*District Judge of the Southern District of Texas, sitting

by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-50117

 

MICHAEL A. WARREN,

Petitioner-Appellant,

versus

R.D. MILES, Warden of Federal Correction

Institute at Bastrop, Texas,

Respondent-Appellee.

--------------------

Appeal from the United States District Court

for the Western District of Texas

--------------------

October 13, 2000

Before BARKSDALE and BENAVIDES, Circuit Judges, and VELA*,

District Judge. 

BENAVIDES, Circuit Judge:

Michael A. Warren appeals the dismissal of his habeas corpus

petition filed in the district court for the Western District of

Texas pursuant to 28 U.S.C. § 2241(c)(3). Warren maintains that

the Federal Bureau of Prisons (BOP) violated the Constitution’s

prohibition of ex post facto legislation by applying its

regulations to him retroactively, thereby increasing the

punishment for his offense. He also argues that the BOP abused

its discretion under 28 U.S.C. § 3621(e) by promulgating

regulations that effectively render all prisoners who receive a
2

sentence enhancement for possession of a dangerous weapon

ineligible for early release following completion of a

residential Drug Abuse Program (DAP). Finally, Warren contends

that the district court violated his due process rights in

failing to make de novo findings of fact with respect to the

preliminary sentencing report that served as the foundation for

his sentence enhancement. We ultimately find no merit in

Warren’s arguments and, therefore, AFFIRM the ruling of the

district court.

FACTUAL AND PROCEDURAL BACKGROUND

In September 1995, Warren pled guilty to conspiracy to

distribute and distribution of cocaine base and heroin as defined

in 21 U.S.C. § 846; he was sentenced to 72 months of

imprisonment, followed by five years of supervised release. The

district court enhanced Warren’s sentence by two points pursuant

to section 2D1.1(b)(1) of the Sentencing Guidelines based on

information in Warren’s preliminary sentencing report that he had

access to a dangerous weapon during the course of the conspiracy.

In February 1996, Warren enrolled in a DAP with the approval

of officials at the federal prison in Bastrop. Section 3621(e)

allows prisoners convicted of “nonviolent” offenses who complete

a DAP to apply for sentence reductions of up to one year at the

discretion of the BOP director. See 18 U.S.C. § 3621(e)(2)(b). 

On February 8, 1996, prison officials advised Warren that he was

ineligible for early release under section 3621 because of his

sentence enhancement. In that same month, Warren filed a motion
1 On November 11, 1999, Warren filed a motion with this

court seeking a writ of mandamus instructing the district court

to grant summary judgment. This court denied Warren’s motion

without prejudice, instructing him to re-file in 60 days if the

district court had not replied to his motion.

3

to vacate his sentence, specifically the enhancement, under 28

U.S.C. § 2255. The district court for the Northern District of

Texas denied that motion, adopting a magistrate judge’s finding

of sufficient evidence to support the two-point enhancement.

After successfully completing the DAP in December 1996,

Warren requested reconsideration for early release pursuant to

section 3621(e) of title 28. Because Warren’s sentence had been

enhanced for possession of a weapon, the BOP again determined

that he had committed a “crime of violence” and was thus

ineligible for early release under section 3621(e). 

In March 1999, Warren filed this habeas corpus petition pro

se in the district court for the Western District of Texas. 

After the Government replied to Warren’s petition, Warren moved

for summary judgment on the pleadings on August 19, 1999.1 On

January 14, 2000, the magistrate judge filed a Report and

Recommendation recommending that the district court deny Warren’s

petition. Warren objected to the report’s findings in a timely

manner. On January 23, 2000, the district court issued a Final

Judgment and Order adopting the magistrate’s report and denying

Warren’s petition for relief.

DISCUSSION

We have jurisdiction over this appeal pursuant to 28 U.S.C.

§ 1291. When reviewing the denial of a habeas corpus petition,
2 Section 924(c)(3) defines a crime of violence as having

“as an element the use, attempted use, or threatened use of

physical force against the person or property of another,” or as

by its nature, involving “a substantial risk that physical force

against the person or property of another may be used in the

course of committing the offense.” 18 U.S.C. § 924(c)(3)(2000).

4

we review the district court’s determinations of law de novo and

its findings of fact for clear error. See Venegas v. Henman, 126

F.3d 760 (5th Cir. 1997), cert. denied, 523 U.S. 1108 (1998). 

Since Warren claims the right to early release under section

3621(e), or at least consideration for such release, we begin

with a detailed review of that legislation and the BOP’s

regulations interpreting it. 

