                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 08-2197
                                     ___________

Kennard Gatewood,                         *
                                          *
      Petitioner - Appellant,             *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Eastern District of Arkansas.
T. C. Outlaw, Warden,                     *
                                          *
      Respondent - Appellee.              *
                                     ___________

                                Submitted: December 10, 2008
                                   Filed: March 26, 2009 (Corrected April 8, 2009)
                                    ___________

Before LOKEN, Chief Judge, BEAM and ARNOLD, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       Kennard Gatewood was convicted of being a felon in possession of a firearm,
violating 18 U.S.C. § 922(g). While serving his sentence, he successfully completed
a 500-hour Bureau of Prisons (“BOP”) residential drug abuse program and sought the
discretionary sentence reduction BOP may grant under 18 U.S.C. § 3621(e)(2)(B).
BOP did not reduce his sentence, instead applying its regulation declaring an inmate
convicted of a felony firearm possession offense ineligible for that relief, 28 C.F.R.
§ 550.58(a)(1)(vi)(B), a regulation the Supreme Court held to be a reasonable exercise
of the agency’s statutory discretion in Lopez v. Davis, 531 U.S. 230 (2001). Relying
on the decision of a Ninth Circuit panel in Arrington v. Daniels, 516 F.3d 1106 (9th
Cir. 2008), Gatewood filed this petition for a writ of habeas corpus, seeking early
release and arguing that the regulation is invalid because the BOP failed to articulate
an adequate rationale in the administrative record. The district court1 denied habeas
relief, concluding that we would not follow the decision in Arrington. The district
court was correct. Accordingly, we affirm.

                                          I.

       This issue has a long administrative and judicial history that we will summarize
as briefly as possible to adequately explain our decision. Congress amended the
statute in 1994 to encourage federal inmates to participate in drug abuse programs.
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322
§ 32001, 108 Stat. 1796, 1897. 18 U.S.C. § 3621(e)(2) provides in relevant part:

         (B) Period of custody. -- 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, but such
      reduction may not be more than one year from the term the prisoner must
      otherwise serve.

(Emphasis added). In 1995, BOP published an interim rule implementing this statute.
As relevant here, the rule provided that an inmate who completes a drug abuse
program “may be eligible for early release . . . unless the inmate’s 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); see 60 Fed. Reg. 27695 (May 25, 1995). Two months
later, BOP issued Program Statement No. 5162.02 (July 24, 1995), detailing how it
would apply this “crime of violence” standard to scores of federal criminal offenses.


      1
       The HONORABLE WILLIAM R. WILSON, JR., United States District Judge for the
Eastern District of Arkansas, adopting the Report and Recommendation of the
HONORABLE BETH DEERE, United States Magistrate Judge for the Eastern District of
Arkansas.

                                         -2-
As amended in April 1996, sections 7-11 of the Program Statement created multiple
offense categories -- those “that are crimes of violence in all cases,” those “that may
be crimes of violence depending on” the base offense level or specific offense
characteristic determined at sentencing, and those “that may be crimes of violence
depending on a variety of factors.”

       Inmates upset with these restrictions sued, seeking court-ordered early releases.
Though the Program Statement clarified that BOP was exercising its discretion based
on a broad range of factors, a majority of circuits concluded that a rule based on
“crimes of violence” was invalid as applied to two numerically-significant types of
offenses -- felon-in-possession convictions under § 922(g) because, some circuits
concluded, characterizing this offense as a crime of violence conflicted with prior
judicial decisions, see, e.g., Davis v. Crabtree, 109 F.3d 566, 569 (9th Cir. 1997); and
convictions for drug trafficking under 21 U.S.C. § 841 where the sentence was
enhanced for possessing a dangerous weapon during the offense because, this court
and others concluded, BOP could “look only to the offense of conviction . . . and not
to sentencing factors . . . in determining whether an offender was convicted of a
nonviolent offense.” Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir. 1998).

       Responding to these conflicting court decisions, BOP issued an amended
interim rule that “avoids this complication by using the discretion allotted to the
Director . . . in granting a sentence reduction.” 62 Fed. Reg. 53690 (Oct. 15, 1997).
The new rule, 28 C.F.R. § 550.58(a)(1), provided in relevant part: “As an exercise of
the discretion vested in the Director . . . the following categories of inmates are not
eligible for early release: . . . (vi) Inmates whose current offense is a felony:

             (A) That has as an element, the actual, attempted, or threatened
      use of physical force against the person or property of another, or

             (B) That involved the carrying, possession, or use of a firearm or
      other dangerous weapon . . . or

                                          -3-
            (C) That by its nature or conduct, presents a serious potential risk
      of physical force against the person or property of another, or

          (D) That by its nature or conduct involves sexual abuse offenses
      committed upon children.”

At the same time, BOP published Program Statement 5162.04 (Oct. 9, 1997), which
rearranged the scores of offenses declared always or sometimes ineligible in the prior
Program Statement into “Offenses Categorized as Crimes of Violence” in § 6, and
“Offenses That at the Director’s Discretion Shall Preclude an Inmate’s Receiving
Certain Bureau Program Benefits” in § 7. Felon-in-possession offenses under 18
U.S.C. § 922(g) and drug trafficking offenses with a sentence enhancement for use of
a firearm were included in different subparts of § 7.

