                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JERRY CRICKON,                                   No. 08-35250
             Petitioner-Appellant,
               v.                                  D.C. No.
                                                07-CV-01180-HA
J.E. THOMAS,
                                                   OPINION
             Respondent-Appellee.
                                           
         Appeal from the United States District Court
                  for the District of Oregon
         Ancer L. Haggerty, District Judge, Presiding

                    Argued and Submitted
              February 2, 2009—Portland, Oregon

                      Filed August 25, 2009

     Before: Richard A. Paez and Johnnie B. Rawlinson,
    Circuit Judges, and Bruce S. Jenkins,* District Judge.

                  Opinion by Judge Rawlinson




   *The Honorable Bruce S. Jenkins, Senior United States District Judge
for the District of Utah, sitting by designation.

                                11727
11730                 CRICKON v. THOMAS
                          COUNSEL

Stephan R. Sady, Chief Deputy Federal Public Defender,
Portland, Oregon, on behalf of petitioner-appellant Jerry
Crickon.

Suzanne A. Bratis, Assistant United States Attorney, Portland,
Oregon, on behalf of respondent-appellee J.E. Thomas.


                          OPINION

RAWLINSON, Circuit Judge:

   Appellant Jerry Crickon (Crickon) challenges regulations
promulgated by the Bureau of Prisons (BOP) that categori-
cally exclude prisoners with certain prior convictions from
early release eligibility. Because we conclude that the BOP
failed to provide a rational explanation for the exclusion in the
administrative record, we reverse the district court’s decision
denying Crickon’s habeas petition.

I.        BACKGROUND

     A.    Regulatory Background

   Title 18 U.S.C. § 3621 governs the terms of imprisonment
for a person convicted of a federal crime. See 18 U.S.C.
§ 3621. In 1990, Congress enacted the Crime Control Act of
1990, which amended 18 U.S.C. § 3621 to require the BOP
to “make available appropriate substance abuse treatment for
each prisoner the Bureau determines has a treatable condition
of substance addiction or abuse.” Pub. L. 101-647, § 2903,
104 Stat. 4789, 4913 (1990) (codified at 18 U.S.C. § 3621(b)).

   In 1994, hoping to “draw into treatment” inmates otherwise
reluctant to go through the “difficult and painful treatment
                           CRICKON v. THOMAS                         11731
program,” H. R. Rep. No. 103-320, p.5 (Nov. 3, 1993), Con-
gress amended 18 U.S.C. § 3621 to include incentives for par-
ticipation. See Violent Crime Control and Law Enforcement
Act of 1994, 103 Pub. L. No. 322, § 32001, 108 Stat. 1796,
1896-97. The revised statute thus provides that the BOP may
reduce the sentence by up to one year for an inmate who suc-
cessfully completes the program. 18 U.S.C. § 3621(e)(2)(B).1

   In 1995, the BOP promulgated its initial interim rule imple-
menting the early release provision of § 3621(e)(2)(B). See 60
Fed. Reg. 27692-27695 (May 25, 1995), codified at 28 C.F.R.
§ 550.58 (1995). The rule reflected the BOP’s decision to
exercise its discretion to reduce an inmate’s sentence by
excluding several categories of inmates not referenced in the
statute from eligibility for early release, including any inmate
with a prior “federal and/or state conviction for homicide,
forcible rape, robbery, or aggravated assault” irrespective of
when such conviction was incurred. 28 C.F.R. § 550.58
(1995).

   The BOP subsequently promulgated a second interim rule,
leaving unchanged the prior conviction exclusion. See 61 Fed.
Reg. 25121-01 (May 17, 1996); codified at 28 C.F.R.
§ 550.58 (1996). Contemporaneously, the BOP issued a
Change Notice referencing Program Statement 5330.10,
which explained the prior conviction exclusion, emphasizing
that any prior conviction received at any time for one of the
four specified crimes would result in categorical exclusion
from early release eligibility.2 See Change Notice 01 to
  1
     The incentive provision at issue reads in its entirety: “The period a
prisoner convicted of a nonviolent offense remains in custody after suc-
cessfully 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.” 18 U.S.C. § 3621(e)(2)(B).
   2
     Program Statement Number 5330.10 was originally issued in conjunc-
tion with the first interim rule released in 1995. See Bureau of Prisons Pro-
gram Statement Number 5330.10 (June 26, 1995), Petr’s Br. app. B.
11732                       CRICKON v. THOMAS
Bureau of Prisons Program Statement Number 5330.10 (May
17, 1996), Petr’s Br. app. D.

