Iverson v. Rios , 215 F. App'x 778 ( 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
B RY A N J. IV ER SO N ,
Petitioner-A ppellant, No. 06-1389
v. D. Colorado
HECTOR A. RIOS (W arden), (D.C. No. 06-CV-1223-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.
Bryan Iverson, proceeding pro se, appeals the district court’s denial of the
habeas corpus petition he filed pursuant to 28 U.S.C. § 2241. Iverson has
provided documentation he has been approved to participate in the Bureau of
*
This order and judgment is not binding precedent except under the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.
Prisons’ (“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. Iverson challenges the
BOP’s determination. 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).
Iverson pleaded guilty to a charge of possession of a firearm by a
prohibited person, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Iverson
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 of a separate felony, and thus
Lopez does not apply. Accordingly, he asserts the BOP’s categorical denial of the
sentence reduction was error.
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In M artin v. Rios, this court considered and rejected the argument Iverson
now presents. 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.”). Consequently, we affirm the denial of Iverson’s §
2241 petition.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
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