agency fails to provide
an explanation for its actions we are left with no means of
reviewing the reasonableness of that action. Here, the Bureau
failed to set forth a rationale for its decision to categorically
exclude prisoners convicted of offenses involving the carry-
ing, possession, or use of firearms from eligibility for a sen-
tence reduction under § 3621(e). This failure renders the
Bureau’s final rule invalid under the APA.6
   6
     Petitioners argue that the promulgation of agency rules that restrict
human freedom should be reviewed with “special vigor.” Brief for Peti-
tioners 24-25 (explaining that “human freedom implicates interests that
require scrupulous adherence to statutory and administrative rule-
making”). They argue that three circumstances of the present case merit
this heightened level of review: (1) the fact that Congress in the Sentenc-
ing Reform Act has declared that prison sentences be no longer than nec-
essary to satisfy the purposes of federal sentencing, see 18 U.S.C.
§ 3553(a), (2) the recognition that the agency is limiting eligibility criteria
for early release beyond those set forth by Congress in § 3621(e), and (3)
the assertion that the agency action represents a change of course that dis-
qualifies prisoners from early release where they previously were eligible
for release under the statute, see, e.g., State Farm Mut. Auto. Ins. Co., 463
U.S. at 42. Because even the most cursory review reveals that the Bureau
did not offer any contemporaneous explanation for its categorical exclu-
sion rule, we do not reach the petitioners’ arguments for heightened scru-
tiny.
                      ARRINGTON v. DANIELS                    1515
                                B.

   [6] Our holding today is in no way foreclosed by the
Supreme Court’s decision in Lopez v. Davis, 531 U.S. at 230,
or by our decision in Bowen v. Hood, 202 F.3d at 1211. Both
cases addressed a distinct question: whether the Bureau had
the authority to pass a rule categorically excluding otherwise
eligible prisoners from a grant of early release under
§ 3621(e). Neither case addressed the question presented
before us: whether the agency complied with the requirements
of APA § 706 in promulgating the rule.

   In Bowen, we considered the validity of the Bureau’s inter-
pretation of § 3621(e) as conferring upon the agency the
authority to narrow the class of prisoners eligible for early
release. Bowen, 202 F.3d at 1218. We concluded that the
Bureau validly interpreted the statute as affording the agency
“discretion [ ] to [ ] creat[e] [ ] categorical exclusions.” Id. at
1219. The Bowen court did not consider the distinct question
of whether the Bureau complied with the APA’s procedural
requirements in exercising that discretion. The Bureau’s argu-
ment to the contrary relies on a passage in Bowen noting that
we saw “nothing unreasonable in the Bureau’s making the
common-sense decision that there is a significant potential for
violence from criminals who carry, possess or use firearms
while engaged in their felonious employment, even if they
have wound up committing a nonviolent offense.” Id. This
argument, however, fails to take into account the question
presented before the Bowen court: whether the Bureau had the
authority to exercise its discretion under the statute by pro-
mulgating a categorical exclusion rule and not whether the
Bureau’s exercise of that authority comported with the APA.
A rule may ultimately be reasonable in substance (as the
Bowen court concluded that the 1997 interim rule was) but
nevertheless fail APA review if the agency does not comply
with its procedural responsibility to articulate in the adminis-
trative record the rational basis upon which it relied in pro-
mulgating the rule. Indeed, the Bowen court’s reference to
1516                 ARRINGTON v. DANIELS
“common-sense,” rather than to the administrative record, in
drawing its conclusion that the categorical exclusion rule was
a reasonable exercise of the agency’s discretion evidences the
fact that it was not engaged in § 706 review. See, e.g., SEC
v. Chenery Corp., 332 U.S. at 196 (requiring that a reviewing
court judge the “propriety of [agency] action solely by the
grounds invoked by the agency”) (emphasis added).