   In 1997, the BOP promulgated a third interim rule. See 62
Fed. Reg. 53690 (Oct. 15, 1997); codified at 28 C.F.R.
§ 550.58 (1997). In this rule, the BOP added inmates with
prior convictions for sexual abuse of a minor to those deemed
ineligible for early release under § 3621(e). See 62 Fed. Reg.
at 53691. The BOP provided no explanation for this expan-
sion. See id.

    In 2000, the BOP promulgated a final rule, at issue in this
litigation, codified at 28 C.F.R. § 550.58(a)(1)(iv) (2000).3
See 65 Fed. Reg. 80745-01 (Dec. 22, 2000). In conjunction
with this rule, the BOP also responded to comments made in
response to the interim rules. See id. at 80746-48. The BOP
recognized comments expressing concerns regarding the use
of prior convictions, id. at 80745-46, but finalized the rule
without change. See id. at 80748.
  3
   Section 550.58 provides in relevant part:
      An inmate who was sentenced to a term of imprisonment pursu-
      ant to the provisions of 18 U.S.C. Chapter 227, Subchapter D for
      a nonviolent offense, and who is determined to have a substance
      abuse problem, and successfully completes a residential drug
      abuse treatment program during his or her current commitment
      may be eligible, in accordance with paragraph (a) of this section,
      for early release by a period not to exceed 12 months.
      (a) Additional early release criteria.
          (1) As an exercise of the discretion vested in the Director of
          the Federal Bureau of Prisons, the following categories of
          inmates are not eligible for early release:
                                     ***
          (iv) Inmates who have a prior felony or misdemeanor con-
          viction for homicide, forcible rape, robbery, or aggravated
          assault, or child sexual abuse offenses[.]
28 C.F.R. § 550.58(a)(1)(iv) (2000), current version at 28 C.F.R.
§ 550.55(b)(4)(i) (2009).
                       CRICKON v. THOMAS                   11733
   Since promulgation of the original BOP rule, we have
affirmed the BOP’s authority to exercise its discretion to cate-
gorically exclude inmates with a qualifying prior conviction
from eligibility for early release under § 3621(e). See Jacks v.
Crabtree, 114 F.3d 983, 984-86 (9th Cir. 1997); see also
Lopez v. Davis, 531 U.S. 230, 244 (2001) (recognizing the
BOP’s discretion under § 3621 to promulgate a regulation cat-
egorically denying early release to prisoners based on pre-
conviction conduct).

   However, as discussed in more detail below, we recently
ruled that, with respect to the categorical exclusion of inmates
convicted of offenses involving firearms, the BOP’s promul-
gation of § 550.58(a)(1)(vi)(B) (2000) violated the Adminis-
trative Procedure Act (APA). See Arrington v. Daniels, 516
F.3d 1106, 1113 (9th Cir. 2008). Applying § 706 of the APA,
we concluded “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),” and that the final
rule was therefore invalid with respect to that categorical
exclusion. Id. at 1112.

  B.    Factual Background

   In July, 2000, Crickon was convicted of conspiracy to pos-
sess with the intent to distribute methamphetamine in viola-
tion of 21 U.S.C. § 846. He was sentenced to 151 months of
imprisonment. Crickon is currently incarcerated at the Federal
Prison Camp in Sheridan, Oregon (FPC-Sheridan). His
expected release date, “via Good Conduct Time Release,” is
February 9, 2010.

   In March, 2007, Crickon received notice that he qualified
for participation in the BOP’s Residential Drug Abuse Pro-
gram (RDAP). However, in the same notice, Crickon was
informed that he was not eligible for the early release incen-
tive offered in § 3621(e). The sole reason provided for Crick-
11734                 CRICKON v. THOMAS
on’s ineligibility for early release was his conviction in 1970
for voluntary manslaughter, a crime the BOP categorized as
a violent offense.

