No. 99-7504 

In the Supreme Court of the United States 

CHRISTOPHER A. LOPEZ, PETITIONER 

v. 

RANDY J. DAVIS, WARDEN, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT 

BRIEF FOR THE RESPONDENTS 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

JAMES K. ROBINSON 

Assistant Attorney General 

MICHAEL R. DREEBEN 

Deputy Solicitor General 

BETH S. BRINKMANN 

Assistant to the Solicitor 

General 

THOMAS M. GANNON 

Attorney 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

Whether the Bureau of Prisons may exercise its dis- 
cretion under 18 U.S.C. 3621(e)(2)(B) to deny eligibility 
for early release from custody, based on the successful 
completion of a substance abuse treatment program, to 
the category of prisoners whose current offense is a 
felony that “involved the carrying, possession, or use of 
a firearm.” 28 C.F.R. 550.58(a)(1)(vi)(B). 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Statutory and regulatory provisions involved ......................... 
2 

Statement ........................................................................................ 4 

Summary of argument .................................................................. 
15 

Argument: 

The Director of the Bureau of Prisons did not abuse 

her discretion in categorically denying early 

release under 18 U.S.C. 3621(e)(2)(B) to prisoners, 

including petitioner, whose current offense is a 

felony that involved the carrying, possession, or use 

of a firearm ............................................................................. 

17 

A. Section 3621(e)(2)(B) commits to the discretion of 

the Bureau of Prisons the determination of which 

prisoners who satisfy the statutory prerequisites 

for early release are granted such release ................. 
17 

B. The Bureau of Prisons’ categorical denial of 

early release is well within the broad discretion 

granted it by Congress .................................................. 

23 

Conclusion ....................................................................................... 31 

TABLE OF AUTHORITIES 

Cases: 

American Hosp. Ass’n v. NLRB, 499 U.S. 606 

(1991) ........................................................................................ 

16, 27 

Anderson v. Yungkau, 329 U.S. 482 (1947) ...................... 

18 

Bowen v. Hood, 202 F.3d 1211 (9th Cir.), petitions 

for cert. pending, Nos. 99-10159 & 99-10221 ..................... 

28 

Bush v. Pitzer, 133 F.3d 455 (7th Cir. 1997) ..................... 

8 

Byrd v. Hasty, 142 F.3d 1395 (11th Cir. 1998) ........... 

8, 27-28 

Chevron U.S.A. Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837 (1984) ...................................... 14, 23 

(III) 

IV 

Cases—Continued: Page 

Christensen v. Harris County, 120 S. Ct. 1655 

(2000) ........................................................................................ 25 

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) .................. 

25 

Cortez Byrd Chips, Inc. v. Harbert Constr. Co., 120 

S. Ct. 1331 (2000) ................................................................... 

17 

Downey v. Crabtree, 100 F.3d 662 (9th Cir. 1996) ........... 

8-9 

Federal Power Comm’n v. Texaco, Inc., 377 U.S. 33 

(1964) ........................................................................................ 

26, 27 

Fook Hong Mak v. INS, 435 F.2d 728 (2d Cir. 

1970) ......................................................................................... 27 

Fristoe v. Thompson, 144 F.3d 627 (10th Cir. 

1998) ......................................................................................... 

8, 27 

Heckler v. Campbell, 461 U.S. 458 (1983) ......................... 

27 

Hewitt v. Helms, 459 U.S. 460 (1983) ................................. 

20 

INS v. Yang, 519 U.S. 26 (1996) ................................. 

16, 26, 28 

Independent Fed’n of Flight Attendants v. Zipes, 

491 U.S. 754 (1989) ................................................................. 

27 

Kilpatrick v. Houston, 197 F.3d 1134 (11th Cir.) aff ’g 

36 F. Supp. 2d 1328 (N.D. Fla. 1999), petition for cert. 

pending, No. 99-2008 ............................................................. 

27-28 

Lincoln v. Vigil, 508 U.S. 182 (1993) .................................. 

25 

Martin v. Gerlinski, 133 F.3d 1076 (8th Cir. 

1998) ................................................................................... 

8, 14, 28 

Martin v. Occupational Safety & Health Review 

Comm’n, 499 U.S. 144 (1991) .............................................. 

24 

Moody v. Daggett, 429 U.S. 78 (1976) ................................ 

20 

Muscarello v. United States, 524 U.S. 125 (1998) ............ 

22 

Pelissero v. Thompson, 170 F.3d 442 (4th Cir. 

1999) ......................................................................................... 8 

Prows v. BOP, 981 F.2d 466 (10th Cir. 1992), cert. 

denied, 510 U.S. 830 (1993) .................................................. 

21 

Reno v. Koray, 515 U.S. 50 (1995) ............................... 

22, 24, 25 

Roussos v. Menifee, 122 F.3d 159 (3d Cir. 1997) ............. 

8 

United States ex rel. Siegel v. Thoman, 156 U.S. 

353 (1895) ................................................................................. 18-19 

V 

Cases—Continued: Page 

United States v. Rodgers, 461 U.S. 677 (1983) ................. 

17 

United States v. Sotelo, 94 F.3d 1037 (7th Cir. 

1996) ......................................................................................... 20 

United States v. Storer Broad. Co., 351 U.S. 192 

(1956) ........................................................................................ 27 

United States v. Williams, 65 F.3d 301 (2d Cir. 

1995) ......................................................................................... 20 

United States v. Wilson, 503 U.S. 329 (1992) ................... 

20 

Venegas v. Henman, 126 F.3d 760 (5th Cir. 1997), 

cert. denied, 523 U.S. 1108 (1998) ....................................... 

8 

Ward v. Booker, 202 F.3d 1249 (10th Cir.), petition for 

cert. pending, No. 00-18 ...................................................... 

23, 27 

Statutes, regulations and sentencing guidelines: 

Administrative Procedure Act, 5 U.S.C. 551 et seq.: 

5 U.S.C. 553 ............................................................................. 

24 

5 U.S.C. 553(b)(A) .................................................................. 

25 

5 U.S.C. 553(b)(B) .................................................................. 

25 

5 U.S.C. 553(d)(1) ................................................................... 

25 

5 U.S.C. 553(d)(2) ................................................................... 

25 

5 U.S.C. 553(d)(3) ................................................................... 

25 

Violent Crime Control and Law Enforcement Act of 

1994, Pub. L. No. 103-322, Tit. III, Subtit. T, § 32001, 

108 Stat. 1896-1898 ................................................................ 

5-6 

18 U.S.C. 924(c)(3) (1994 & Supp. IV 1998) ............... 

6, 7, 8, 9, 10 

18 U.S.C. 3621 ............................................................................ 

5 

18 U.S.C. 3621(b) ....................................................................... 

5, 20 

18 U.S.C. 3621(e) ................................................................... 

2, 6, 9 

18 U.S.C. 3621(e)(1) .................................................................. 

18, 19 

18 U.S.C. 3621(e)(2)(A) ............................................................ 

19, 20 

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

passim 

18 U.S.C. 3621(e)(5)(B) ............................................................. 

19 

18 U.S.C. 3622 ............................................................................ 

20 

18 U.S.C. 4042(a)(1) .................................................................. 

20 

18 U.S.C. 4081 ............................................................................ 

20 

21 U.S.C. 841 (1994 & Supp. IV 1998) ................................... 7, 11 

VI 

Statutes, regulations and sentencing guidelines—Continued: 
Page 

21 U.S.C. 841(a) ......................................................................... 

11 

21 U.S.C. 841(a)(1) .................................................................... 

12 

21 U.S.C. 846 (1994 & Supp. IV 1998) ................................... 

7, 11 

28 U.S.C. 2241 ............................................................................ 
12 

28 C.F.R.: 

Section 550.56 ......................................................................... 