Section 3621(e)(2)(B), effective September 13, 1994, allows

prisoners convicted of “nonviolent” offenses who complete a DAP

to apply for a sentence reduction of up to one year at the

discretion of the BOP director. See 18 U.S.C. § 3621(e)(2)(b). 

The statute does not define a nonviolent offense. Effective May

25, 1995, the BOP promulgated regulation 550.58 that defined

“nonviolent offense” by identifying as not eligible for early

release those inmates whose current offense “is determined to be

a crime of violence as defined in 18 U.S.C. § 924(c)(3).”2 28

C.F.R. § 550.58 (1995). Also effective May 25, 1995, the BOP

issued Program Statement 5330.10 to outline the qualifications

for early release under section 3621(e) and regulation 550.58;

the language of the program statement essentially mirrors that in

the regulation. See U.S. Dept. of Justice, Bureau of Prisons

Program Statement No. 5330.10 (May 25, 1995). 
5

In July 1995, the BOP released Program Statement 5162.02, to

elaborate the meaning of crime of violence in the context of

section 3621. That version of the Program Statement listed 21

U.S.C. § 846, Warren’s offense of conviction, as an offense that

could be considered a crime of violence if the facts surrounding

the offense demonstrate “substantial risk” that force could have

been used during its commission. See U.S. Dept. of Justice,

Bureau of Prisons Program Statement No. 5162.02 (July 24, 1995). 

This was the regulatory framework in place in February 1996 when

the BOP first denied Warren consideration for early release under

section 3621(e). 

On April 23, 1996, the BOP clarified its interpretation of

crime of violence in Change Notice CN-01 to Program Statement

5162.02. As an example of a prisoner ineligible for early

release because of the commission of a crime of violence, the

Change Notice described a defendant serving a sentence for drug

conspiracy (21 U.S.C. § 846) that had been enhanced for

possession of a firearm. See U.S. Dept of Justice, Change Notice

CN-01 to Program Statement 5162.02 (April 23, 1996). By May 17,

1996, the BOP had modified 28 C.F.R § 550.58, explaining that “as

an exercise of the discretion vested in the Director of the

Federal Bureau of Prisons,” several categories of prisoners would

not be considered for early release. See 28 C.F.R. § 550.58

(1996). The regulation then defined as one such category,

“inmates whose current offense is a felony . . . that involved

the carrying, possession, or use of a firearm or other dangerous
6

weapon.” Id. at (a)(1)(vi)(B). Though the BOP has made

additional clarifications to regulation 550.58 since May 1996,

those changes are not relevant to the present appeal. 

I. Ex Post Facto Claim

Imposition of punishment more severe than that assigned when

a criminal act occurred is a violation of the Constitution’s

prohibitions on ex post facto laws. See U.S. CONST. art. I, §9,

cl. 3; Collins v. Youngblood, 497 U.S. 37, 42 (1990). In this

regard, the Supreme Court has recognized that legislative

modifications to early release provisions or parole standards may

violate the prohibition on ex post facto legislation if applied

retroactively. See, e.g., Lynce v. Mathis, 519 U.S. 433, 117

S.Ct. 891, 898, 137 L.Ed.2d 63 (1997)(finding violation of ex

post facto principles when statute made entire class of prisoners

ineligible for early release); Weaver v. Graham, 450 U.S. 24, 33-

35 (1981). Invoking these cases, Warren argues that the BOP

violated the ex post facto doctrine by retroactively applying its

regulations to deny him (and others subject to a sentence

enhancement for possession of a firearm) consideration for early

release under section 3621(e).

For an ex post facto violation to occur, two elements must

be present: (1) a law must be retrospective, that is, it must

apply to events occurring before its enactment, and (2) the new

law must create a sufficient risk of increasing the punishment

attached to the defendant’s crimes. See California Dept. of

Corrections v. Morales, 514 U.S. 499, 509, 115 S.Ct. 1597, 131
7

L.Ed.2d 588 (1995); Weaver, 450 U.S. at 29. In evaluating an

alleged violation of the ex post facto doctrine, the court must

rigorously analyze the level of risk that an inmate’s prison stay

will be longer because of a change in the law that applies

retroactively. See Garner v. Jones, 120 S.Ct. 1362, 1370 (2000);

see also Morales, 514 U.S. at 506-07 (“[T]he focus of the ex post

facto inquiry is not on whether a legislative change produces

some sort of ‘disadvantage’ . . . but on whether any such change

. . . increases the penalty by which a crime is punishable.”);

Lynce, 519 U.S. at 444 (ex post facto analysis should focus on

“the effect of the law on the inmate’s sentence”).