   Crickon filed a federal habeas petition in district court
under 28 U.S.C. § 2241, challenging the BOP’s determination
that he was ineligible for the early release incentive. The dis-
trict court denied the petition, concluding that “[a]lthough
petitioner’s conviction for voluntary manslaughter occurred
almost thirty-eight years ago, the BOP’s determination that
petitioner is disqualified from the early release incentive . . .
because of this conduct was neither arbitrary nor capricious.”

  Crickon filed a timely notice of appeal and a certificate of
appealability was granted as to whether the BOP abused its
administrative discretion.

II.     STANDARD OF REVIEW

   We review de novo a district court’s denial of a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. Tablada v.
Thomas, 533 F.3d 800, 805 (9th Cir. 2008). We review the
BOP’s promulgation of § 550.58 under the APA, id., which
provides that an agency action must be set aside if it is “arbi-
trary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). We must review
the agency action based solely on the administrative record
“and determine whether the agency has articulated a rational
basis for its decision.” Tablada, 533 F.3d at 805 (citation
omitted).

III.    DISCUSSION

  A.     Validity of the BOP Regulation

   The APA provides that a “reviewing court shall hold
unlawful and set aside agency action, findings, and conclu-
sions found to be arbitrary, capricious, an abuse of discretion
                          CRICKON v. THOMAS                         11735
or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). Under the arbitrary and capricious standard, our
review of the BOP regulation is “highly deferential, presum-
ing the agency action to be valid and affirming the agency
action if a reasonable basis exists for its decision.” Northwest
Ecosystem Alliance v. U.S. Fish and Wildlife Service, 475
F.3d 1136, 1140 (9th Cir. 2007) (citation and internal quota-
tion marks omitted).

   “A reasonable basis exists where the agency considered the
relevant factors and articulated a rational connection between
the facts found and the choices made.” Arrington, 516 F.3d at
1112 (citation and internal quotation marks omitted). “The
reviewing court should not attempt itself to make up for [any]
deficiencies.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983). Thus, we may
“not supply a reasoned basis for the agency’s action that the
agency itself has not given.” Id. (citation omitted). Nor should
we “infer an agency’s reasoning from mere silence.” Arring-
ton, 516 F.3d at 1112 (citation omitted). However, “[e]ven
when an agency explains its decision with less than ideal clar-
ity, a reviewing court will not upset the decision on that
account if the agency’s path may reasonably be discerned.”
Alaska Dept. of Environmental Conservation v. E.P.A., 540
U.S. 461, 497 (2004) (citation and internal quotation marks
omitted).

   On appeal, Crickon argues that the BOP failed to articulate
a reasonable basis for the final rule excluding eligible prison-
ers with “stale” prior convictions from early release eligibility
and that the final rule is therefore invalid under the APA.4
  4
   As a preliminary matter, Crickon’s assertion that the district court did
not fully address the argument that the BOP rule violates the APA appears
to be correct. Although the district court acknowledged the “staleness”
argument raised by Crickon, it did not undertake a § 706(2)(A) analysis
to determine if the BOP’s actions in promulgating the final rule complied
with the APA. Because our review is conducted de novo, the lack of anal-
ysis does not affect our ability to consider the merits of the case.
11736                 CRICKON v. THOMAS
Review of the administrative record supports the conclusion
that the BOP rule encompassed in 28 C.F.R.
§ 550.58(a)(1)(iv) (2000) is invalid because the BOP failed to
provide any rationale for the categorical exclusion generally,
and because the rationale provided for considering any prior
conviction, regardless of its age, is premised upon a mistake
of law.