5 

Section 550.57(a) .................................................................... 
29 

Section 550.57(a)(1)-(3) ......................................................... 
29 

Section 550.58 ........................................... 
3, 10, 12, 13, 23, 24, 25 

Section 550.58 (1995) ............................................................. 

7 

Section 550.58(a) .................................................................... 
10, 26 

Section 550.58(a)(1) ............................................................... 
15 

Section 550.58(a)(1)(iv) ......................................................... 
30 

Section 550.58(a)(1)(vi)(A)-(D) ............................................ 
10 

Section 550.58(a)(1)(vi)(B) .............................................. 
4, 15, 29 

Section 550.58(a)(1)(vi)(D) ................................................... 
30 

United States Sentencing Guidelines: 
§ 2D1.1 ..................................................................................... 
7, 12 

§ 2D1.1(b)(1) ............................................................................ 
12 

§ 2D1.11 ................................................................................... 
7 

Miscellaneous: 

Attorney General’s Manual on the Administrative 

Procedure Act (1947) ............................................................ 

25 

Bureau of Prisons Program Statement: 
5162.02 (July 24, 1995) ........................................................... 
7, 14 

5162.04 (Oct. 9, 1997) ......................................................... 
passim 

5330.10, CN-03 (Oct. 9, 1997) ........................................... 
12, 25 

Bureau of Prisons, Substance Abuse Treatment 

Programs in the Federal Bureau of Prisons, Report 
to Congress (Jan. 2000) ......................................................... 

29 
139 Cong. Rec. (1993): 

p. 27,209 ................................................................................... 

22 

p. 27,221 ................................................................................... 
22 

p. 27,250 ................................................................................... 
21 

p. 27,255 ................................................................................... 
21 

p. 27,505 ................................................................................... 22 

VII 

Miscellaneous—Continued: Page 

p. 27,588 ................................................................................... 

22 

p. 27,606 ................................................................................... 
22 

p. 32,286 ................................................................................... 
22 

p. 32,326 ................................................................................... 
22 

Kenneth Culp Davis, Administrative Law Text (3d ed. 
1972) ......................................................................................... 27 

60 Fed. Reg. 27,692-27,695 (1995) .......................................... 

6 

61 Fed. Reg. 25,121-25,122 (1996) .......................................... 
9 

62 Fed. Reg. (1997): 

p. 53,690 ................................................................................... 

9, 25 

p. 53,691 ................................................................................... 
9 

H.R. 3350, 103d Cong., 1st Sess. (1993) ................................ 
21 

H.R. Rep. No. 320, 103d Cong., 1st Sess. (1993) .... 
14, 21, 26, 30 

H.R. Rep. No. 694, 103d Cong., 2d Sess. (1994) ................... 
22 

H.R. Rep. No. 711, 103d Cong., 2d Sess. (1994) ................... 
22 

S. 1067, 103d Cong., 1st Sess. (1993) ...................................... 21 

In the Supreme Court of the United States 

No. 99-7504 

CHRISTOPHER A. LOPEZ, PETITIONER 

v. 

RANDY J. DAVIS, WARDEN, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT 

BRIEF FOR THE RESPONDENTS 

OPINIONS BELOW 

The opinion of the court of appeals (J.A. 23-28) is 
reported at 186 F.3d 1092. The opinion of the district 
court (J.A. 8-20) is unreported. 

JURISDICTION 

The judgment of the court of appeals was entered on 
August 10, 1999. A petition for rehearing was denied 
on September 16, 1999 (J.A. 29). The petition for a writ 
of certiorari was filed on December 15, 1999, and was 
granted on April 24, 2000. The jurisdiction of this Court 
rests on 28 U.S.C. 1254(1). 

(1) 

2 

STATUTORY AND REGULATORY 
PROVISIONS INVOLVED 

1. Section 3621(e) of Title 18 of the United States 
Code provides in relevant part: 

(e) SUBSTANCE ABUSE TREATMENT.— 

(1) PHASE-IN. —In order to carry out the 
requirement of the last sentence of subsection (b) of 
this section, that every prisoner with a substance 
abuse problem have the opportunity to participate 
in appropriate substance abuse treatment, the 
Bureau of Prisons shall, subject to the availability 
of appropriations, provide residential substance 
abuse treatment (and make arrangements for 
appropriate aftercare)— 

(A) for not less than 50 percent of eligible 
prisoners by the end of fiscal year 1995, with 
priority for such treatment accorded based on an 
eligible prisoner’s proximity to release date; 

(B) for not less than 75 percent of eligible 
prisoners by the end of fiscal year 1996, with 
priority for such treatment accorded based on an 
eligible prisoner’s proximity to release date; and 

(C) for all eligible prisoners by the end of 
fiscal year 1997 and thereafter, with priority for 
such treatment accorded based on an eligible 
prisoner’s proximity to release date. 

3 

(2) INCENTIVE FOR PRISONERS’ SUCCESSFUL 

COMPLETION OF TREATMENT PROGRAM.— 

(A) GENERALLY—Any prisoner who, in the 
judgment of the Director of the Bureau of 
Prisons, has successfully completed a program of 
residential substance abuse treatment provided 
under paragraph (1) of this subsection, shall re- 
main in the custody of the Bureau under such 
conditions as the Bureau deems appropriate. If 
the conditions of confinement are different from 
those the prisoner would have experienced 
absent the successful completion of the treat- 
ment, the Bureau shall periodically test the 
prisoner for substance abuse and discontinue 
such conditions on determining that substance 
abuse has recurred. 

(B) PERIOD OF CUSTODY.—The period a 
prisoner convicted of a nonviolent offense re- 
mains 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 pris- 
oner must otherwise serve. 

2. Section 550.58 of Title 28 of the Code of Federal 
Regulations provides in relevant part: 

Consideration for early release. 

* * * * * 

(a) Additional early release criteria. (1) As an 
exercise of the discretion vested in the Director of 

4 

the Federal Bureau of Prisons, the following cate- 
gories of inmates are not eligible for early release: 

* * * * * 

(vi) Inmates whose current offense is a felony: 

* * * * * 

(B) That involved the carrying, possession, or 
use of a firearm or other dangerous weapon or ex- 
plosives (including any explosive material or ex- 
plosive device) * * * . 

3. The Bureau of Prisons’ Program Statement 
5162.04 (Oct. 9, 1997) is reproduced in the appendix to 
petitioner’s brief at Pet. Br. App. 29-54. 

STATEMENT 

Section 3621(e)(2)(B) of Title 18 of the United States 
Code provides that the Bureau of Prisons (BOP or 
Bureau) may reduce by up to one year the prison term 
of a prisoner convicted of a nonviolent offense who 
successfully completes a substance abuse treatment 
program. Petitioner was denied eligibility for such 
early release by the application of a BOP regulation, 
28 C.F.R. 550.58(a)(1)(vi)(B), and BOP Program State- 
ment 5162.04 (Oct. 9, 1997), which implement Section 
3621(e)(2)(B). The basis for that denial was 
that his current offense is a felony that involved the 
carrying, possession, or use of a firearm. The United 
States District Court for the District of South Dakota 
held that the Bureau’s interpretation of Section 
3621(e)(2)(B) is inconsistent with the language of the 
statute, and it ordered the Bureau to reconsider peti- 
tioner for early release in accordance with the court’s 

5 

opinion. J.A. 8-20. The court of appeals reversed and 
upheld the Bureau’s regulation and Program Statement 
5162.04 as an appropriate exercise of discretion under 
Section 3621(e)(2)(B). J.A. 23-28. 

