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Ninth Circuit: BOP Improperly Denied RDAP Sentence Reduction; Remedy may be Reduced Supervised Release Term

Ninth Circuit: BOP Improperly Denied RDAP Sentence Reduction; Remedy may be Reduced Supervised Release Term

by Mark Wilson

The Ninth Circuit Court of Appeals held on October 27, 2014 that the federal Bureau of Prisons (BOP) had improperly denied a prisoner early release eligibility, and remanded the case for a potential reduction of the prisoner’s supervised release term.

In 2011, federal prisoner Shane Abbott applied for the Residential Drug Abuse Program (RDAP). Citing a 2009 rule denying RDAP eligibility to prisoners with outstanding warrants, BOP officials denied Abbott’s request. He then filed a petition for a writ of habeas corpus, seeking to compel the BOP to grant him RDAP eligibility.

An Oregon federal district court dismissed Abbott’s petition. While his appeal was pending, the BOP reversed its decision; after one of Abbott’s warrants was quashed, the BOP found that he was eligible for RDAP participation. Concluding that a prior Montana unlawful restraint conviction was equivalent to “kidnapping” under 28 C.F.R. § 550.55(b)(4), however, BOP officials determined that he was not eligible for RDAP’s early release incentive.

The Ninth Circuit instructed the district court to consider whether the BOP had properly denied Abbott an RDAP sentence reduction. Instead, the district court held that “it lacked jurisdiction to review Abbott’s challenge ... on the ground that the BOP’s decision was an individualized early release determination, as opposed to a categorical challenge.”

The Ninth Circuit reversed, finding that “Abbott makes a categorical challenge to the BOP’s interpretation of its own regulation, which is not foreclosed from review.”

The appellate court noted it had previously found that § 550.55(b)(4) appropriately bars early release for homicide, forcible rape, robbery, aggravated assault, arson, kidnapping and sexual abuse offenses against children, “because their commission ‘rationally reflects the view that such inmates displayed readiness to endanger the public,’” citing Peck v. Thomas, 697 F.3d 767 (9th Cir. 2012).

The Court of Appeals held, however, that the BOP’s conflation of a Montana unlawful restraint conviction with kidnapping under § 550.55(b)(4) was arbitrary and capricious.

Noting that Montana law describes unlawful restraint as “the lowest form of interference with the liberty of another,” the Court recognized that that crime is actually a lesser included offense of kidnapping. Therefore, the Ninth Circuit concluded that the “BOP’s interpretive action is invalid” and “Abbott was eligible for early release under 18 U.S.C. § 3621(e)(2)(B).”

Although Abbott could no longer benefit from a sentence reduction because he had since been released, the Court of Appeals remanded the case. “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,” the appellate court wrote. See: Abbott v. Bureau of Prisons, 771 F.3d 512 (9th Cir. 2014).


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Related legal case

Abbott v. Bureau of Prisons