   Our recent ruling in Arrington squarely controls the out-
come of the present case. In Arrington, eighteen prisoners
who had been “convicted of offenses involving the carrying,
possession, or use of a firearm or other dangerous weapon or
explosives,” filed petitions for habeas corpus challenging
§ 550.58. 516 F.3d at 1111-12. They asserted that the BOP
had failed to comply with the APA in promulgating the rule
because it provided no rationale for its decision to categori-
cally exclude inmates convicted of nonviolent offenses
involving the use of a firearm. See id. Relying on the Supreme
Court’s decision in Lopez, 531 U.S. at 230, the district court
rejected the petitions, finding two rational bases for the cate-
gorical exclusion rule. See id. at 1112-13. We reversed, con-
cluding that the first rationale identified by the district court
— public safety — was “entirely absent from the administra-
tive record.” See id. at 1113. We noted that the second ratio-
nale — uniformity in application — was set forth by the BOP
in the administrative record. See id. at 1113-14. However, we
determined it was not a rational basis for the rule because the
BOP had failed to explain why, in seeking uniformity, it had
chosen to categorically exclude prisoners with nonviolent
convictions involving firearms rather than categorically
include them. See id. at 1114. We ultimately determined that
“[t]he agency’s lack of explanation for its choice renders its
decision arbitrary and capricious.” Id. (citation omitted).
Because we discerned no valid rationale for the categorical
exclusion, we held that the final rule was invalid under the
APA. See id.

  In Arrington, we acknowledged that both we, in Bowen v.
Hood, 202 F.3d 1211 (9th Cir. 2000), and the Supreme Court
                      CRICKON v. THOMAS                   11737
in Lopez, 531 U.S. at 230, articulated possible rationales to
support the firearm categorical exclusion. See id. at 1115.
However, we nevertheless reasoned that neither Bowen nor
Lopez addressed whether the rule was valid under the APA.
See id. Rather, those cases addressed whether the BOP’s exer-
cise of discretion was authorized under 18 U.S.C. § 3621. See
id. In Arrington, we also noted that the rationale identified in
Lopez was based on arguments made by counsel during the
litigation, rather than a rationale offered by the BOP during
promulgation of the regulation. See id. Therefore, we con-
cluded in Arrington that this rationale, absent from the admin-
istrative record, did not support the validity of the BOP
regulation under the APA. See id. at 1115-16.

   [1] The administrative record in this case includes several
references to the categorical exclusion of inmates with the
specified prior convictions. See, e.g., 60 Fed. Reg. at 27692;
65 Fed. Reg. at 80745-46, 80748-49; Program Statement
Number 5330.10, Ch. 6, p. 1; Change Notice 01 to Program
Statement Number 5330.10, Ch. 6, p. 2. However, as was the
case in Arrington, absent from the record is any explanation,
reasoning or reference to other sources through which the
BOP’s reasoning might be discerned for the decision to cate-
gorically exclude these inmates from early release eligibility.

   In the Federal Register notice announcing the first interim
rule in which the exclusion was introduced, the BOP’s only
explanation regarding the categorical exclusion stated:

    In exercising the Bureau’s discretion in reducing a
    sentence, the Bureau shall also review the criminal
    history of the inmate contained in the Presentence
    Investigation Report, and any inmate with a federal
    and/or state conviction for homicide, forcible rape,
    robbery, or aggravated assault shall also be excluded
    from consideration. Because state convictions may
    show a considerable range in the degree of violence
    used in the offense, the Bureau has chosen to use the
11738                       CRICKON v. THOMAS
       above cited categories of crimes, which are reported
       under the FBI Violent Crime Index, as the sole deter-
       minant of violence in the criminal history.

60 Fed. Reg. at 27692.

   [2] Beyond explaining that it decided upon the four identi-
fied categories of convictions because of the variation in vio-
lence level that may be found in state convictions, id., the
BOP provided no explanation for its decision to look to prior
convictions as the appropriate basis to determine categorical
exclusions. The BOP offered no rationale for its decision to
use the inmate’s criminal history as a surrogate for early
release ineligibility. The Change Notice issued in conjunction
with the release of its second interim rule, see Change Notice
01 to Program Statement Number 5330.10, merely empha-
sized that any adult conviction for homicide, forcible rape,
robbery, or aggravated assault would result in categorical exclu-
sion.5 The BOP neither explained why it was necessary to
provide this additional emphasis, nor cited to any data or
other factors it considered in crafting this comprehensive
exclusion. Id.