1. a. In 1990, Congress amended Section 3621 of 
Title 18 of the United States Code to require that the 
Bureau “make available appropriate substance abuse 
treatment for each prisoner the Bureau determines has 
a treatable condition of substance addiction or abuse.” 
18 U.S.C. 3621(b). In 1994, Congress created an incen- 
tive for federal prisoners to participate in BOP’s resi- 
dential substance abuse treatment program.1 Congress 
amended Section 3621 of Title 18 of the United States 
Code to provide, inter alia, that BOP may reduce a 
prisoner’s sentence by up to one year if the prisoner is 
convicted of a nonviolent offense and successfully com- 
pletes BOP’s residential substance abuse treatment 
program. See Violent Crime Control and Law En- 
forcement Act of 1994, Pub. L. No. 103-322, Tit. III, 

1 BOP’s residential substance abuse treatment “is a course of 
individual and group activities provided by a team of drug abuse 
treatment specialists and the drug abuse treatment coordinator in 
a treatment unit set apart from the general prison population, last- 
ing a minimum of 500 hours over a six to twelve-month period. 
Inmates enrolled in a residential drug abuse treatment program 
shall be required to complete subsequent transitional services pro- 
gramming in a community-based program and/or in a Bureau 
institution.” 28 C.F.R. 550.56. 

6 

Subtit. T, § 32001, 108 Stat. 1896-1898 (1994 Crime 
Control Act). Section 3621(e) provides, in relevant 
part: 

SUBSTANCE ABUSE TREATMENT.— 

* * * * * 

(2) INCENTIVE FOR PRISONERS’ SUCCESS- 
FUL COMPLETION OF TREATMENT PROGRAM.— 

* * * * * 

(B) PERIOD OF CUSTODY.—The period a 
prisoner convicted of a nonviolent offense 
remains in custody after successfully com- 
pleting 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). 

b. In May 1995, the Bureau amended its rule on drug 
abuse treatment programs to implement Section 
3621(e)(2)(B). The amended rule allowed consideration 
of early release of prisoners who met the statutory 
prerequisites of successful completion of a treatment 
program and conviction of a nonviolent offense. 60 Fed. 
Reg. 27,692-27,695. The rule provided that a prisoner 
who completed a residential substance abuse treatment 
program may be eligible for early release unless, inter 
alia, the prisoner’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).2 Section 924(c)(3) defined “crime 

2 The regulation also excluded from early release inmates who 
were INS detainees, pretrial inmates, contractual boarders (for 

7 

of violence” to mean a felony that “has as an element 
the use, attempted use, or threatened use of physical 
force against the person or property of another,” or that 
“by its nature, involves a substantial risk that physical 
force against the person or property of another may 
be used in the course of committing the offense.” 
18 U.S.C. 924(c)(3). 

On July 24, 1995, the Bureau issued Program State- 
ment 5162.02,3 to implement provisions of the 1994 
Crime Control Act relating to the notification of release 
of prisoners, credit of “[g]ood [t]ime,” and substance 
abuse treatment programs, all of which made reference 
to “nonviolent offense” or “crime of violence.” Pet. Br. 
App. 7. The program statement defined “crime of vio- 
lence” as it was used in those statutory provisions and 
provided a framework to assist BOP employees in 
determining which criminal offenses fell within the 
definitions. Ibid. The program statement included as a 
crime of violence a drug trafficking conviction under 21 
U.S.C. 841 (except for 841(e)) or 846, if the inmate re- 
ceived a two-level increase in his offense level under 
Sentencing Guidelines §§ 2D1.1, 2D1.11, for possession 
of a dangerous weapon during commission of the of- 
fense. Pet. Br. App. 17-18, 20, 23. 

The courts of appeals reached differing conclusions 
on the validity of the Bureau’s 1995 regulation and 
Program Statement 5162.02. Two courts of appeals 
found the Bureau’s definition of a crime of violence to 

example, D.C., state, or military inmates), inmates who were eli- 
gible for parole, and inmates who had a prior federal or state con- 
viction for homicide, forcible rape, robbery, or aggravated assault. 
28 C.F.R. 550.58 (1995). 

3 Program Statement 5162.02 (July 24, 1995) is reproduced in 
the appendix to petitioner’s brief at Pet. Br. App. 7-28. 

8 

be reasonable. See Pelissero v. Thompson, 170 F.3d 
442, 445-446 (4th Cir. 1999) (BOP’s definition of crime of 
violence to include drug offenses that involved posses- 
sion of a firearm is permissible and reasonable interpre- 
tation of early release statute, although definition may 
not harmonize with judicial interpretations of “crime of 
violence” under Section 924(c)(3)); Venegas v. Henman, 
126 F.3d 760, 763 (5th Cir. 1997) (BOP reasonably inter- 
preted Section 3621(e)(2)(B) to allow it to determine 
what offenses are violent for purposes of that statute), 
cert. denied, 523 U.S. 1108 (1998). Other courts, how- 
ever, found that the Bureau’s definition conflicted with 
the statutory text. See Fristoe v. Thompson, 144 F.3d 
627, 631 (10th Cir. 1998) (BOP’s interpretation of “non- 
violent offense” violated the plain language of Section 
3621(e)(2)(B) which “does not permit resort to sen- 
tencing factors or sentencing enhancements attached to 
the nonviolent offense”); Byrd v. Hasty, 142 F.3d 1395, 
1398 (11th Cir. 1998) (“BOP exceeded its statutory 
authority when it categorically excluded from eligibility 
those inmates convicted of a nonviolent offense who 
received a sentencing enhancement for possession of a 
firearm.”); Bush v. Pitzer, 133 F.3d 455, 456-457 (7th 
Cir. 1997) (BOP’s Program Statement 5162.02 adopted 
“overbroad definition of a violent offense,” but BOP’s 
current regulation rationally denies early release to 
prisoners whose underlying conduct is violent or prone 
to violence); Martin v. Gerlinski, 133 F.3d 1076, 1079 
(8th Cir. 1998) (BOP’s “inclusion of sentencing enhance- 
ment factors in the determination of what is a ‘non- 
violent offense’ ” is in conflict with the plain language of 
the statute which uses the term “convicted”); Roussos 

v. Menifee, 122 F.3d 159, 161-164 (3d Cir. 1997) (BOP 
interpretation of “nonviolent offense” is in conflict with 
statute and regulation); Downey v. Crabtree, 100 F.3d 

9 

662, 668 (9th Cir. 1996) (rejecting BOP’s interpretation 
because statute “addresses the act of convicting, not 
sentencing or sentence-enhancement factors”). 

c. Effective October 9, 1997,4 the Bureau again re- 
vised its rule on drug abuse treatment programs “to 
demonstrate more clearly the discretion granted to 
the Director of the Bureau of Prisons under 18 U.S.C. 
3621(e) by listing the criteria that would preclude an 
inmate from receiving a sentence reduction as deter- 
mined by the Director of the Bureau of Prisons.” 62 
Fed. Reg. 53,690.5 

In the introduction to the rule, the 
Bureau Director noted that, because of differing 
holdings in the federal courts on the effect of BOP’s 
reliance on 18 U.S.C. 924(c)(3) to define the term “crime 
of violence,” some crimes were not clearly covered by 
BOP’s definition. 62 Fed. Reg. at 53,690. The rule 
“avoid[ed] this complication by using the discretion 
allotted to the Director of the Bureau of Prisons in 
granting a sentence reduction to exclude inmates whose 
current offense is a felony” that, inter alia, “involved 
the carrying, possession, or use of a firearm.” Ibid. 

