Shane Abbott v. Bop , 771 F.3d 512 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHANE AARON ABBOTT, No. 12-35801
Petitioner-Appellant,
D.C. No.
v. 3:11-cv-01047-
MO
FEDERAL BUREAU OF PRISONS; J.E.
THOMAS, Warden,
Respondents-Appellees. OPINION
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted
August 26, 2014—Seattle, Washington
Filed October 27, 2014
Before: Kim McLane Wardlaw, Ronald M. Gould,
and Morgan Christen, Circuit Judges.
Opinion by Judge Gould
2 ABBOTT V. FEDERAL BUREAU OF PRISONS
SUMMARY*
Habeas Corpus
The panel dismissed renewed claims, and, as to new
contentions raised after the district court’s decision on limited
remand, reversed the district court and remanded a case in
which Shane Abbott filed a petition for a writ of habeas
corpus seeking to compel the Bureau of Prisons (BOP) to
allow him into the Residential Drug Abuse Program (RDAP).
The panel held that Abbott’s claims regarding the legality
of the BOP’s 2009 RDAP rule are rendered moot by the
BOP’s intervening decision to admit him to the RDAP.
Because Abbott made a categorical challenge to the
BOP’s interpretation of its own regulation, which is not
foreclosed from review, the panel held that the district court
erred when it held, on limited remand, that it lacked
jurisdiction to review Abbott’s challenge to his denial of
eligibility to receive RDAP’s early release incentive of a
sentence reduction.
The panel held that the BOP’s determination that a
Montana unlawful restraint conviction was equivalent to
“kidnaping” under 28 U.S.C. § 550.55(b)(4), barring
eligibility for early release under 18 U.S.C. § 3621(e)(2)(B),
is invalid. The panel explained that the Montana unlawful
restraint elements are not equivalent to kidnaping, and that
the BOP’s conflation of the two was arbitrary and capricious.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ABBOTT V. FEDERAL BUREAU OF PRISONS 3
The panel remanded for the district court to consider
whether modification of Abbott’s term of supervised release
is now appropriate in light of the BOP’s prior unlawful denial
of Abbott’s eligibility for sentence reduction.
COUNSEL
Stephen R. Sady (argued), Chief Deputy Federal Public
Defender, Portland Oregon, for Petitioner-Appellant.
S. Amanda Marshall, United States Attorney, Kelly A.
Zusman, Appellate Chief, Natalie K. Wight (argued),
Assistant United States Attorney, Portland, Oregon, for
Respondents-Appellees.
OPINION
GOULD, Circuit Judge:
In 2011, Petitioner Shane Abbott (“Abbott”) sought
acceptance into the Residential Drug Abuse Program
(“RDAP”) run by the Bureau of Prisons (“BOP”) and was
denied, based on a 2009 BOP rule that precluded prisoners
with outstanding warrants from RDAP eligibility. He filed a
petition for a writ of habeas corpus seeking to compel the
BOP to allow him into RDAP, which was denied by the
district court. He appealed that decision in 2012.
While Abbott’s 2012 appeal was pending, the BOP
changed its mind about proper procedure and changed its
course. The BOP discovered internal guidance that, along
with the quashing of one of Abbott’s warrants, resulted in a
4 ABBOTT V. FEDERAL BUREAU OF PRISONS
new review pursuant to which the BOP determined that
Abbott was eligible to participate in RDAP. But the BOP
also concluded that Abbott was not eligible to receive
RDAP’s early release incentive of a sentence reduction,
because of his prior Montana conviction for unlawful
restraint. The BOP determined that the Montana unlawful
restraint conviction was equivalent to “kidnaping,” barring
his eligibility under 28 C.F.R. § 550.55(b)(4).
We remanded this case to the district court for the limited
purpose of determining Abbott’s eligibility for RDAP’s
sentence reduction. Upon remand, the district court held that
it lacked jurisdiction to review Abbott’s challenge to his
denial of eligibility for sentence reduction on the ground that
the BOP’s decision was an individualized early release
determination, as opposed to a categorical challenge.
