UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
August 25, 2009
JERRY CRICKON, PETITIONER-APPELLANT,
J.E. THOMAS, RESPONDENT-APPELLEE.
Appeal from the United States District Court for the District of Oregon D. C. No. 07-CV-01180-HA Ancer L. Haggerty, District Judge, Presiding.
The opinion of the court was delivered by: Rawlinson, Circuit Judge
Argued and Submitted February 2, 2009 -- Portland, Oregon
Before: Richard A. Paez and Johnnie B. Rawlinson, Circuit Judges, and Bruce S. Jenkins,*fn1 District Judge.
Appellant Jerry Crickon (Crickon) challenges regulations promulgated by the Bureau of Prisons (BOP) that categorically 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.
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 program," H. R. Rep. No. 103-320, p.5 (Nov. 3, 1993), Congress amended 18 U.S.C. § 3621 to include incentives for participation. 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 successfully completes the program. 18 U.S.C. § 3621(e)(2)(B).*fn2
In 1995, the BOP promulgated its initial interim rule implementing 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.*fn3 See Change Notice 01 to 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 expansion. 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).*fn4
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.
Since promulgation of the original BOP rule, we have affirmed the BOP's authority to exercise its discretion to categorically 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 categorically 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 promulgation of § 550.58(a)(1)(vi)(B) (2000) violated the Administrative 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 possess with the intent to distribute methamphetamine in violation 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 Program (RDAP). However, in the same notice, Crickon was informed that he was not eligible for the early release incentive offered in § 3621(e). The sole reason provided for Crickon'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 district 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 "arbitrary, 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).
A. Validity of the BOP Regulation
The APA provides that a "reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion 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, presuming 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 quotation 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." Arrington, 516 F.3d at 1112 (citation omitted). However, "[e]ven when an agency explains its decision with less than ideal clarity, 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 prisoners with "stale" prior convictions from early release eligibility and that the final rule is therefore invalid under the APA.*fn5
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 outcome 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 categorically 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 categorical exclusion rule. See id. at 1112-13. We reversed, concluding that the first rationale identified by the district court - public safety - was "entirely absent from the administrative record." See id. at 1113. We noted that the second rationale - 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 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 exercise 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 concluded in Arrington that this rationale, absent from the administrative record, did not support the validity of the BOP regulation under the APA. See id. at 1115-16.
 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 categorically 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 above cited categories of crimes, which are reported under the FBI Violent Crime Index, as the sole determinant of violence in the criminal history.
60 Fed. Reg. at 27692.
 Beyond explaining that it decided upon the four identified categories of convictions because of the variation in violence 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 emphasized that any adult conviction for homicide, forcible rape, robbery, or aggravated assault would result in categorical exclusion.*fn6 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 28 C.F.R. § 550.58 (2000),*fn7 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 questioned the use of prior convictions. One comment argued "that the regulations unduly restricted eligibility for a remedial program 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 pertain to the conveyance of a separate incentive at our discretion." 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 predictive of an inmate's propensity to engage in further violence, 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 programs by codifying the early release incentive. See H.R. Rep. 103-320, p. 5.
 Despite issuing three interim rules and receiving comments 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 discretion." 516 F.3d at 1114. This is precisely what the BOP failed to do.
 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 indication of the basis for its decision. It did not reference pertinent research studies, or case reviews. It did not describe the process 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 underlying 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[,]" the APA " will not permit" us to accept the BOP's decision. (citation omitted).
Additionally, although the BOP provided a limited explanation 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 Presentence Investigation Report (PSI). The PSI is a court document and is subject to review by the defendant and defense counsel. In general, information in the PSI about prior convictions may be limited 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 Criminal History Category, we believe that we are acting in accordance with Congressional intent when we use the listed prior conviction as a disqualifying criterion.
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 defendant's criminal history in a presentence report do not limit the broad discretion afforded the BOP in setting eligibility standards 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, 588 F.2d 1256, 1265 (9th Cir. 1978), as amended (recognizing that any prior criminal history, regardless of its relation to the current criminal conviction, must be included in the presentence report under Rule 32).
 More importantly, the BOP's expressed belief that it was "acting in accordance with Congressional intent" is difficult 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 advisory 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 consider the factors delineated in 18 U.S.C. § 3553(a),*fn8 as required prior to imposing a sentence. See United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc) (explaining 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.*fn9
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 disapprove the agency's action.").
 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 Congress'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 contention 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 language. 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 disqualifying 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 administrative record") (citation, alteration and internal quotation marks omitted).
 Because the BOP failed to articulate in the administrative record the rationale underlying its decision to adopt a categorical 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.*fn10
See Arrington, 516 F.3d at 1114 (requiring articulation of agency rationale).
B. Relief Available to Crickon*fn11
 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 invalidating an agency rule is to reinstate the rule previously in force." Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005) (citation 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.*fn12 See id.
 Although the BOP is afforded wide discretion in promulgating 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 contemporaneous rationale for the BOP's promulgation of a rule categorically excluding inmates with certain prior convictions from early release eligibility. The government's arguments on 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 voluntary manslaughter.
REVERSED AND REMANDED.