As revised, BOP’s current regulation provides that 
an inmate may be eligible for early release if the inmate 
was sentenced for a nonviolent offense, is determined to 
have a substance abuse problem, and successfully com- 

4 The rule was filed for public inspection at the Federal Regis- 
ter on October 9, 1997, see 62 Fed. Reg. at 53,691, and was pub- 
lished on October 15, 1997. 

5 On May 17, 1996, BOP had amended its rule on drug abuse 
treatment programs to include a transitional treatment phase. 61 
Fed. Reg. 25,121-25,122. That rule, the May 1995 rule, and the 
October 1997 rule were all issued as interim rules with requests for 
comments, as BOP sought to avoid a gap in its rules for con- 
sideration of early release for qualified inmates. See 62 Fed. Reg. 
at 53,690. 

10 

pletes a residential substance abuse treatment pro- 
gram. 28 C.F.R. 550.58. The regulation further pro- 
vides, however, that “[a]s an exercise of the discretion 
vested in the Director of [BOP],” certain categories of 
inmates are not eligible for early release. 28 C.F.R. 
550.58(a). Those categories are not identified by incor- 
porating the definition of a crime of violence set forth in 
18 U.S.C. 924(c)(3) (1994 & Supp. IV 1998). Rather, the 
rule enumerates the categories. The categories include 
inmates whose current offense is a felony that involved 
carrying, possession, or use of a firearm (or other 
dangerous weapon or explosive), as well as inmates who 
committed a felony that falls into one of three other 
categories—two of which correspond to the provisions 
in 18 U.S.C. 924(c)(3) (1994 & Supp. IV 1998), and one 
that applies to inmates whose offense, “by its nature or 
conduct involves sexual abuse offenses committed upon 
children.” 28 C.F.R. 550.58(a)(vi)(A)-(D). The regula- 
tion also continues to exclude from eligibility for early 
release inmates in the other categories defined in the 
1995 regulation. See note 2, supra. 

On October 9, 1997, the Bureau promulgated Pro- 
gram Statement 5162.04 (Pet. Br. App. 29-54) to assist 
its employees in implementing various policies and pro- 
grams. The statement lists in Section 6 offenses that 
the Bureau categorizes as “crimes of violence as that 
term is used in various statutes,” and lists in Section 7 
“offenses that in the Director’s discretion shall preclude 
an inmate’s receiving certain Bureau program bene- 
fits.” Id. at 29. The Bureau explained that Section 7 
“lists offenses that are not categorized as crimes of 
violence, but would nevertheless preclude an inmate’s 
receiving certain Bureau program benefits at the 
Director’s discretion.” Id. at 30. It further explained 
that some BOP policies or programs, such as the one 

11 

governing inmate discipline and special housing units, 
require a determination that an inmate committed a 
crime of violence, but others, such as the one governing 
early release under 18 U.S.C. 3621(e)(2)(B), also allow 
denial of the benefit in the discretion of the BOP 
Director. Pet. Br. App. 30-31. The introductory portion 
of Section 7 of Program Statement 5162.04 provides 
that, 

[a]s an exercise of the discretion vested in the Di- 
rector, an inmate serving a sentence for an offense 
that falls under the provisions described below shall 
be precluded from receiving certain [BOP] program 
benefits. 

Inmates whose current offense is a felony that: 

* * * * * 

involved the carrying, possession, or use of a firearm 
or other dangerous weapon or explosives * * *. 

Id. at 40-41. 

Subsection 7(b) further specifies that certain offenses 
may or may not preclude benefits in the Director’s 
discretion, depending on whether the offense involved 
certain characteristics that reflect that the offense was 
committed with force. Pet. Br. App. 44. Program 
Statement 5162.04 indicates that the danger of violence 
is increased “when drug traffickers possess weapons” 
during the commission of a drug felony in violation of 21 
U.S.C. 841(a). Pet. Br. App. 44. Thus, under Section 
7(b) of Program Statement 5162.04, the BOP Director 
declines, as a matter of discretion, to grant early re- 
lease to an inmate who was convicted under 21 U.S.C. 
841 (except subsection (e)) and 846 (1994 & Supp. IV 
1998), if he received a two-level increase in his offense 

12 

level under Sentencing Guidelines § 2D1.1 for carrying, 
possession or use of a firearm. Pet. Br. App. 44, 48. See 
also Program Statement 5330.10, CN-03, ch. 6, at 1-2 
(Oct. 9, 1997) (implementing early release incentive in 
drug abuse treatment program in accordance with 28 
C.F.R. 550.58 as amended and Program Statement 
5162.04). 

2. On February 21, 1997, petitioner was convicted in 
the United States District Court for the Southern Dis- 
trict of Iowa of possession of methamphetamine with 
intent to distribute it, in violation of 21 U.S.C. 841(a)(1). 
He was sentenced to 72 months’ imprisonment. That 
sentence was based in part on a two-level enhancement 
of petitioner’s offense level under Sentencing Guide- 
lines § 2D1.1(b)(1) because petitioner possessed a fire- 
arm in connection with his offense. Presentence Report 
4, ¶ 7; id. at 6, ¶ 17; J.A. 9. 

We have been informed that, while serving his term 
of imprisonment, petitioner obtained a place on a wait- 
ing list to participate in a BOP residential drug abuse 
treatment program. On December 21, 1998, petitioner 
was notified that he qualified for participation in that 
program, but that it appeared that he was not pro- 
visionally eligible for early release upon completion of 
the program because his current offense is one that the 
BOP Director, in her discretion, has identified as an 
offense that excludes him from early release. J.A. 5-7. 
The currently scheduled date for petitioner’s release 
from prison, taking into account good conduct time, is 
June 2, 2002. Pet. 3. 

3. Petitioner filed a petition for a writ of habeas cor- 
pus under 28 U.S.C. 2241 in the United States District 
Court for the District of South Dakota, challenging the 
provisional denial of his early release. J.A. 8. On 

13 

January 6, 1999, the district court granted the petition 
for habeas relief. J.A. 8-20. 

The district court held that the Bureau “may not, in 
the first instance, exclude those convicted of nonviolent 
offenses from early release consideration.” J.A. 17. 
The court reasoned that the Bureau’s interpretation 
of 18 U.S.C. 3621(e)(2)(B), as reflected in its current 
regulation, 28 C.F.R. 550.58, and Program Statement 
5162.04, is inconsistent with the statutory language 
because it allows the Bureau “to rely upon factors other 
than whether the crime of conviction was nonviolent in 
making the initial determination as to whether a pris- 
oner is eligible to be considered for early release under 
section 3621(e)(2)(B).” J.A. 18. 

The district court recognized that Section 
3621(e)(2)(B) allows the Bureau to exercise discretion 
to determine who should be granted early release, but 
concluded that the Bureau cannot exercise its 
discretion to deny “recognition of eligibility” to inmates 
who are eligible for consideration under the statute. 
J.A. 19. The court declared that “[t]he exercise of 
discretion requires a careful consideration of each 
individual case.” Ibid. It concluded that the categorical 
denial of early release to “all cases within one general 
group without individual consideration” was not an 
exercise of discretion. Ibid. The court ordered BOP to 
reconsider petitioner for early release under Section 
3621(e)(2)(B) in accordance with its opinion. Ibid. 

4. The court of appeals reversed. J.A. 23-28.6 The 
court emphasized that Section 3621(e)(2)(B) “vests 
broad discretion in the BOP to determine which indi- 

6 The court of appeals consolidated cases brought by ten fed- 
eral prisoners that involved the same early-release issue. J.A. 23- 

24. 

