                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1




                United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                               Submitted October 27, 2014
                               Decided December 3, 2014

                                          Before

                            DIANE P. WOOD, Chief Judge

                            WILLIAM J. BAUER, Circuit Judge

                            MICHAEL S. KANNE, Circuit Judge

No. 14-2956

GEORGE A. DELUCA,                                Appeal from the United States District
    Plaintiff-Appellant,                         Court for the Southern District of
                                                 Indiana, Terre Haute Division.
       v.
                                                 No. 2:14-cv-00211-JMS-WGH
LEANN LARIVA,
    Defendant-Appellee.                          Jane Magnus-Stinson,
                                                 Judge.

                                        ORDER

       In 1996 George DeLuca was convicted by a jury in federal district court in St.
Louis, Missouri, of conspiracy to possess with intent to distribute cocaine and heroin,
money laundering, and traveling interstate in aid of racketeering. Now 73 years old,
DeLuca is currently serving his life sentence at the Federal Correctional Institution in
Terre Haute, Indiana.

       In 2013 DeLuca sought compassionate release under 18 U.S.C. § 3582(c)(1)(A), 28
C.F.R. § 571.61, and Bureau of Prisons Program Statement 5050.49. Section 3582, as
relevant here, allows a sentencing court, on the motion of the Bureau of Prisons, to
No. 14-2956                                                                          Page 2

modify a sentence for “extraordinary and compelling reasons.” The BOP concludes in
its Program Statement that advanced age can be an extraordinary or compelling reason
to reduce a sentence. But DeLuca’s request was denied because the warden concluded
that his crimes involved violence and so he remained a danger to the community.

      DeLuca challenged that decision within the BOP and when those appeals were
unsuccessful brought suit in the Southern District of Indiana. His suit claimed that the
BOP’s decision not to move for compassionate release was unsupported by the record,
and sought to have the court order the BOP to make the motion, or at least conduct a
hearing on his request.

        DeLuca’s filing asserted both 28 U.S.C. § 2241 and the Administrative Procedure
Act (APA), 5 U.S.C. §§ 701–06, as bases for relief. The district court, mindful of our
frequent admonitions that a prisoner’s choice of statute should be honored, e.g., Collins
v. Holinka, 510 F.3d 666, 667 (7th Cir. 2007), adjudicated DeLuca’s filing as a petition for
a writ of habeas corpus only. Noting that DeLuca did not assert any constitutional basis
for release, and that in any case DeLuca’s requested relief could be granted only by the
Eastern District of Missouri, his sentencing court, the court denied DeLuca a writ of
habeas corpus.

       We think the better treatment of DeLuca’s filing is as a claim for relief under the
APA. He asserted, for instance, that the BOP’s decision was “arbitrary and capricious,”
and we concluded in Richmond v. Scibana, 387 F.3d 602, 605–06 (7th Cir. 2004), that the
APA was the appropriate vehicle to contest a decision about the “opportunity to be
considered for release.” That is what DeLuca does. His initial filing explicitly
acknowledges that his sentencing court would not be bound to reduce his sentence, and
asks only for the opportunity to be considered for compassionate release. And because
DeLuca included a citation to the APA in his caption, our construction of his filing does
no violence to the principle that a prisoner’s invocation of a particular statute ought to
be honored by the courts.

       We need not remand to the district court for further consideration of DeLuca’s
claim, however, as we may affirm on any ground presented by the record. See Thayer v.
Chiczewski, 705 F.3d 237, 247 (7th Cir. 2012). The record plainly shows that DeLuca is not
entitled to any relief under the APA because the BOP’s decision not to move the Eastern
District of Missouri to reduce DeLuca’s sentence is a judicially unreviewable decision.
See Turner v. U.S. Parole Comm’n, 810 F.2d 612, 618 (7th Cir. 1987) (affirming dismissal of
challenge to similar BOP decision under relevant pre-1984 statute). This is so because
No. 14-2956                                                                             Page 3

there are no standards cabining the BOP’s exercise of its statutorily-conferred
discretion. See Heckler v. Chaney, 470 U.S. 821, 830 (1985) (“[E]ven where Congress has
not affirmatively precluded review, review is not to be had if the statute is drawn so
that a court would have no meaningful standard against which to judge the agency's
exercise of discretion.”). Section 3582 simply provides, without elaboration, that it is
within the power of the Director of the Bureau of Prisons to move for a reduction in
sentence on behalf of a prisoner. 18 U.S.C. § 3582(c)(1)(A). And while the BOP’s
interpretive Program Statement lists some factors the Bureau may consider in
determining whether to move for compassionate release, that list is non-exhaustive and
the Program Statement is bereft of any guidance regarding how to weigh the listed
factors. See also Crowe v. United States, 430 F. App’x 484, 485 (6th Cir. 2011) (collecting
cases applying rule of Heckler to claims regarding BOP’s discretionary refusal to move
for compassionate release).

        We note in closing that our disposition of this appeal does not affect our
jurisdiction. Some case law from the years following Heckler suggests that suits under
the APA challenging unreviewable agency decisions fail to engage the federal courts’
subject-matter jurisdiction. See, e.g., I.C.C. v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 282,
287 (1987); Arnow v. Nuclear Regulatory Comm’n, 868 F.2d 223, 236 (7th Cir. 1989). But the
Supreme Court consistently has reminded us jurisdictional rules are those involving “a
court’s power to hear a case,” not simply rules which may foreclose a plaintiff from
obtaining any relief. Arbaugh v. Y&H Corp., 546 U.S. 500, 514–16 (2006). The problem
with challenges to unreviewable agency decisions, therefore, is not that federal courts
lack the power to hear them, but that any such suit necessarily fails to state a claim for
relief. See Vahora v. Holder, 626 F.3d 907, 917 (7th Cir. 2010); Sierra Club v. Jackson, 648
F.3d 848, 857 (D.C. Cir. 2011). For that reason, the judgment of the district court is

                                                                                    AFFIRMED.