Abbott now appeals that decision, renewing the
arguments presented in his original habeas petition and
raising two additional contentions: 1) that the district court
erred in holding that it lacked jurisdiction; and 2) that the
BOP’s interpretation of 28 C.F.R. § 550.55(b)(4) to preclude
his eligibility for a sentence reduction was arbitrary and
capricious.
The claims presented in Abbott’s initial habeas petition
regarding the legality of the BOP’s 2009 RDAP eligibility
rule, renewed in this appeal, are rendered moot by the BOP’s
decision to admit him to the RDAP program. Abbott has
received all the relief sought in his original petition: RDAP
participation, eligibility for placement in a halfway house
program, and consideration for early release. Although he
was unsuccessful in getting a sentence reduction, he was
accepted as a participant in RDAP and was not precluded
ABBOTT V. FEDERAL BUREAU OF PRISONS 5
from consideration of such eligibility. Abbott retains no
“legally cognizable interest for which the courts can grant a
remedy.” Alaska Ctr. for the Env’t v. U.S. Forest Serv.,
189 F.3d 851, 854 (9th Cir. 1999). Therefore, Abbott’s initial
and renewed appeal as to the BOP’s 2009 RDAP eligibility
rule is dismissed as moot.
Turning to Abbott’s appeal of the district court’s decision
on limited remand, the court erred when it held that it lacked
jurisdiction to review Abbott’s challenge. It is true that the
BOP has broad, unreviewable discretion over individualized
decisions regarding RDAP eligibility. See Reeb v. Thomas,
636 F.3d 1224, 1227–28 (9th Cir. 2011). But here Abbott
makes a categorical challenge to the BOP’s interpretation of
its own regulation, which is not foreclosed from review. Cf.
Close v. Thomas, 653 F.3d 970, 974 (9th Cir. 2011) (“These
petitions allege that the ‘BOP action is contrary to . . . its
statutory authority.’ Therefore, the petitions are within [our]
jurisdiction.” (citation omitted)).
We next and finally address whether Abbott’s prior
conviction for unlawful restraint, as codified in Montana
Code Annotated § 45-5-301, is equivalent to kidnaping under
28 C.F.R. § 550.55(b)(4). We conclude that the Montana
unlawful restraint elements are not equivalent to kidnaping.
The BOP’s conflation of the two was arbitrary and capricious.
We have previously explained that the offenses listed in
28 C.F.R. § 550.55(b)(4) (homicide, forcible rape, robbery,
aggravated assault, arson, kidnaping, and sexual abuse
offenses committed on minors) are an appropriate bar to early
release because their commission “rationally reflects the view
that such inmates displayed readiness to endanger the public.”
Peck v. Thomas, 697 F.3d 767, 773 (9th Cir. 2012). Montana
law, however, does not view unlawful restraint similarly,
6 ABBOTT V. FEDERAL BUREAU OF PRISONS
describing the offense as “the lowest form of interference
with the liberty of another.” Mont. Code Ann. § 45-5-301
(Annotator’s Note to § 45-5-301). Further, unlawful restraint
is a lesser included offense of kidnapping under Montana
law. See State v. Brummer, 287 Mont. 168, 177 (1998). The
BOP has not shown a reasonable basis to extend a regulation
involving a set of serious and violent crimes, all of which
show “readiness to endanger the public,” Peck, 697 F.3d at
773, to unlawful restraint in violation of Montana law, which
we consider to be a crime less serious and less violent than
those listed. We hold that the BOP’s interpretive action is
invalid. See Arrington v. Daniels, 516 F.3d 1106, 1112 (9th
Cir. 2008).
We conclude that Abbott was eligible for early release
under 18 U.S.C. § 3621(e)(2)(B). Abbott has already been
released from prison and can no longer benefit from a
sentence reduction, but he still could benefit from a reduction
in his term of supervised release. See Reynolds v. Thomas,
603 F.3d 1144, 1148 (9th Cir. 2010), abrogated on other
grounds by Sester v. United States, 132 S. Ct. 1463 (2012).
We think it is legally permissible and serves the ends of
justice and fairness for us to remand to the district court for
it to consider in the first instance whether modification of
Abbott’s term of supervised release is now appropriate in
light of the BOP’s prior unlawful denial of Abbott’s
eligibility for sentence reduction.
DISMISSED, REVERSED AND REMANDED with
instructions.