       Numerous firearm offenders quickly challenged the amended rule, producing
another conflict in the circuits. The Supreme Court granted certiorari and resolved
this conflict in Lopez. Affirming this Court’s decision in Bellis v. Davis, 186 F.3d
1092 (8th Cir. 1999), the Court concluded:

             Having decided that the [BOP] may categorically exclude
      prisoners based on their preconviction conduct, we further hold that the
      regulation excluding Lopez is permissible. [BOP] reasonably concluded
      that an inmate’s prior involvement with firearms, in connection with the
      commission of a felony, suggests his readiness to resort to
      life-endangering violence and therefore appropriately determines the
      early release decision.

531 U.S. at 244. However, the Court declined to consider whether BOP in publishing
the 1997 amended interim rule complied with the notice and comment requirements
of the Administrative Procedure Act (“APA”). Id. at n.6.




                                         -4-
       In the wake of Lopez, the Ninth Circuit concluded that the 1997 interim rule
failed to comply with the notice and comment requirements of 5 U.S.C. § 553(b) and
(d) and was therefore invalid. Paulsen v. Daniels, 413 F.3d 999 (9th Cir. 2005). But
by then, BOP had promulgated the amended interim rule as a final rule, after notice
and comment, which cured that procedural defect. See 65 Fed. Reg. 80745 (Dec. 22,
2000), codified at 28 C.F.R. § 550.58(a); Johnson v. Holinka, 2007 WL 1446476, at
*3 (D. Minn. May 14, 2007). That set the stage for the decision in Arrington, where
the Ninth Circuit panel held the final rule “invalid” under 5 U.S.C. § 706(2)(A)
because the BOP “failed to set forth a rationale for its decision to categorically
exclude prisoners convicted of [firearm possession] offenses.” 516 F.3d at 1114. The
panel rejected both rationales BOP put forth in defending the regulation -- a public
safety rationale because it was a post hoc rationalization of appellate counsel “entirely
absent from the administrative record,” Id. at 1113; and a uniformity rationale
because, though articulated in the administrative record, “it provides no explanation
for why [BOP] exercised its discretion” by categorical exclusion rather than
categorical eligibility. Id. at 1113-14. We find this reasoning unpersuasive and,
though purporting to be based on an open procedural issue, contrary to the Supreme
Court’s decision in Lopez.

                                           II.

         The APA provides that a reviewing court must set aside a final agency action
if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A).2 Because this is a deferential standard, “the orderly


      2
        18 U.S.C. § 3625 provides that 5 U.S.C. §§ 554, 555, and 701-706 “do not
apply” to early-release decisions. We held in Martin that § 3625 does not preclude
judicial review of BOP rulemaking under 5 U.S.C. § 553. 133 F.3d at 1079. The
Supreme Court in Lopez agreed. 531 U.S. at 240. But § 3625 may well preclude
judicial review of BOP decisions applying the final rule and Program Statement to
particular inmates. See Sesler v. Pitzer, 110 F.3d 569, 572 n.5 (8th Cir. 1997).

                                          -5-
functioning of the process of review requires that the grounds upon which the
administrative agency acted be clearly disclosed and adequately sustained.” SEC v.
Chenery Corp., 318 U.S. 80, 94 (1943). “The courts may not accept appellate
counsel’s post hoc rationalizations for agency action.” Burlington Truck Lines, Inc.
v. United States, 371 U.S. 156, 168 (1962). However, courts “will uphold a decision
of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman
Transp., Inc., v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974).

       These general principles, like 5 U.S.C. § 706(2)(A) itself, apply to both agency
rulemaking and adjudication that is subject to the APA. But most Supreme Court
cases applying these principles -- such as Chenery, Burlington Truck Lines, and
Bowman -- involved agency adjudications conducted under 5 U.S.C. §§ 556-57 (or
their APA predecessor), which require that agency decisions be based on the
administrative record, and define what that record must include. This case involves
agency rulemaking under 5 U.S.C. § 553, which provides only that the agency shall
publish notice of the proposed rulemaking, afford interested persons an opportunity
to participate, and “incorporate in the rules adopted a concise general statement of
their basis and purpose,” § 553(c). The Supreme Court has repeatedly emphasized
“that generally speaking this section of the Act established the maximum procedural
requirements which Congress was willing to have the courts impose upon agencies in
conducting rulemaking procedures.” Vt. Yankee Nuclear Power Corp. v. Natural Res.
Def. Council, Inc., 435 U.S. 519, 524 (1978), and cases cited. Under § 553, an agency
determination need not be made “on the record” unless the statute being applied so
requires. United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 756-57
(1972). Thus, the Ninth Circuit panel in Arrington erred when it disregarded the
BOP’s public safety rationale simply because the court could not find that rationale
in an “administrative record” which the court never defined but seemed to limit to the
BOP’s Federal Register notice in 2000 finalizing the previously interim rule.




