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.
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 ...