14 

viduals, among the group of statutorily eligible inmates 
convicted of nonviolent offenses, are appropriate candi- 
dates for early release.” J.A. 25. The court observed 
that the statutory language is discretionary and does 
not mandate that BOP grant early release to any 
individual or group of prisoners. J.A. 26. Moreover, 
the court concluded that Section 3621(e)(2)(B) does not 
“mandate that the BOP exercise its discretion by 
making individual, rather than categorical, assessments 
of eligibility for inmates convicted of nonviolent 
offenses.” J.A. 26. It noted that, “[i]n fact, Congress 
expected the BOP to make early-release determina- 
tions ‘based on criteria to be established and uniformly 
applied.’ ” Ibid. (citing H.R. Rep. No. 320, 103d Cong., 
1st Sess. 6 (1993)). 

The court of appeals further reasoned that, to the 
extent that Congress left a gap in the statute for BOP 
to fill, deference is owed BOP’s interpretation under 
Chevron U.S.A. Inc. v. Natural Resources Defense 
Council, Inc., 467 U.S. 837, 843-845, 866 (1984), if the 
interpretation constitutes a permissible construction of 
the statute. J.A. 26. The court observed that BOP had 
exercised discretion to exclude from eligibility for early 
release certain categories of prisoners convicted of 
nonviolent offenses because “their underlying conduct 
indicates that they pose a serious risk to public safety.” 
J.A. 26-27. That decision, the court concluded, “repre- 
sent[ed] a manifestly permissible construction of the 
statute and an appropriate exercise of the BOP’s 
discretion.” J.A. 26-27. 

The court of appeals rejected the contention that 
BOP’s current regulation and Program Statement 
5162.04 are contrary to its earlier decision in Martin, 
133 F.3d at 1079-1081, which invalidated BOP’s 1995 
regulation and Program Statement 5162.02. The court 

15 

explained that, in Martin, it addressed only BOP’s 
attempt to interpret the statutory term “nonviolent 
offense.” The Martin court did not address whether 
“BOP may, as an exercise of its discretion, see 28 C.F.R. 
§ 550.58(a)(1), look to sentencing factors in deciding 
which individuals among statutorily eligible inmates 
are appropriate candidates for early release.” J.A. 27. 
Facing that issue, the court of appeals held that such an 
exercise of discretion is permissible. J.A. 27. 

SUMMARY OF ARGUMENT 

As an incentive to encourage prisoners with a sub- 
stance abuse problem to participate in drug treatment 
programs while in prison, Congress provided a limited 
opportunity for the Bureau of Prisons to reduce 
an inmate’s term of imprisonment under 18 U.S.C. 
3621(e)(2)(B). Congress also vested the Bureau with 
broad discretion to determine which of the prisoners 
who meet the statutory prerequisites of Section 
3621(e)(2)(B) (serving a sentence for a nonviolent 
offense and completion of a substance abuse program) 
should be granted early release. The statutory 
language is clear that a grant of early release is not 
mandatory for a prisoner who meets the statutory 
prerequisites. It provides that the prison term of a 
prisoner convicted of a nonviolent offense who success- 
fully completes a drug treatment program “may be 
reduced by the Bureau of Prisons,” by up to one year. 
18 U.S.C. 3621(e)(2)(B). The structure and history of 
the statute confirm the discretionary nature of the 
authority accorded the Bureau to grant early release. 

The Bureau validly exercised its discretion in a cate- 
gorical manner through promulgation of a regulation, 
28 C.F.R. 550.58(a)(1)(vi)(B), and Program Statement 
5162.04. Under those provisions, BOP denies early 

16 

release to prisoners, including petitioner, whose current 
offense is a felony that involved the carrying, posses- 
sion, or use of a firearm. That exercise of discretion 
does not contradict the statute. Congress limited early 
release to prisoners convicted of a nonviolent offense, 
but Congress did not intend that all prisoners convicted 
of a nonviolent offense must be found eligible for the 
incentive. Rather, Congress vested the Bureau with 
discretion to grant or deny early release to prisoners 
convicted of a nonviolent offense. BOP validly exer- 
cised discretion to deny early release to certain groups 
of prisoners on a categorical basis. That action is con- 
sistent with the statutory text and legislative purpose, 
as well as with well-established administrative law 
principles. See, e.g., American Hosp. Ass’n v. NLRB, 
499 U.S. 606, 612 (1991); INS v. Yang, 519 U.S. 26 
(1996). Moreover, the categorical denial of early release 
to the group involved here—prisoners whose felony 
conviction involved the carrying, possession, or use of 
firearm—constitutes a sound exercise of BOP’s dis- 
cretion, because of the increased potential of danger to 
public safety that such prisoners exhibit. 

17 

ARGUMENT 

THE DIRECTOR OF THE BUREAU OF PRISONS 
DID NOT ABUSE HER DISCRETION IN CATE- 
GORICALLY DENYING EARLY RELEASE UNDER 
18 U.S.C. 3621(e)(2)(B) TO PRISONERS, INCLUD- 
ING PETITIONER, WHOSE CURRENT OFFENSE 
IS A FELONY THAT INVOLVED THE CARRYING, 
POSSESSION, OR USE OF A FIREARM 

A. Section 3621(e)(2)(B) Commits To The Discretion 

Of The Bureau Of Prisons The Determination Of 

Which Prisoners Who Satisfy The Statutory Pre- 
requisites For Early Release Are Granted Such 

Release 

1. Section 3621(e)(2)(B) states that the period a 
prisoner convicted of a nonviolent offense remains in 
custody after his successful completion of a BOP sub- 
stance abuse treatment program “may be reduced by 
the Bureau of Prisons” by up to one year. By using the 
term “may,” Congress placed the ultimate decision 
whether to grant a prisoner early release in the dis- 
cretion of the Bureau. “The word ‘may,’ when used in a 
statute, usually implies some degree of discretion.” 
United States v. Rodgers, 461 U.S. 677, 706 (1983); 
Cortez Byrd Chips, Inc. v. Harbert Constr. Co., 120 
S. Ct. 1331, 1336 (2000) (citing Rodgers). Although that 
“common-sense principle of statutory construction” can 
be “defeated by indications of legislative intent to the 
contrary or by obvious inferences from the structure 
and purpose of the statute,” Rodgers, 461 U.S. at 706, 
that is not the case here. The structure, purpose, and 
history of Section 3621(e)(2)(B) all compel a reading of 
the statutory text that is consistent with the usual 
meaning of “may.” 

18 

The text of Section 3621(e)(2)(B) places two con- 
ditions on the Bureau’s authority to grant early release: 
(1) the prisoner must be serving a sentence for a 
nonviolent offense, and (2) he must successfully com- 
plete a substance abuse treatment program. Section 
3621(e)(2)(B) does not mandate that early release be 
granted to all prisoners who meet the statutory 
prerequisites. Nor does it place restrictions on the 
factors that may be considered by the Bureau in 
exercising its discretion whether to grant early release 
to prisoners who satisfy the statutory prerequisites. 

The discretionary nature of the authority accorded 
the Bureau under Section 3621(e)(2)(B) is evident when 
contrasted to the grant of authority under Section 
3621(e)(1). Section 3621(e)(1) governs the scope of 
BOP’s responsibility to provide a residential substance 
abuse treatment program to prisoners. That section 
states that BOP “shall, subject to the availability of 
appropriations, provide” a program to “all eligible pri- 
soners.” 18 U.S.C. 3621(e)(1). By using the term 
“shall,” Congress imposed a mandatory obligation on 
BOP under Section 3621(e)(1). If Congress had in- 
tended to impose a similar mandate on BOP under 
Section 3621(e)(2)(B), to require that early release 
be granted to all persons who committed nonviolent 
offenses, Congress would have used the term “shall” in 
Section 3621(e)(2)(B) as well. Congress’s decision to 
employ the two different terms in neighboring statu- 
tory provisions reflects a difference in the authority 
it thereby granted in the two instances. That inter- 
pretation accords with “the normal inference” that is 
drawn when the same statute uses both “may” and 
“shall”—“that each is used in its usual sense—the one 
act being permissive, the other mandatory.” Anderson 

v. Yungkau, 329 U.S. 482, 485 (1947); United States ex 

19 

rel. Siegel v. Thoman, 156 U.S. 353, 360 (1895) (use 
of “shall” in one provision of a statute and “may” in 
another “indicat[es] command in the one and permission 
in the other”). 

