                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-28-1997

Stiver v. Meko
Precedential or Non-Precedential:

Docket
96-3400




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Recommended Citation
"Stiver v. Meko" (1997). 1997 Decisions. Paper 267.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/267


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Filed November 28, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-3400

ROBERT C. STIVER,

v.

WARDEN JAMES MEKO,

       Robert Stiver,

       Appellant.

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 96-cv-00339)

ARGUED SEPTEMBER 23, 1997

BEFORE: COWEN, ROTH, and LEWIS, Circuit Judges.

(Filed November 28, 1997)

       Karen S. Gerlach (ARGUED)
       Office of Federal Public Defender
       960 Penn Avenue
       415 Convention Tower
       Pittsburgh, PA 15222

        Attorney for Appellant




       Paul J. Brysh (ARGUED)
       Robert L. Eberhardt
       Office of United States Attorney
       633 United States Post Office &
        Courthouse
       Pittsburgh, PA 15219

        Attorneys for Appellee

OPINION OF THE COURT

LEWIS, Circuit Judge.
Petitioner Robert Stiver contests a decision by the Bureau
of Prisons (the "Bureau") denying him a one-year sentence
reduction because of his previous convictions for violent
offenses. Under the 1994 Violent Crime Control and Law
Enforcement Act, "prisoners convicted of a nonviolent
offense" are eligible for a one-year sentence reduction upon
successful completion of a drug treatment program. See 18
U.S.C. S 3621(e)(2)(B).1 Stiver has been incarcerated since
1992 for possession of heroin with intent to distribute, a
nonviolent offense. Because he has successfully completed
a drug treatment program during this prison term, Stiver
contends he is eligible for early release under the statute.
Nonetheless, the Bureau denied him a sentence reduction
pursuant to its regulation that categorically excludes
inmates previously convicted of a violent crime from
eligibility for early release under section 3621(e)(2)(B). See
28 C.F.R. S 550.58.2 Stiver previously was convicted of
_________________________________________________________________

1. 18 U.S.C. S 3621(e)(2)(B) states

       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.

2. 28 C.F.R. S 550.58 provides in relevant part:

       Except as provided in this paragraph, an inmate . . . who completes
       a residential drug abuse treatment program including subsequent
       transitional services in a community-based program (i.e., in a

                                2



robbery and aggravated assault, both of which are violent
offenses.

Stiver sought a writ of habeas corpus pursuant to 28
U.S.C. S 2241, alleging that the Bureau's regulation
conflicts with the enabling statute, 18 U.S.C.
S 3621(e)(2)(B). He further alleged that the Bureau's
regulation, 28 C.F.R. S 550.58, violates the double jeopardy
and ex post facto clauses of the United States Constitution.
The district court denied habeas corpus relief with regard to
each of Stiver's claims, and this appeal followed.

The district court exercised jurisdiction pursuant to 28
U.S.C. S 2241.3 Our jurisdiction arises under 28 U.S.C.
S 1291.4 We will affirm.
I.

Stiver contends that 18 U.S.C. S 3621(e)(2)(B) allows the
Bureau to consider only the offense for which an inmate is
presently incarcerated when deciding whether to grant a
sentence reduction. Thus, he argues, 28 U.S.C. S 550.58
represents an impermissible expansion of the authority
Congress delegated to the Bureau. We review this question
_________________________________________________________________

       Community Corrections Center or on home confinement) 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. The following categories of inmates are not
       eligible: INS detainees, pretrial inmates, contractual boarders
(for
       example, D.C., State, or military inmates), inmates whose current
       offense is determined to be a crime of violence as defined in 18
       U.S.C. S 924(c)(3), inmates who have a prior conviction for
homicide,
       forcible rape, robbery, or aggravated assault, and inmates who are
       not eligible for participation in a community-based program as
       determined by the Warden on the basis of his or her professional
       discretion.

3. Under 28 U.S.C. S 2241(a), "[w]rits of habeas corpus may be granted
by the Supreme Court, any justice thereof, the district courts and any
circuit judge within their respective jurisdictions.. . ."

4. "The courts of appeals . . . have jurisdiction of appeals from all
final
decisions of the district courts of the United States . . . ." 28 U.S.C.
S 1291.

                                3



of statutory interpretation de novo. See Barden v. Keohane,
921 F.2d 476, 479 (3d Cir. 1990).

When examining an agency's construction of the statute
it administers, we must first inquire "whether Congress has
directly spoken to the precise question at issue." Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842 (1984). If Congress has directly addressed
the issue and the legislative intent is unambiguous, our
inquiry must cease. See id.

The contested statute provides that

       [t]he 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.

18 U.S.C. S 3621(e)(2)(B). Despite Stiver's contention to the
contrary, it is clear that section 3621(e)(2)(B) does not
indicate whether "convicted of a nonviolent offense" refers
to all convictions or only the most recent one, for which the
inmate presently is incarcerated. Instead, its language
grants the Bureau broad discretion to approve or deny a
sentence reduction. In other words, section 3621(e)(2)(B) is
silent on the issue of whether the Bureau may consider
relevant the violent status of a prisoner's past convictions
in deciding whether the prisoner is eligible for early release.
When a statute expressly leaves a gap for an agency to fill
with its rulemaking authority, the agency's regulations
must receive "controlling weight unless they are arbitrary,
capricious, or manifestly contrary to the statute." Chevron,
467 U.S. at 844. If, as here, the gap is merely implicit, we
nonetheless must uphold the agency's construction if it
has chosen " `a reasonable accommodation of conflicting
policies that were committed to the agency's care by the
statute . . . .' " Id. at 845 (quoting United States v. Shimer,
367 U.S. 374 (1961)). The Bureau, in the exercise of its
discretion, codified 28 C.F.R. S 550.58, expressing a policy
determination that inmates who have committed certain