  When the BOP enacted the final rule in 2000, codified at
  5
      The Change Notice stated in relevant part::
      Any adult conviction for Homicide (including Non-negligent
      Manslaughter), Forcible Rape, Robbery, or Aggravated Assault is
      to be considered a crime of violence as it relates to previous crim-
      inal history; drug abuse treatment program coordinators must
      review available documents containing criminal history to ensure
      the inmate does not have any prior adult convictions for these
      crimes.
      For purposes of this Program Statement, “previous adult convic-
      tions” includes criminal convictions that occur at any time, prior
      to the inmate’s 3621(e) release date.
Change Notice 01 to Program Statement Number 5330.10, Ch. 6, p. 2
(emphasis in the original).
                           CRICKON v. THOMAS                        11739
28 C.F.R. § 550.58 (2000),6 it addressed comments received
in response to the three preceding interim rules. See 65 Fed.
Reg. at 80746-48.

   Relevant comments to the third interim rule again ques-
tioned the use of prior convictions. One comment argued “that
the regulations unduly restricted eligibility for a remedial pro-
gram by . . . excluding prisoners with previous convictions for
violent crimes . . .” 65 Fed. Reg. at 80748. Another comment
urged that “the early release incentive . . . be made available
to the broadest population,” “that some prior convictions (for
example, foreign convictions) were unreliable,” and that prior
convictions are “not necessarily predictive.” Id.

   In addressing the comment that the regulation unduly
restricted eligibility for the remedial program, the BOP
responded that the regulation did not have such an effect
because the “drug abuse treatment program is open to all
inmates with a documented need and interest in the program.”
Id. The BOP continued that “[t]he restrictions in question per-
tain to the conveyance of a separate incentive at our discre-
tion.” Id. As noted previously, however, the BOP provided no
insight into its rationale for excluding the specified categories
of inmates from early release eligibility. Nor did it respond to
the comment that prior convictions were not necessarily pre-
dictive of an inmate’s propensity to engage in further vio-
  6
    Similar to the notice announcing the first interim rule, the Federal
Register notice announcing the final rule stated:
      In exercising the Bureau’s discretion to reduce a sentence, we
      also review the inmate’s criminal history in the Presentence
      Investigation Report. We preclude early release for any inmate
      with an adult prior federal and/or state conviction for homicide,
      forcible rape, robbery, or aggravated assault. We selected the
      above categories of crimes, which are reported under the FBI
      Violent Crime Index, due to the extensive variations in statutes
      between states.
65 Fed. Reg. at 80745.
11740                  CRICKON v. THOMAS
lence, and were sometimes unreliable. See id. In denying that
the categorical exclusion had the effect of unduly restricting
eligibility for the early release incentive, id., the BOP failed
to reconcile the exclusion’s effect with Congress’s stated goal
of increasing participation in the “rigorous” treatment pro-
grams by codifying the early release incentive. See H.R. Rep.
103-320, p. 5.

   [3] Despite issuing three interim rules and receiving com-
ments relating to the use of prior convictions in response to
at least two of these three rules, the BOP never identified,
explained, or analyzed the factors it considered in crafting the
categorical exclusion. The Supreme Court has “frequently
reiterated that an agency must cogently explain why it has
exercised its discretion in a given manner.” Motor Vehicles
Mfrs. Ass’n, 463 U.S. at 48 (citations omitted). As we noted
in Arrington, “[a]lthough agencies enjoy wide discretion in
fashioning regulations governing the statutes that they are
charged with administering, section 706 of the APA requires
that they articulate a rationale when they exercise that discre-
tion.” 516 F.3d at 1114. This is precisely what the BOP failed
to do.

   [4] Aside from stating that it was promulgating
§ 550.58(a)(1)(iv) as an exercise of its “discretion to reduce
a sentence,” 65 Fed. Reg. at 80745, the BOP gave no indica-
tion of the basis for its decision. It did not reference pertinent
research studies, or case reviews. It did not describe the pro-
cess employed to craft the exclusion. It did not articulate any
precursor findings upon which it relied. It did not reveal the
analysis used to reach the conclusion that the categorical
exclusion was appropriate. Indeed, the administrative record
is devoid of any substantive discussion of the rationale under-
lying the BOP’s exercise of its discretion. As the Supreme
Court held in Burlington Truck Lines, Inc. v. United States,
371 U.S. 156, 167 (1962), where “[t]here are no findings and
no analysis . . . to justify the choice made, no indication of the
basis on which the [agency] exercised its expert discretion[,]”
                        CRICKON v. THOMAS                  11741
the APA “ will not permit” us to accept the BOP’s decision.
(citation omitted).