Moreover, by using the term “eligible prisoners” 
in Section 3621(e)(1), a term it expressly defined in 18 
U.S.C. 3621(e)(5)(B), Congress evidenced an intent 
to exert greater control over the scope of BOP’s obli- 
gation under Section 3621(e)(1) than under Section 
3621(e)(2)(B), where it specified only two statutory 
prerequisites, leaving to BOP’s discretion the actual de- 
cision whether to grant early release. Congress’s de- 
finition of “eligible prisoner” cannot support peti- 
tioner’s argument that Congress intended all prisoners 
who meet Section 3621(e)(2)(B)’s requirements to be 
“eligible for a sentence reduction” (Pet. Br. 18-19), be- 
cause the phrase “eligible prisoner” is nowhere used in 
Section 3621(e)(2)(B).7 

Section 3621(e)(2)(A) further confirms that Congress 
granted the Bureau broad discretionary authority 
under Section 3621(e)(2)(B). Section 3621(e)(2)(A) pro- 
vides that, “[g]enerally,” any prisoner who, “in the 
judgment of the Director of the Bureau of Prisons,” 
successfully completes a residential substance abuse 
treatment program “shall remain in the custody of the 

7 In addition, the definition of “eligible prisoner” in Section 
3621(e)(5)(B) is clearly related only to whether substance abuse 
treatment should be offered, not to whether early release is 
warranted. That section states: 

(B) the term “eligible prisoner” means a prisoner who is— 

(i) determined by the Bureau of Prisons to have a 
substance abuse problem; and 

(ii) willing to participate in a residential substance 
abuse treatment program * * *. 

20 

Bureau under such conditions as the Bureau deems 
appropriate.” When Section 3621(e)(2)(B) (the very 
next paragraph) is read against that backdrop, it is 
apparent that early release is not mandatory for pri- 
soners who meet the statutory prerequisites. Rather, it 
is left to the discretion of the Bureau. That is con- 
sistent with the grant to the Bureau of the broad 
authority to judge when a prisoner successfully com- 
pletes a substance abuse treatment program, and to 
determine the conditions under which a prisoner who 
completes a treatment program should thereafter be 
held in custody under Section 3621(e)(2)(A). Congress’s 
grant to the Bureau of such discretion also accords with 
the broad discretionary powers entrusted it for the 
overall supervision of federal prisoners. See 18 U.S.C. 
4042(a)(1) (BOP “shall * * * have charge of the 
management and regulation of all Federal penal and 
correctional institutions”); United States v. Wilson, 503 
U.S. 329, 335 (1992) (BOP “has the responsibility for 
administering the sentence” of federal offender); Hewitt 

v. Helms, 459 U.S. 460, 467 (1983) (prison officials have 
“broad administrative and discretionary authority over 
the institutions they manage”).8 

8 See also 18 U.S.C. 4081 (BOP discretion to classify and seg- 
regate prisoners); 18 U.S.C. 3621(b) (BOP discretion to transfer 
prisoner from one penal or correctional facility to another); 18 
U.S.C. 3622 (BOP discretion to temporarily release prisoner for 
specified reasons “consistent with the public interest”); Moody v. 
Daggett, 429 U.S. 78, 88 n.9 (1976) (federal prison officials have “full 
discretion” to control prisoner classification and eligibility for re- 
habilitative programs); United States v. Sotelo, 94 F.3d 1037, 1041 
(7th Cir. 1996) (district court has no authority to order restriction 
on persons with whom prisoner can communicate; court can only 
recommend that BOP impose such restriction); United States v. 
Williams, 65 F.3d 301, 307 (2d Cir. 1995) (sentencing court has no 
authority to order prisoner confined in particular facility or placed 

21 

2. The legislative background of Section 
3621(e)(2)(B) demonstrates Congress’s intent to vest 
the Bureau of Prisons with substantial discretion to 
determine which prisoners should be granted early 
release. The report of the House Judiciary Committee 
that accompanied the House bill (H.R. 3350, 103d Cong., 
1st Sess. (1993)) containing the original early release 
provision described the operation of the provision as 
follows: “In effect, this subparagraph authorizes the 
Bureau of Prisons to shorten by up to one year the 
prison term of a prisoner who has successfully 
completed a treatment program, based on criteria to be 
established and uniformly applied by the Bureau of 
Prisons.” H.R. Rep. No. 320, supra, at 6. During the 
floor debate in the House, the chairman and the ranking 
member of the Crime and Criminal Justice Sub- 
committee of the House Judiciary Committee empha- 
sized that release was not guaranteed by the statute, 
but is a decision that is left to the BOP. See 139 Cong. 
Rec. 27,255 (1993) (statement of Rep. Schumer) (“[T]his 
is not mandatory time off, it is an option, up to the 
prison authorities.”); id. at 27,250 (statement of Rep. 
Sensenbrenner) (“[T]hat is in the discretion of the 
Bureau of Prisons on whether or not the prisoner’s 
term ought to be reduce[d] upon completion of the 
program.”). 

During the floor debate in the Senate on a bill (S. 
1607, 103d Cong., 1st Sess. § 1304(d)(2)(1993)) that con- 
tained an early release provision that was identical in 

in particular treatment program; such decisions are within BOP’s 
sole discretion); Prows v. BOP, 981 F.2d 466, 469 (10th Cir. 1992) 
(BOP retains broad discretion to decide where prisoner may be 
confined during pre-release period), cert. denied, 510 U.S. 830 
(1993). 

22 

relevant respects to the original House version, some 
Senators voiced concern about the legislation allowing 
the early release of violent criminals. 139 Cong. Rec. at 
27,209 (statement of Sen. Hatch); id. at 27,221 (state- 
ment of Sen. Grassley). The Senate addressed that 
concern by amending the early release provision to 
limit the availability of the incentive to those prisoners 
who were convicted of nonviolent offenses. See id. at 
27,505, 27,588, 27,606, 32,286, 32,326. The Senate did 
not otherwise alter the broad grant of discretion to 
BOP. The amendment was drafted in a manner that 
prohibits BOP from releasing prisoners convicted of 
violent offenses, not in a manner that mandates the 
release of prisoners convicted of nonviolent offenses. 

When the House and Senate went to conference, the 
House agreed to the Senate’s amendment and the 
Conference Report stated that the House version was 
being amended “to limit the early release incentive for 
successful program completion to non-violent 
offenders.” H.R. Rep. No. 711, 103d Cong., 2d Sess. 381 
(1994); H.R. Rep. No. 694, 103d Cong., 2d Sess. 411 
(1994). The Conference Report also emphasized that the 
authority provided to the Bureau under the early 
release provision was “not to be construed as limiting 
any authority already possessed by the Bureau of 
Prisons with respect to the release of inmates.” H.R. 
Rep. No. 711, supra, at 381; H.R. Rep. No. 694, supra, 
at 411.9 

9 Because it is evident from Section 3621(e)(2)(B)’s text, struc- 
ture, and history that Congress conferred discretion on BOP to 
determine which prisoners should be granted early release, there 
is no basis for applying the rule of lenity as petitioner urges, 
Pet. Br. 32-33. See Muscarello v. United States, 524 U.S. 125, 138 
(1998); Reno v. Koray, 515 U.S. 50, 64-65 (1995). 