   Similarly, in Lopez, the Supreme Court considered
“whether the Bureau has discretion to delineate, as an addi-
tional category of ineligible inmates, those whose current
offense is a felony involving a firearm.” 531 U.S. at 238
(emphasis added). As in Bowen, the inquiry in Lopez was lim-
ited to whether the Bureau had discretion to narrow the class
of prisoners eligible for early release under § 3621(e). In
deciding this question in the affirmative, the Court did not
consider an APA challenge to the validity of the Bureau’s
1997 interim rule. Indeed, the Court expressly declined the
invitation of amici to consider whether the Bureau violated
the APA’s notice and comment requirements when it pub-
lished the regulation because the “matter [ ] was not raised or
decided below, or presented in the petition for certiorari.”
Lopez, 531 U.S. at 245 n.6. Although the Lopez Court
expressed agreement with the Bureau’s position that “denial
of early release to all inmates who possessed a firearm in con-
nection with their current offense rationally reflects the view
that such inmates displayed a readiness to endanger another’s
life[,]” id. at 240, this rationale, as discussed supra, was sup-
ported by citation not to the administrative record, but to the
Bureau’s brief. Id. at 236. The Lopez Court’s reliance on the
arguments of appellate counsel, rather than on the administra-
tive record, evidences the fact that the Lopez Court, like the
Bowen Court, was not engaged in § 706 review. See, e.g.,
Burlington Truck Lines, Inc., 371 U.S. at 168 (rejecting reli-
ance on appellate counsel’s “post hoc rationalizations” as the
basis for agency action).

  The question presented in Bowen and Lopez—whether the
Bureau had the authority to pass a rule narrowing the class of
                      ARRINGTON v. DANIELS                    1517
prisoners eligible for early release under § 3621(e)—is dis-
tinct from the question whether the rule that the Bureau
passed comports with the requirements of the APA. This dis-
tinction is starkly illustrated by our decision in Paulsen strik-
ing down on procedural grounds the very 1997 interim rule
that Bowen and Lopez determined represented a legitimate
exercise of agency discretion. See Paulsen, 413 F.3d at 1004
(holding that the interim rule “plainly violated the APA”
notice and comment requirements). See also Gunderson, 268
F.3d at 1152 (noting that although after Bowen and Lopez “it
is quite clear that the 1997 regulation and program statement
are substantively sound . . . . [i]t is not clear . . . that [they]
are immune from attack on procedural grounds”). Just as a
rule can be invalidated for violating notice and comment
requirements even if a court has determined that it represents
an otherwise legitimate exercise of agency discretion, so too
can a rule that survives a challenge to agency authority fail
arbitrary and capricious review where the agency neglects to
articulate a rational basis for the manner in which it exercises
its discretion. Although the Bowen and Lopez decisions recog-
nize that there are rational explanations for the 1997 interim
rule, which is identical to the Bureau’s final rule in this case,
they do not address whether the agency itself articulated those
rationales in promulgating the final rule as required by § 706.
We now consider that question and hold that the Bureau’s
promulgation of the final rule was arbitrary and capricious
because it failed to articulate a rationale for its categorical
exclusion of a class of nonviolent offenders from eligibility
for early release.

                       IV.    Conclusion

   [7] For twelve years, the Bureau has sought to exclude
those convicted of offenses involving the carrying, posses-
sion, or use of a firearm or other dangerous weapon or explo-
sives from eligibility for early release under § 3621(e). In that
time, the Bureau has failed to adopt a valid regulation to sup-
port its exclusion policy. Its first attempt was struck down
1518                     ARRINGTON v. DANIELS
because the Bureau adopted an impermissible definition of
“crime of violence.” See Davis, 109 F.3d at 568-70; Downey,
100 F.3d at 666-70. Its second attempt was struck down on
notice and comment grounds. See Paulsen, 413 F.3d at 1004.
The final rule, like its predecessors, also falls short of meeting
the governing legal standards. The Bureau has failed to set
forth a valid rationale for its categorical exclusion rule. Sec-
tion 706 of the Administrative Procedure Act requires that it
do so. We therefore reverse the judgments of the district court
in the consolidated cases and direct it to grant the habeas cor-
pus petitions.7 See Paulsen, 413 F.3d at 1008.

   REVERSED and REMANDED.




  7
    The Bureau argues that Petitioner Arrington is ineligible for a sentence
reduction under § 3621(e) on the ground that he has a prior robbery con-
viction. See 28 C.F.R. § 550.58(a)(iv) (rendering ineligible for early
release “[i]nmates who have a prior felony or misdemeanor conviction for
. . . robbery”). The district court did not reach this alternative ground of
ineligibility. Therefore, in Arrington’s case the district court shall first
determine whether he is ineligible for relief because of a prior conviction.
