                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             MAY 1 2000
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk


ALBERT JOHN CLARK, III,

          Petitioner-Appellee,
                                                        No. 00-6003
v.                                               (W. District of Oklahoma)
                                                  (D.C. No. 99-CV-609-T)
L. E. FLEMING,

          Respondent-Appellant.




                             ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Appellant-respondent L.E. Fleming, warden of the Federal Correctional

Institution at El Reno, Oklahoma, appeals a decision of the district court


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
conditionally granting Albert Clark’s 28 U.S.C. § 2241 petition. In particular, the

district court directed the Bureau of Prisons (“BOP”) to reconsider Clark’s

eligibility for release based on his completion of a drug treatment program. In so

doing, the district court held that a BOP regulation categorically denying early

release under 18 U.S.C. § 3621(e)(2)(B) when the inmate’s sentence included a

firearm enhancement was inconsistent with the plain language of § 3621(e)(2)(B).

      On appeal, Fleming asserts that the district court erred in concluding that

the BOP regulation in question is inconsistent with § 361(e)(2)(B). This court

recently rejected the exact arguments advanced by Fleming on appeal. See Ward

v. Booker, 202 F.3d 1249 (10th Cir. 2000). In his brief, Fleming recognizes this

court’s decision in Booker “is directly on point with this case,” and asks this

panel to “hold this case pending the resolution of [an] en banc suggestion and the

issuance of the mandate” in Booker. This court entered an order denying the

petition for rehearing in Booker on April 4, 2000, and the mandate issued in that

case on April 12, 2000. Booker is binding on this panel and, as appropriately

noted by Fleming, directly controls the disposition of this appeal.




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     The order of the district court conditionally granting Clark’s § 2241

petition is hereby AFFIRMED.

                                     ENTERED FOR THE COURT:



                                     Michael R. Murphy
                                     Circuit Judge




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