23 

B. The Bureau Of Prisons’ Categorical Denial Of Early 

Release Is Well Within The Broad Discretion Granted 

It By Congress 

As demonstrated above, the Bureau’s interpretation 
of Section 3621(e)(2)(B) as vesting it with discretion to 
make early release determinations for prisoners who 
meet the statutory prerequisites is compelled by the 
natural meaning of the statutory language read in the 
context of the statute as a whole. Nonetheless, peti- 
tioner essentially contends (Pet. Br. 17-18, 23-24, 29-30) 
that the Bureau cannot create categorical exclusions 
from early release and, in particular, that Congress 
intended to preclude the Bureau from categorically 
denying eligibility for early release based on 
characteristics of the offense, once it is found to be a 
“nonviolent offense.” 

10 Congress, however, did not 
address how the Bureau should exercise its discretion 
within the class of inmates who satisfy the statutory 
prerequisites for early release. Instead, it left BOP 
with the responsibility to “strike the balance at this 
level, thinking that those with great expertise and 
charged with responsibility for administering the 
provision would be in a better position to do so.” 
Chevron U.S.A. Inc. v. Natural Resources Defense 
Council, Inc., 467 U.S. 837, 865 (1984). The Bureau’s 
identification in its regulation, 28 C.F.R. 550.58, and 
Program Statement 5162.04, of certain categories of 
prisoners to whom it will not grant early release 

10 See Ward v. Booker, 202 F.3d 1249, 1256 (10th Cir.) (the fact 
that Section 3621(e)(2)(B) focuses on the nature of the prisoner’s 
conviction, i.e., “nonviolent offense,” precludes BOP from basing a 
categorical decision not to allow early release on the underlying 
facts of the offense that resulted in sentencing enhancement), 
petition for cert. pending, No. 00-18. 

24 

represents a considered judgment by the agency 
authorized by Congress to make such penological deter- 
minations. 

As the court of appeals concluded, deference is due 
the Bureau’s regulation, 28 C.F.R. 550.58, and Program 
Statement 5162.04, because those provisions constitute 
“an appropriate exercise of the BOP’s discretion,” J.A. 
26-27. See also Reno v. Koray, 515 U.S. 50, 61 (1995). 

11 

Congress’s decision affirmatively to bar early release 
for prisoners convicted of violent offenses does not 
imply that the Bureau must treat prisoners who car- 
ried, possessed, or used a firearm in the commission of a 
nonviolent felony the same as prisoners who did not. 
Rather, the statute leaves the Bureau discretion in that 
area, and it is a reasonable exercise of that discretion 
for the Bureau to determine that prisoners who carried, 
possessed, or used firearms in the commission of a 
felony, even a nonviolent offense, pose more of a danger 
to society than other prisoners, such that service of 
their entire prison term is warranted before release to 
the community. 

12 

11 Indeed, the Bureau implemented the statute & exercised its 
discretion in this case by denying petitioner early release (J.A. 

7)—a delegated agency action the Bureau is authorized to take 
under the statute. Cf. Martin v. Occupational Safety & Health 
Review Comm’n, 499 U.S. 144, 157 (1991) (deference is owed to an 
agency interpretation of its regulation that “assume[d] a form ex- 
pressly provided for by Congress”). 

12 Petitioner’s amici raise a claim (Nat’l Ass’n of Crim. Defense 
Lawyers et al. Amici Br. 19-24), not raised or passed upon below, 
or pressed by petitioner, that BOP’s regulation is invalid because it 
was promulgated without a notice and comment period before 
going into effect, as required under the Administrative Procedure 
Act (APA), 5 U.S.C. 553. Neither the notice nor advance comment 
period requirements apply, however, to substantive rules where 
there is good cause for noncompliance, to interpretive rules, or to 

25 

1. The court of appeals correctly held that Section 
3621(e)(2)(B) does not “mandate that the BOP exercise 

general statements of policies. 5 U.S.C. 553(b)(A) and (B), 
553(d)(2) and (3). The advance comment period also does not apply 
to substantive rules that grant or recognize an exemption or 
relieve a restriction. 5 U.S.C. 553(d)(1). The Bureau’s regulation 
falls within one or more of those categories. This Court has 
described “general statements of policy,” 5 U.S.C. 553(b)(A), 
553(d)(2), as “statements issued by an agency to advise the public 
prospectively of the manner in which the agency proposes to 
exercise a discretionary power.” Chrysler Corp. v. Brown, 441 
U.S. 281, 302 n.31 (1979) (quoting Attorney General’s Manual on 
the Administrative Procedure Act 30 n.3 (1947)); Lincoln v. Vigil, 
508 U.S. 182, 197 (1993) (same quotation). That term thus includes 
a regulation like 28 C.F.R. 550.58, in which the Bureau announces 
the manner in which it intends to exercise the discretion granted it 
by Congress under 18 U.S.C. 3621(e)(2)(B). Moreover, to the 
extent that the regulation constitutes a substantive rule, it “grants 
or recognizes an exemption or relieves a restriction,” 5 U.S.C. 
553(d)(1), because it guides the Bureau in granting early release to 
certain prisoners and thereby exempts or relieves those prisoners 
from service of their full terms of imprisonment. And there was 
good cause, see 5 U.S.C. 553(b)(B), 553(d)(3), for BOP to 
promulgate the regulation as an interim rule with an immediate 
effective date. As BOP explained, it published the change as an 
interim rule “in order to solicit public comment while continuing to 
provide consideration for early release to qualified inmates.” 62 
Fed. Reg. at 53,690. And whatever the merits of amici’s APA 
claim, it will not be of ongoing significance after promulgation of 
the Bureau’s final regulation. 

Of course, Program Statement 5162.04 is an internal agency 
guideline that was not subject to the notice and comment require- 
ment and would warrant deference, in any event, as a permissible 
implementation of the statute that it administers, under Koray, 
515 U.S. at 61, and Christensen v. Harris County, 120 S. Ct. 1655, 
1662-1663 (2000). See also Program Statement 5330.10, CN-03, ch. 
6, at 1-2 (Oct. 9, 1997) (implementing early release incentive in 
drug abuse treatment program in accordance with regulation and 
Program Statement 5162.04). 

26 

its discretion by making individual, rather than cate- 
gorical, assessments of eligibility for inmates convicted 
of nonviolent offenses.” J.A. 26. Petitioner contends 
(Pet. Br. 23, 29-30) that, because Congress categorically 
limited BOP’s early release discretion to prisoners con- 
victed of nonviolent offenses, BOP cannot exercise its 
discretion categorically to establish additional criteria 
for granting early release. But this Court has upheld 
analogous exercises of authority by agency officials 
charged with administering a statute. See INS v. Yang, 
519 U.S. 26 (1996) (statutory provision that established 
certain prerequisites for obtaining a waiver of de- 
portation did not limit the factors that the Attorney 
General could consider in determining who, among the 
class of aliens that satisfied those prerequisites, should 
be granted a waiver). Indeed, the legislative record is 
directly to the contrary—Congress intended that early 
release determinations be made “based on criteria to be 
established and uniformly applied” by the Bureau. 
H.R. Rep. No. 320, supra, at 6. Thus, Section 
3621(e)(2)(B) in no way precludes the Bureau from 
“particularizing statutory standards through the 
rulemaking process and barring at the threshold” those 
prisoners who do not “measure up to them.” Federal 
Power Comm’n v. Texaco, Inc., 377 U.S. 33, 39 (1964) 
(similar, in upholding authority of agency to set general 
standards notwithstanding Administrative Procedure 
Act’s requirement of a “hearing”). 