   Additionally, although the BOP provided a limited explana-
tion for its decision to include all prior convictions without
temporal restriction, see 65 Fed. Reg. at 80746, the reasoning
articulated by the BOP is cursory and non-responsive to the
comments. In addressing a suggestion that only convictions
within fifteen years should be considered, the BOP stated:

      Information regarding prior convictions is in the Pre-
      sentence Investigation Report (PSI). The PSI is a
      court document and is subject to review by the
      defendant and defense counsel. In general, informa-
      tion in the PSI about prior convictions may be lim-
      ited to the fifteen year period covered in the
      Sentencing Commission Criminal History Category.

      If, however, the PSI contains information on prior
      convictions beyond the period covered in the Crimi-
      nal History Category, we believe that we are acting
      in accordance with Congressional intent when we
      use the listed prior conviction as a disqualifying cri-
      terion.

Id.

   As Crickon noted, this explanation appears to be premised
on an effort to track the requirements imposed by the United
States Sentencing Commission when reporting a defendant’s
criminal history for the purpose of sentencing. See U.S.S.G.
Ch. 4. However, the requirements for reporting of a defen-
dant’s criminal history in a presentence report do not limit the
broad discretion afforded the BOP in setting eligibility stan-
dards for the incentive program. See Fed. R. Crim. P. 32(d)(2)
(“The presentence report must . . . contain . . . the defendant’s
history and characteristics, including . . . any prior criminal
record.”) (emphasis added); see also United States v. Miller,
11742                      CRICKON v. THOMAS
588 F.2d 1256, 1265 (9th Cir. 1978), as amended (recogniz-
ing that any prior criminal history, regardless of its relation to
the current criminal conviction, must be included in the pre-
sentence report under Rule 32).

   [5] More importantly, the BOP’s expressed belief that it
was “acting in accordance with Congressional intent” is diffi-
cult to square with Congress’s expressed intent to provide an
incentive to encourage maximum participation in the BOP’s
substance abuse treatment programs. See H.R. Rep. 103-320,
p. 5. It is easy to understand why a defendant’s complete
criminal history record should be considered under the advi-
sory Sentencing Guidelines, and when the sentencing judge
determines the ultimate sentence under 18 U.S.C. § 3553(a).
Without a complete compilation of the defendant’s criminal
history, the sentencing judge would be unable to fully con-
sider the factors delineated in 18 U.S.C. § 3553(a),7 as
  7
   Section 3553(a) delineates the following factors to be considered:
      (1) the nature and circumstances of the offense and the history
      and characteristics of the defendant;
      (2) the need for the sentence imposed—
          (A) to reflect the seriousness of the offense, to promote
          respect for the law, and to provide just punishment for the
          offense;
          (B) to afford adequate deterrence to criminal conduct;
          (C) to protect the public from further crimes of the defen-
          dant; and
          (D) to provide the defendant with needed educational or
          vocational training, medical care, or other correctional treat-
          ment in the most effective manner;
      (3) the kinds of sentences available;
      (4) the kinds of sentence and the sentencing range established for
      —
          (A) the applicable category of offense committed by the
          applicable category of defendant as set forth in the guidelines
          —
                          CRICKON v. THOMAS                        11743
required prior to imposing a sentence. See United States v.
Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc) (explain-
ing that the “§ 3553(a) factors are to be taken into account”).
It is more difficult to comprehend the rationale for including
older convictions in a regulatory scheme crafted as part of an
incentive to encourage participation in a prison-sponsored
drug rehabilitation program. The difficulty increases when the
apparent inconsistency with Congress’s expressed intent is
considered. Absent articulation of a rational connection
between the factors the BOP examined and the conclusions it
reached, 28 C.F.R. § 550.58(a)(1)(iv) must be invalidated.8
See Northwest Coalition for Alternatives to Pesticides
(NCAP) v. EPA, 544 F.3d 1043, 1052 n.7 (9th Cir. 2008)
(“[W]here the agency’s reasoning is irrational, unclear, or not
supported by the data it purports to interpret, we must disap-
prove the agency’s action.”).

