Hobbs v. Rios , 215 F. App'x 773 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 7, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
SAJCH A HOBB S,
Petitioner-A ppellant, No. 06-1384
v. D. Colorado
HECTOR A. RIOS (W arden), (D.C. No. 06-CV-1239-ZLW )
Respondent-Appellee.
OR D ER AND JUDGM ENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
After examining Appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G ).
The court therefore orders the case submitted without oral argument.
Sajcha Hobbs, proceeding pro se, appeals the district court’s denial of the
habeas corpus petition he filed pursuant to 28 U.S.C. § 2241. Hobbs has provided
documentation he has been approved to participate in the Bureau of Prisons’
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
(“BOP”) Residential Drug and Alcohol Program (“RDAP”) but was advised he
would not be eligible for a sentence reduction under 18 U.S.C. § 3621(e) even if
he successfully completed the program. Hobbs challenges the BOP’s
determination. 1 Exercising jurisdiction under 18 U.S.C. § 1291, we affirm the
district court’s denial of relief.
Pursuant to 18 U.S.C. § 3621(e), the BOP has discretion to reduce a federal
inmate’s sentence up to one year upon the successful completion of an RDAP.
Section 3621(e)(2)(B) denies the sentence reduction to inmates convicted of
violent offenses. In addition, the BOP has promulgated a regulation categorically
denying the sentence reduction to inmates whose current offense is a felony
involving, inter alia, the “carrying, possession, or use of a firearm or other
dangerous w eapon.” 28 C.F.R. § 550.58(a)(1)(vi)(B). This regulation was upheld
by the Supreme Court in Lopez v. Davis, 531 U.S. 230, 244 (2001).
In his § 2241 petition, Hobbs states he was convicted of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He repeats this
assertion in his appellate brief. He then argues he is eligible for the § 3621(e)
sentence reduction because (1) his conviction is nonviolent and (2) his offense
conduct did not involve the use or possession of a firearm during the commission
1
Hobbs filed an opening appellate brief on October 11, 2006. Thereafter,
he filed a motion asking this court to strike his brief and permit him to refile it.
Hobbs’ second brief was filed on October 24, 2006. W e grant Hobbs’ motion
and consider only the arguments made in the appellate brief filed on October 24.
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of a separate felony, and thus Lopez does not apply. Accordingly, he asserts the
BOP’s categorical denial of the sentence reduction was error.
Hobbs’ assertion he was convicted of being a felon in possession of a
firearm is incorrect. 2 The judgment Hobbs attached to his § 2241 petition show s
he was, instead, convicted of unlawful possession of a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. § 924(c). Accordingly, even
under Hobbs’ erroneous reading of Lopez, 3 he is ineligible for the sentence
reduction because his conviction involved the carrying of a firearm during the
comm ission of a separate felony offense. 4
2
A large number of other inmates currently incarcerated at the federal penal
institution in Florence, Colorado have filed appeals raising the same arguments
Hobbs raises in this appeal. W e assume the error in H obbs’ appellate brief arose
because he and these other appellants, some of whom were in fact convicted of
being felons in possession of firearms, have filed what appear to be photocopies
of the same appellate brief.
3
M artin v. Rios, 472 F.3d 1206, 1207 (10th Cir. 2007) (“[Petitioner]
misreads Lopez insofar as he claims that it does not apply when [his] offense
involved mere possession of a firearm.”).
4
Any reliance Hobbs places on Ward v. Booker, 202 F.3d 1249, 1256 (10th
Cir. 2000) is misplaced because Ward was abrogated by Lopez. Lopez v. Davis,
531 U.S. 230, 238, 244 (2001) (specifically referencing Ward and holding to the
contrary that the BOP may categorically deny a sentence reduction to inmates
whose current offense is a felony involving a firearm).
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Upon de novo review of H obbs’ appellate brief, the district court’s order,
and the entire record on appeal, this court affirms the denial of Hobbs’ § 2241
petition. Hobbs’ motion to proceed in forma pauperis on appeal is denied.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
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