The Bureau’s consideration of petitioner’s case in a 
categorical manner under 28 C.F.R. 550.58(a) and Pro- 
gram Statement 5162.04 is consistent with well- 
recognized administrative law principles. The Court 
has held that, “even if a statutory scheme requires 
individualized determinations,” an agency “has the 
authority to rely on rulemaking to resolve certain 

27 

issues of general applicability unless Congress clearly 
expresses an intent to withhold that authority.” Ameri- 
can Hosp. Ass’n v. NLRB, 499 U.S. 606, 612 (1991); see 
Heckler v. Campbell, 461 U.S. 458, 467 (1983) (Social 
Security Act’s contemplation of individualized deter- 
minations of disability claims based on evidence ad- 
duced at a hearing does not bar Secretary “from relying 
on rulemaking to resolve certain classes of issues”); 
Federal Power Comm’n v. Texaco, Inc., 377 U.S. at 44 
(agency not required to repeatedly relitigate issues that 
may be fairly and efficiently established in single rule- 
making proceeding); United States v. Storer Broad. Co., 
351 U.S. 192, 205 (1956) (even where agency’s enabling 
statute requires it to hold hearing, agency may rely on 
rulemaking authority to determine issues that do not 
require case-by-case consideration); cf. Independent 
Fed’n of Flight Attendants v. Zipes, 491 U.S. 754, 760- 
761 (1989) (“law in general * * * does not interpret a 
grant of discretion to eliminate all ‘categorical rules’ ”). 
That Congress vested BOP with the discretion to grant 
early release “does not imply a mandate that this must 
be inevitably done by examining each case rather than 
by identifying groups.” Kenneth Culp Davis, 
Administrative Law Text 145 (3d ed. 1972) (quoting 
Fook Hong Mak v. INS, 435 F.2d 728, 730 (2d Cir. 
1970)). 

13 

13 The two courts of appeals that invalidated the Bureau’s 
current regulation and Program Statement 5162.04 relied on cir- 
cuit precedent that had held the Bureau’s original regulation and 
program statement to be invalid based on the conclusion that the 
Bureau had improperly defined a particular statutory term, “con- 
victed of a nonviolent offense.” See Ward, 202 F.3d at 1254 (rely- 
ing on Fristoe v. Thompson, 144 F.3d 627 (10th Cir. 1998)); and 
Kilpatrick v. Houston, 197 F.3d 1134 (11th Cir.) (per curiam), aff ’g 
36 F. Supp. 2d 1328 (N.D. Fla. 1999) (relying on Byrd v. Hasty, 142 

28 

2. The Bureau of Prisons permissibly construed its 
discretionary authority under Section 3621(e)(2)(B) to 
allow it to determine that prisoners convicted of a 
felony that involved the carrying, possession, or use of a 
firearm or other dangerous weapon pose a sufficient 
risk of danger to public safety that they should be 
denied early release. The fact that Congress responded 
to concerns about the release of prisoners convicted 
of violent offenses by drafting the statute to bar their 
release does not preclude BOP from considering a pri- 
soner’s potential dangerousness, as reflected by his 
prior involvement with a firearm during the com- 
mission of a felony, as a factor in determining whether 
to grant early release. The Court made clear in INS v. 
Yang that where Congress confers discretionary 
authority on a decisionmaker to grant a benefit to per- 
sons who satisfy certain statutory prerequisites, the 
decisionmaker is not precluded from considering factors 
that are connected to the statutory prerequisites, so 
long as such consideration does not make a nullity of the 
statute. 519 U.S. at 30-31. The Bureau’s consideration 
of whether a prisoner’s conviction involved the carry- 
ing, possession, or use of a firearm certainly does not 
render Section 3621(e)(2)(B) a nullity; many prisoners 
may satisfy both the statutory prerequisites and the 
regulatory criteria for early release. “In Fiscal Year 

F.3d 1395 (11th Cir. 1998)), petition for cert. pending, No. 99-2008. 
The court of appeals correctly recognized (J.A. 27) that its own 
circuit precedent striking down the original regulation, Martin v. 
Gerlinski, 133 F.3d 1076 (8th Cir. 1998), was limited to the 
Bureau’s prior interpretation of “convicted of a nonviolent offense” 
and, therefore, was not of relevance to the present case which 
relies on the discretion provided to the Bureau. See also Bowen v. 
Hood, 202 F.3d 1211, 1219-1220 (9th Cir.), petitions for cert. 
pending, Nos. 99-10159 & 99-10221. 

29 

1999, 2,633 inmates were released early pursuant to 
18 U.S.C. § 3621(e). Since the Bureau implemented this 
provision, a total of 6,559 inmates have been granted a 
reduction in their term of imprisonment.” Bureau of 
Prisons, Substance Abuse Treatment Programs in the 
Federal Bureau of Prisons, Report to Congress 12 (Jan. 
2000). Moreover, the Bureau’s early release regulation, 
28 C.F.R. 550.58(a)(1)(vi)(B), and Program Statement 
5162.04, in no way bar a prisoner like petitioner from 
participating in the Bureau’s residential substance 
abuse treatment program. They only deny one type of 
incentive to certain prisoners in a categorical manner, 
while leaving them eligible for other types of incen- 
tives. See 28 C.F.R. 550.57(a). 

14 

Denial of early release to prisoners like petitioner is 
not inconsistent with congressional intent. Although 
evidence before Congress indicated that an early re- 
lease incentive would encourage prisoners to parti- 
cipate in highly effective substance abuse treatment 
programs (see Pet. Br. 24-29), Congress chose not to 
mandate that the incentive be granted to all prisoners 
convicted of a nonviolent offense. See pages 17-22, 
supra. Rather, it charged BOP with deciding whether 
to grant such prisoners early release. BOP has fulfilled 
that responsibility in a reasonable manner, consistent 
with its grant of discretion, and in light of its long- 
standing expertise and experience in protecting the 
public safety through its classification of prisoners and 

14 The other incentives include “[l]imited financial awards, 
based upon the inmate’s achievement/completion of program 
phases”; “[c]onsideration for the maximum period of time (cur- 
rently 180 days) in a Community Corrections Center”; and “[l]ocal 
institution incentives such as preferred living quarters or special 
recognition privileges,” 28 C.F.R. 550.57(a)(1)-(3). 

30 

determination of their appropriate custody status. See 
pages 20-21, supra. In addition to the category at issue 
here (felony involving firearm possession), BOP has 
established categories that deny early release to, inter 
alia, inmates “who have a prior felony or misdemeanor 
conviction for homicide, forcible rape, robbery, or 
aggravated assault, or child sexual abuse offenses,” 28 
C.F.R. 550.58(a)(1)(iv), and inmates whose current 
offense is a felony “[t]hat by its nature or conduct in- 
volves sexual abuse offenses committed upon children,” 
28 C.F.R. 550.58(a)(1)(vi)(D). Those categories 
rationally ensure that prisoners whose backgrounds 
suggest that they pose a particular risk to the public, 
notwithstanding their current conviction of a non- 
violent offense, serve their full prison terms. By 
promulgating these standards as categorical rules, BOP 
brings to early release determinations, which are 
made by a large number of BOP employees at facilities 
located throughout the country, a predictability and 
uniformity that would otherwise be lacking. See H.R. 
Rep. No. 320, supra, at 6 (“criteria to be established and 
uniformly applied” by BOP). 

31 

CONCLUSION 

The judgment of the court of appeals should be 
affirmed. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

JAMES K. ROBINSON 

Assistant Attorney General 

MICHAEL R. DREEBEN 

Deputy Solicitor General 

BETH S. BRINKMANN 

Assistant to the Solicitor 

General 

THOMAS M. GANNON 

Attorney 

AUGUST 2000