           (i) issued by the Sentencing Commission . . . ; and
           (ii) that, except as provided in section 3742(g), are in
           effect on the date the defendant is sentenced; . . .
    (5) any pertinent policy statement—
        (A) issued by the Sentencing Commission pursuant to sec-
        tion 994(a)(2) of title 28, United States Code . . . ; and
        (B) that, except as provided in section 3742(g), is in effect
        on the date the defendant is sentenced.
    (6) the need to avoid unwarranted sentence disparities among
    defendants with similar records who have been found guilty of
    similar conduct; and
    (7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
   8
     In his briefs and during oral argument, Crickon noted the extensive
studies undertaken by the Sentencing Commission in determining the
appropriate temporal limits to be placed on the use of prior criminal con-
victions for sentencing calculation purposes. These studies reflect the
wealth of data available to the BOP when it crafted the categorical exclu-
sion relating to prior convictions. Whether the BOP considered these, or
similar studies, cannot be ascertained from the administrative record.
11744                    CRICKON v. THOMAS
   [6] On appeal, the BOP argues that the agency’s path in
creating the categorical exclusion may be discerned — and
the final rule upheld — because the rule implements Con-
gress’s intention to make the early release incentive only
available to non-violent offenders. However, as government
counsel acknowledged during oral argument, the BOP’s con-
tention that § 3621(e)(2)(B) reveals Congress’s intention to
limit the incentive to prisoners who have no past convictions
for violent crimes is not reflected in the statute’s plain lan-
guage. Section 3621(e)(2)(B) distinguishes only between
inmates currently serving sentences for violent versus nonvio-
lent offenses; it does not address inmates’ prior convictions.
See id. (providing that the BOP may reduce “[t]he period a
prisoner convicted of a nonviolent offense remains in custody
after successfully completing a treatment program.”); see also
Jacks, 114 F.3d at 985 n.2 (noting that the BOP conceded that
inmates whose current conviction was for a nonviolent
offense, but who had prior convictions for one of the four dis-
qualifying violent offenses, were eligible for early release
under the statute). Tellingly, the BOP never articulated this
rationale in the administrative record. Thus, the assertion now
made on appeal that the BOP’s “path” may be discerned from
the record because it “mirrors the statute,” is “precisely the
type of post hoc rationalization of appellate counsel that we
are forbidden to consider in conducting review under the
APA.” Arrington, 516 F.3d at 1113 (rejecting rationale recited
by the district court that was “entirely absent from the admin-
istrative record”) (citation, alteration and internal quotation
marks omitted).

   [7] Because the BOP failed to articulate in the administra-
tive record the rationale underlying its decision to adopt a cat-
egorical exclusion of inmates with specific prior convictions,
we conclude that the BOP’s promulgation of the categorical
exclusion in § 550.58(a)(1)(iv) did not comply with the APA.9
  9
   The BOP attempts to distinguish Arrington by suggesting that, in
Arrington, the categorical exclusion of inmates convicted of nonviolent
                           CRICKON v. THOMAS                         11745
See Arrington, 516 F.3d at 1114 (requiring articulation of
agency rationale).