                                4



enumerated violent offenses in the past, will not be eligible
for early release.5

We find that the Bureau's interpretation of the statute
represents a reasonable accommodation of Congress's goals
of providing an incentive for inmates to obtain drug
treatment while at the same time ensuring that persons
likely to commit violent crimes do not receive early release.
See H. Rep. No. 103-320, at 2 (1993) (describing purposes
of statute). The Bureau, in the exercise of its discretion in
administering the early release element of the residential
drug abuse treatment program, has imposed an additional
qualification: prisoners' non-conviction of certain
enumerated past violent offenses, in addition to the
requirement that the present conviction be for a non-violent
offense. It was not attempting to, and has not interpreted
the phrase "convicted for a violent offense" in a manner at
odds with Congress's intended meaning, as Stiver suggests.

Stiver contends that this conclusion conflicts with our
recent decision in Roussos v. Menifee, No. 97-7011, 1997
WL 401319 (3d Cir. July 18, 1997). Roussos held that a
Bureau program statement may not define the words
"nonviolent offense" in section 3621(e)(2)(B) to include
offenses for which a sentencing court imposes a two-level
firearms enhancement. We held that since section
3621(e)(2)(B)'s unambiguous language permits
consideration only of a crime's defining elements when
deciding whether that crime is a violent offense, the
Bureau's reliance on additional factors (i.e., the firearms
enhancement) violated the statute.

Our holding in Roussos does not control this appeal.
First, Roussos required us to interpret a different part of
section 3621(e)(2)(B), addressing the significance of
"nonviolent offense" rather than "convicted." More
importantly, Roussos involved only a challenge to a Bureau
program statement; Stiver, on the other hand, asks us to
strike down a regulation. As we noted in Koray v. Sizer, 21
F.3d 558, 562 (3d Cir. 1994), rev'd on other grounds sub
_________________________________________________________________

5. The Bureau enumerated four such offenses: homicide, forcible rape,
robbery and aggravated assault. 28 C.F.R. S 550.58. Stiver was
previously convicted of robbery and aggravated assault.

                                5



nom. Reno v. Koray, 515 U.S. 50 (1995), program
statements are entitled to considerably less deference than
published regulations because program statements are
"merely internal agency guidelines [that] may be altered by
the Bureau at will." See also Roussos, 1997 WL 401319, at
*5 (noting that program statements receive only "some
deference," rather than the greater deference accorded
regulations under Chevron). By contrast, the regulation at
issue here underwent extensive public notice and comment
before it was adopted and can only be altered by the Board
after an equally elaborate process. See Jacks v. Crabtree,
114 F.3d 983, 984, 985 n.1 (9th Cir. 1997). Moreover, our
decision in Roussos rested in part on the fact that the
contested program statement conflicted not only with
section 3621(e)(2)(B), but with the Bureau's own regulations
as well. Roussos, 1997 WL 401319, at *4 ("[T]he [Bureau]
converted a nonviolent crime into a violent one by means of
a Program Statement that is inconsistent with the language
of the statute, and its own regulations."). Thus Roussos is
inapposite to the issues presented in this appeal.

II.

Stiver also contends that applying the Bureau regulation
to his case violates the ex post facto clause of the United
States Constitution. This argument is without merit. We
have held that two conditions must be met for a law to be
ex post facto. "First, the law must be retrospective, that is,
it must apply to events occurring before its enactment.
Second, the change in the law must alter the definition of
criminal conduct or increase the penalty by which a crime
is punishable." United States v. Dozier, 119 F.3d 239, 241
(3d Cir. 1997) (citations omitted). Stiver suffers no
disadvantage as a result of the regulation. His sentence
began in 1992, before section 3621(e)(2)(B) was enacted. At
that time he could not have been eligible for a one-year
sentence reduction for completing a substance abuse
program, because the enabling statute did not yet exist.
Today, under 28 C.F.R. S 550.58, he is still ineligible for the
sentence reduction. The fact that he arguably was eligible
for early release during the brief period between the
enactment of section 3621(e)(2)(B) and the Bureau's
adoption of 28 C.F.R. S 550.58 is irrelevant.

                                6



The purpose of the prohibition against ex post facto laws
is to assure that legislative acts "give fair warning of their
effect and permit individuals to rely on their meaning until
explicitly changed." Weaver, 450 U.S. at 28-29. "Critical to
relief under the Ex Post Facto Clause is not an individual's
right to less punishment, but the lack of fair notice and
governmental restraint when the legislature increases
punishment beyond what was prescribed when the crime
was consummated." Weaver, 450 U.S. at 31. In Stiver's
case there can be no violation of the ex post facto clause
because the legal consequences of his crime of heroin
possession were the same when he committed it as they are
today.

III.

We must also reject Stiver's argument that 28 C.F.R.
S 550.58 violates the Fifth Amendment's double jeopardy
clause. The double jeopardy clause "protects against three
distinct abuses: a second prosecution for the same offense
after acquittal; a second prosecution for the same offense
after conviction; and multiple punishments for the same
offense." United States v. Halper, 490 U.S. 435, 440 (1989).
Stiver invokes the last of these protections in challenging
the regulation. This argument is misguided. Stiver's
ineligibility for early release under 28 C.F.R.S 550.58 does
not subject him to multiple punishments for a single
offense, because, as noted above, his sentence has not
increased beyond that originally imposed.

For the foregoing reasons, we will affirm the district
court's decision in its entirety.

A True Copy:
Teste:

         Clerk of the United States Court of Appeals
         for the Third Circuit

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