                                         -6-
       Though rulemaking decisions, which are prospective and legislative in nature,
need not be made on a confined administrative record, they still must be reviewed
under § 706(2)(A) and “upheld, if at all, on the basis articulated by the agency itself.”
Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
50 (1983); see Menorah Med. Ctr. v. Heckler, 768 F.2d 292, 295 (8th Cir. 1985).3 In
State Farm, the Court refused to enforce an agency order rescinding a prior rule,
explaining that “an agency changing its course by rescinding a rule is obligated to
supply a reasoned analysis for the change beyond that which may be required when
an agency does not act in the first instance.” 463 U.S. at 42.4 We have construed
State Farm as requiring a fuller explanation when “a new rule reflects a departure from
the agency’s prior policies.” Macon County Samaritan Mem’l Hosp. v. Shalala, 7
F.3d 762, 765-66 (8th Cir. 1993). Here, the BOP has consistently sought to
implement the same substantive policy in the face of continued judicial resistance. In
these circumstances, it is appropriate to discern the reasons for the agency’s final rule
from the various prior interim rules, Program Statements, and litigation positions
reflecting that consistent policy. The Supreme Court discerned that public safety was
the basis for the BOP’s exclusion of firearm offenders and concluded that the agency’s
rule was substantively reasonable in Lopez, 531 U.S. at 244. That, we conclude, is all
5 U.S.C. §§ 553(c) and 706(2)(A) require. Accord Harrison v. Lamanna, 19 F. App'x
342 (6th Cir. 2001) (unpublished).

     Moreover, we have no difficulty concluding, as the Court obviously did in
Lopez, that public safety was the contemporaneous rationale for the interim and final

      3
        The Court applied a related principle in Investment Co. Institute v. Camp, 401
U.S. 617, 627-28 (1971), giving no deference to an agency rule that was not
adequately justified and then concluding that the rule conflicted with the governing
statute. Of course, there is a significant difference between giving a rule little
deference because it is poorly explained and invalidating the rule for that reason.
      4
      The underlying statute in State Farm did require a record of the rulemaking
proceedings to be made and submitted to a reviewing court. 463 U.S. at 43-44.

                                          -7-
rules, and not merely a post hoc rationalization by appellate counsel. The categories
of offenses in the April 1996 amended Program Statement made it clear that BOP
decided to exclude, not only those convicted of violent offenses, but also those whose
offenses, either by inherent nature or by the manner in which they were committed,
demonstrated a potential for violent behavior that made the inmate unsuitable for early
release on public safety grounds.

      When some courts ruled that certain of these categories could not be declared
“crimes of violence,” BOP recognized that it would need to justify at least some of its
categorical exclusions on broader discretionary grounds. That was accomplished in
the 1997 amended interim rule, adopted in 2000 as the final rule. But the categories
of exclusion remained constant, and the rationale continued to be BOP’s interest in
protecting public safety. For example, in discussing the category, “Criminal Offenses
with a Specific Offense Characteristic Enhancement,” the 1997 Program Statement
explained that “an inmate who was convicted of manufacturing drugs . . . and received
a two-level enhancement for possession of a firearm” is ineligible for the early release
benefit because possession of a dangerous weapon during a drug offense “poses a
serious potential risk that force may be used against persons or property.” PS
5162.04, § 7(b), at p.11-12; accord PS No. 5162.02, at 7 (BOP Apr. 23, 1996).

        When the agency has articulated and acted on a consistent rationale throughout
the course of a lengthy informal rulemaking process, the final rule is not arbitrary and
capricious because the rationale was not fully reiterated in the final agency action. In
Lopez, the Supreme Court upheld the substantive reasonableness of both the rule and
its rationale. See 531 U.S. at 244. The Court did not thereby “supply a reasoned basis
for the agency’s action that the agency itself has not given.” State Farm, 463 U.S. at
43. Indeed, courts had previously recognized that BOP adopted the public safety
rationale before the 1997 interim regulation was promulgated, see Venegas v.
Henman, 126 F.3d 760, 765 (5th Cir. 1997), cert. denied, 523 U.S. 1108 (1998), and
reiterated this rationale before the rule was made final in 2000, see Bellis, 186 F.3d

                                          -8-
at 1095. Particularly given the agency’s primary public safety mission, there is simply
no reason to suspect that public safety was not the actual basis for its interim and final
rules. See Auer v. Robbins, 519 U.S. 452, 462 (1997).

       Though it may be of only derivative importance, we also conclude that the
BOP’s uniformity rationale justified the amended interim and final rules, just as
uniformity was a legitimate rationale in Macon County, 7 F.3d at 766. By 1997, some
courts had rejected the BOP’s public-safety-driven categories of offenders to be
excluded if the offenses they committed were not “crimes of violence.” When the
agency concluded that public safety nonetheless justified exercising its substantial
statutory discretion to exclude these offenders, it could only continue to uniformly
apply its substantive policy if it published an amended rule adopting a broader
discretionary basis for its categorical exclusions. Uniformity in this context was not
a neutral either/or proposition. The agency had strong interests -- both substantive and
administrative -- in applying its substantive policy decisions uniformly to its
nationwide inmate population.

      For these reasons, the judgment of the district court is affirmed.
                      ______________________________




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