Warren’s complaints stem solely from administrative actions

of the BOP taken in accordance with the broad discretion that

Congress granted that agency in section 3621. Section 3621(e)

has not changed since Warren committed his offense in 1995; nor

has Congress passed any additional legislation that affects

Warren’s eligibility for early release under section 3621. This

court has previously suggested that the retroactive application

of BOP regulations reflecting the agency’s “reasonable exercise

of properly delegated discretion” does not violate the ex post

facto doctrine. See Wottlin v. Fleming, 136 F.3d 1032, 1037 (5th

Cir. 1998). Yet we need not rely on Wottlin today, for Warren

fails to specify an administrative regulatory change that placed

him at risk of increased punishment. 

Initially, we point out that Warren does not identify a

single rule change or clarification that took place between the
3 The Supreme Court has described the BOP’s Program

Statements as “internal agency guidelines” that, unlike BOP

regulations, are not subject to “the rigors of the Administrative

Procedure Act.” Reno v. Koray, 515 U.S. 50, 61 (1995). We state

no opinion as to whether such “internal agency guidelines,” at

least those passed by the BOP to guide the exercise of its

discretion under section 3621, are “laws” that can produce

sufficient risk of increased punishment to fail under ex post

facto review. 

8

time that he committed his offense in the summer/fall of 1995 and

the point at which the BOP first denied him consideration for

early release on February 8, 1996. Nevertheless, one response to

Warren’s administrative appeals did rely on the April 23, 1996

change notice to P.S. 5162.02 to justify Warren’s ineligibility. 

Assuming that this modification applied to Warren retroactively,

and that a BOP Program Statement is a “law” subject to ex post

facto review,3 we hold that the April 23, 1996 change did not

place Warren at risk of increased punishment. 

Indeed, the regulatory framework in effect from July 1995 to

April 1996 listed Warren’s offense - 21 U.S.C. § 846 - as

potentially ineligible for early release consideration under

section 3621(e) depending on the facts surrounding the commission

of the offense. See U.S. Dept. of Justice, Program Statement

5330.10 (May 25, 1995); U.S. Dept. of Justice, Program Statement

5162.02 (July 24, 1995). Change Notice-01 to P.S. 5162.02 merely

“clarified” the law in effect by listing as an example of inmates

ineligible for early release under section 3621(e) those inmates

serving sentences under 21 U.S.C. § 846 enhanced for possession

of a weapon. Although Warren’s case may not have been explicitly

excluded under the Program Statements in effect in the fall of
9

1995, the BOP could have refused to consider him for early

release in accordance with those guidelines. Merely clarifying

that cases like Warren’s should not be considered for early

release under section 3621 is not a “change” that places Warren

at risk of increased punishment. As a consequence, his claim

that the BOP violated the ex post facto clause in denying him

consideration for early release is not tenable. 

II. Whether the BOP Abused Its Discretion to Declare Him

Ineligible for Early Release

Warren also argues that section 3621(e)(2)(B) mandates that

he receive early release, or at least consideration for early

release. Warren’s argument takes two forms. First, relying on

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984), Warren contends that the BOP abused its

discretion under section 3621 by categorically denying him early

release consideration after he completed the DAP program. Next,

Warren argues that the BOP abused its discretion by relying on a

sentence enhancement to determine that he had committed a crime

of violence and thus was ineligible for early release

consideration. Both of Warren’s arguments are controlled by

prior decisions of this court. 

Chevron requires review of administrative regulations at two

levels. First, we examine congressional intent. If

congressional intent is not clear, we determine whether the

agency’s action is a permissible construction of the statute.

Chevron, 467 U.S. at 842-43. In Wottlin, this court reviewed the

BOP’s interpretation of section 3621(e)(2)(B) under the Chevron
4 Warren points to decisions from other circuits holding

that the BOP’s interpretation of section 3621 conflicts with

unambiguous language in the statute requiring “conviction” of a

violent crime, and thus constitutes an abuse of discretion. See,

e.g., Byrd v. Hasty, 142 F.3d 1395, 1398 (11th Cir. 1998); Downey

v. Crabtree, 100 F.3d 662, 668 (9th Cir. 1996). In evaluating

the BOP’s interpretation of “nonviolent” in section 3621, these

circuits ignore the fact that section 3621 grants the BOP

unfettered discretion to determine which “nonviolent” inmates it

will consider for early release. As we noted in Venegas, nothing

in section 3621 prevents the BOP from exercising that discretion

categorically, electing not to consider for early release any

prisoner whose sentence has been enhanced for possession of a

dangerous weapon. See Venegas, 126 F.3d 163-64. At any rate,

these contrary decisions on which Warren relies are not the law

in this circuit. It is well established that one panel of this

circuit may not overrule the prior decisions of another panel. 