  B.    Relief Available to Crickon10

offenses involving the use of firearms “was facially inconsistent with the
statutory text.” The BOP argues that the facial inconsistency with the stat-
utory text and the lack of an adequate explanation resulted in our conclu-
sion that the BOP’s rationale could not be discerned. However, the ruling
in Arrington was not premised on the fact that the rule was facially at odds
with the statute. Indeed, we recognized that “either choice [to exclude or
include these inmates from early release eligibility] in all likelihood would
have withstood judicial scrutiny . . .” Arrington, 516 F.3d at 1114. Rather,
because the BOP “offered no explanation for why it exercised its discre-
tion to select one rather than the other” we determined that the BOP’s
decision was arbitrary and capricious. Id.
   Similarly, we have already determined that under the statute, the BOP’s
choice to exclude inmates with the specified prior convictions is a proper
exercise of its discretion under the statute. See Jacks, 114 F.3d at 986.
However, under the APA, the BOP had a duty to provide some rationale
for its choice, beyond merely stating that it was exercising its discretion.
See Arrington, 516 F.3d at 1114 (“Although agencies enjoy wide discre-
tion in fashioning regulations governing the statutes that they are charged
with administering, section 706 of the APA requires that they articulate a
rationale when they exercise that discretion. This is not an empty require-
ment.”).
   10
      Crickon raises two additional arguments. First, Crickon argues that the
BOP acted arbitrarily and capriciously in promulgating the rule without
consideration of the research undertaken by the Sentencing Commission.
However, nothing in our precedent dictates which sources the BOP should
consider in its rulemaking process. See, e.g., Arrington, 516 F.3d at 1112
(noting only that the agency must have considered the “relevant factors”).
In addition, whether or not the BOP considered or ignored the empirical
data gathered by the Sentencing Commission is not clear from the record.
   Second, Crickon asserts that the BOP acted contrary to law because
Congress delegated to the Sentencing Commission the responsibility for
determining the weight to give prior convictions. However, the BOP’s rule
does not intrude upon the Sentencing Commission’s authority to deter-
mine the weight given to prior convictions for purposes of calculating the
sentences. See Jacks, 114 F.3d at 986 n.4 (noting that denial of the one-
year sentence reduction “merely means that the inmate will have to serve
out his sentence as expected”). In any event, we have squarely acknowl-
edged the BOP’s authority to exclude inmates with prior violent convic-
tions from eligibility for early release. See id. at 986.
11746                      CRICKON v. THOMAS
   [8] The government argues that even if we conclude that
the final rule is invalid, the interim rules would also disqualify
Crickon from early release. The government’s argument is
based on our previous holding that “[t]he effect of invalidat-
ing an agency rule is to reinstate the rule previously in force.”
Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005) (cita-
tion omitted). However, in Paulsen, we declined to reinstate
the rule previously in force, because that rule “erroneously
interpreted” § 3621(e)(2)(B). Id. at 1008 (citation omitted).
Because the interim rules in this case suffer from the same
defect as the final rule — lack of articulation of the agency’s
rationale — we similarly decline to reinstate them.11 See id.

IV.     CONCLUSION

   [9] Although the BOP is afforded wide discretion in pro-
mulgating regulations governing the administration of 18
U.S.C. § 3621(e), it must comply with its obligation under the
APA to articulate its rationale for exercising such discretion.
The administrative record before us is devoid of any contem-
poraneous rationale for the BOP’s promulgation of a rule cat-
egorically excluding inmates with certain prior convictions
from early release eligibility. The government’s arguments on
   11
      The government’s contention that, even if we determine that the
interim rules are invalid, we must give deference to the BOP’s Program
Statements under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), also
fails. Skidmore deference requires us to consider “the process the agency
used to arrive at its decision.” Tablada, 533 F.3d at 806 (citations omit-
ted). “Among the factors we consider are the interpretation’s thorough-
ness, rational validity, consistency with prior and subsequent
pronouncements, the logic and expertness of an agency decision, the care
used in reaching the decision, as well as the formality of the process
used.” Id. (citation, internal quotation marks and alterations omitted). Pro-
gram Statement Number 5330.10 and its subsequent Change Notices suf-
fer from the same infirmities as that of the BOP’s promulgation of
§ 550.58. All documents are equally devoid of the BOP’s reasoning for
invoking the categorical exclusion for prior convictions. See Program
Statement Number 5330.10, Ch. 6, pp. 1-2; see also Change Notice 01 to
Program Statement Number 5330.10, Ch. 6, p. 2.
                      CRICKON v. THOMAS                   11747
appeal are impermissible post-hoc rationalizations. We follow
the precedent set in Arrington, and reverse the district court’s
denial of Crickon’s habeas corpus petition. We remand for the
district court to grant Crickon’s petition and instruct the BOP
to reconsider Crickon’s eligibility for early release under
§ 3621(e)(2)(B) without regard to his prior conviction for vol-
untary manslaughter.

  REVERSED AND REMANDED.
