                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                         April 19, 2007

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                               No. 06-10928
                             Summary Calendar


                                 DAVID CASTILLO

                                                      Petitioner-Appellant,

                                     versus

     DAVID G. JUSTICE, Warden, Big Springs Federal Prison Camp

                                                       Respondent-Appellee.

                          --------------------
              Appeal from the United States District Court
                   for the Northern District of Texas
                          USDC No. 5:06-CV-138
                          --------------------

Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

      David    Castillo,   federal    inmate   #   24869-077,    appeals      the

dismissal of his 28 U.S.C. § 2241 habeas corpus petition in which

he challenged the respondent’s refusal to readmit him into the

Bureau of Prisons (BOP) drug abuse program (DAP) that could result

in   a    reduction   of   his     sentence.       Prisoners    convicted      of

“nonviolent” offenses who complete a 500-hour DAP may apply for

sentence reductions of up to one year at the discretion of the BOP

director.     18 U.S.C. § 3621(e); Warren v. Miles, 230 F.3d 688, 690

(5th Cir. 2000). The BOP enjoys “broad discretion to deny sentence

      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
reductions” even to inmates who successfully complete the DAP.

Rublee   v.    Fleming,   160    F.3d   213,     216   (5th   Cir.     1998);

§ 3621(e)(2)(B).     Castillo was nonetheless entitled to judicial

review of whether the BOP’s regulations or application thereof were

arbitrary and capricious or otherwise an abuse of discretion.             See

id. at 215-16; see also Lopez v. Davis, 531 U.S. 230, 240 (2001);

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

     The district court correctly noted that certain BOP criteria

for denying DAP eligibility and early release are not arbitrary and

capricious.     However, the district court made an error of law by

stating that early release is not available to “inmates whose

current offense is a felony.”       Ineligible felons are those whose

felonies involved physical force, firearms or other dangerous

weapons, sexual abuse of children, or other factors set forth in

28 C.F.R. § 550.58(a)(vi).

     Moreover, the scant record before the district court provided

no basis for the court to conclude that Castillo was ineligible for

the DAP.      Castillo’s complaint did not specifically allege the

reasons for the BOP’s denial, nor did he submit copies of the BOP’s

decisions.    The respondent did not answer the petition or offer any

summary judgment     evidence.     There   was   no    evidence   of   record

indicating the BOP’s grounds for excluding Castillo.

     The district court’s holding that there was “no support” for

Castillo’s allegation that he was eligible for readmission required

too much from Castillo’s petition.      The petition satisfied federal

                                    2
pleading rules.   See 28 U.S.C. § 2242; FED. R. CIV. P. 8(a)(2).

Castillo was not given the opportunity to amend his complaint in

accord with Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir.

1986).

     The judgment of the district court is vacated, and the case

remanded for further proceedings consistent with this opinion.

     VACATED AND REMANDED.




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