See, e.g., United States v. Taylor, 933 F.2d 307, 319 (5th Cir.

1991).

10

standard, finding that Congress intended to leave sentence

reduction to the BOP’s discretion and that the BOP could

reasonably exclude whole categories of inmates from

consideration. See Wottlin, 136 F.3d at 1035. Also, we have

expressly recognized that section 3621(e)(2)(B) grants the BOP

broad discretion to exclude from early release consideration

prisoners serving sentences for drug conspiracy that were

enhanced for possession of a dangerous weapon during the course

of the conspiracy. See Venegas, 126 F.3d at 765 (exclusion of a

prisoner from early release consideration because of a sentence

enhancement for possession of a weapon “[w]as consistent with the

letter and spirit of [BOP]’s authority as derived from section

3621(e)”). The combination of Venegas and Wottlin forecloses

Warren’s arguments regarding the BOP’s discretionary power to

deny him consideration for early release under section 3621(e).4
11

III. Warren’s Procedural Due Process Claims

Realizing that his present inability to receive early

release consideration flows from the sentence enhancement and the

preliminary sentencing report on which that enhancement was

based, Warren challenges the propriety of that report. 

Initially, he asserts that the BOP abused its discretion in

relying on “false, inaccurate, and unreliable information.” 

Warren also contends that the district court deprived him of

procedural due process by failing to make de novo findings on

specific issues during the habeas petition process. Neither

argument has merit.

To the extent that Warren challenges the reasonableness of

the BOP’s reliance on information contained in preliminary

sentencing reports to deny early release consideration, his claim

is foreclosed by Venegas and our reasoning in the previous

paragraph. See Venegas, 126 F.3d at 765. To the extent that

Warren is challenging the factual correctness of the sentence

enhancement, he has chosen the wrong mechanism for collateral

attack. Section 2255 provides the primary means of collateral

attack of a federal sentence. See Cox v. Warden, Fed. Detention

Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). Section 2241, on the

other hand, is the proper habeas remedy for challenging the

execution of a sentence. See id.; United States v. Cleto, 956

F.2d 83, 84 (5th Cir. 1992). Warren’s section 2255 motion to

vacate sentence has been heard and denied; he is not entitled to

relitigate that issue under the heading of section 2241. See
5 Warren also argues that the magistrate’s report was

untimely under 28 U.S.C. 636(b). This argument is frivolous. 

Section 636 does not impose any deadlines for filing Reports and

Recommendations on habeas corpus petitions. Moreover, this court

has already reviewed the conduct of the magistrate when it

dismissed Warren’s application for a writ of mandamus without

prejudice.

12

Solsona v. Warden, F.C.I., 821 F.2d 1129, 1132 (5th Cir. 1987);

United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980); Lane

v. Hanberry, 601 F.2d 805, 806 (5th Cir. 1979). 

Warren also argues that the district court should have

reviewed the entire record de novo and made findings of fact

independent of those made by the magistrate in his report. He

contends that this failure deprived him of procedural due

process.5 Because Warren objected to the findings of the

magistrate judge’s report in a timely fashion, the district court

was required to perform a de novo review of the petition. See

United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert.

denied, 492 U.S. 918, 109 S.Ct. 3243, 106 L.Ed.2d 590 (1989). 

The district court specified in its final judgment that it had

reviewed the entire record. Absent evidence to the contrary,

this court is compelled to believe that the district court

performed this duty. See Lara v. Johnson, 141 F.3d 239, 242 (5th

Cir. 1998); Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir.

1993). Warren seems to suggest that the absence of new factual

findings is evidence that a de novo review was not conducted. 

Yet, this court has held that new findings of fact are not

necessary to demonstrate that de novo review took place. See

Koetting, 995 F.2d at 40. 
13

CONCLUSION

Having reviewed Warren’s claims and found no basis for

overturning the BOP’s decision to deny him consideration for

early release under section 3621(e), we AFFIRM the decision of

the district court.