#### Charles A. RUBLEE, Petitioner-Appellant, v. L.E. FLEMING, Respondent-Appellee.

No. 98-50177

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Nov. 6, 1998.

*214Charles A. Rublee, Dickinson, TX, pro se.

Before KING, BARKSDALE and STEWART, Circuit Judges.

PER CURIAM:

Charles Rublee (Rublee), a federal prisoner, appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition challenging the execution of his sentence. For the reasons that follow, we affirm the decision of the district court.

*I. BACKGROUND*

According to his petition, Rublee was arrested for a drug offense involving marijuana and was released on bond. After he failed to appear, a warrant for Rublee’s arrest issued. Rublee was located in Colombia, and was returned to the United States where he pled guilty to a single-count indictment charging him with a violation of 21 U.S.C. § 841(a)(1). On January 6,1997, the trial court sentenced him to thirty-three months of imprisonment and three years of supervised release.

While in prison, Rublee participated in and completed a 500-hour residential drug-treatment program which provisionally qualified him for early release under 18 U.S.C. § 3621(e)(2)(B).1 During the course of his treatment, he was considered for placement in a community corrections center (CCC) (a type of half-way house where inmates receive community-based treatment), but, on July 31, 1997, Rublee was denied placement due to concern that he would be a flight risk. The denial of the request for CCC placement disqualified Rublee from early release under Bureau of Prisons (BOP) regulations. Ru-blee filed grievances with the warden, the regional director, and the BOP national administrative inmate appeals division requesting administrative review of the decision to deny him CCC placement and a § 3621(e) early release. Ml of Rublee’s requests for administrative relief were denied.

On November 7, 1997, Rublee filed a § 2241 petition in the district court arguing that the BOP exceeded its authority by requiring that a prisoner be eligible to participate in a community-based drug-treatment program to be eligible for a § 3621(e) sentence reduction, and that the BOP’s requirements were arbitrary and a violation of his constitutional rights. The magistrate judge, citing *Venegas v. Henman,*126 F.3d 760, 765 (5th Cir.1997), *cert. denied,*— U.S. -, 118 S.Ct. 1679, 140 L.Ed.2d 817 (1998), concluded that the BOP’s policy of refusing to grant § 3621(e) sentence reductions to inmates ineligible for community-based treatment was within the discretion afforded the BOP under § 3621. The magistrate judge recommended dismissal of Rublee’s § 2241 petition. On February 5, 1998, the district court adopted the magistrate judge’s recommendation and dismissed Rublee’s § 2241 petition. Rublee timely appealed.2

*II. DISCUSSION*

A. Promulgation of 28 C.F.R. § 550.58(a)(l)(v)

Section 3621(b) provides that “[t]he Bureau shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse.” 18 U.S.C. § 3621(b). Section 3621(e)(1) states that in order for the BOP to carry out this requirement, it “shall ... provide residential substance abuse treatment (and make arrangements for appropriate aftercare).” *Id.*§ 3621(e)(1).

The statute defines “residential substance abuse treatment” as “a course of individual and group activities, lasting between 6 and 12 *215months, in residential treatment facilities set apart from the general prison population.” *Id.*§ 3621(e)(5)(A). The statute defines “aftercare” as “placement, case management and monitoring of the participant in a community-based substance abuse treatment program when the participant leaves the custody of the Bureau of Prisons.” *Id.*§ 3621(e)(5)(C). As an incentive for prisoners to participate in the drug treatment program,

> [t]he period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.

*Id.*§ 3621(e)(2)(B).

Under BOP regulations, certain categories of inmates are not eligible for early release, including “[i]nmates who are not eligible for participation in a community-based program as determined by the Warden on the basis of his or her professional discretion.” 28 C.F.R. § 550.58(a)(l)(v). The BOP policy statement expresses the BOP’s belief that a community-based program (either in a CCC or on home confinement) is necessary to achieve successful results. *See*61 Fed.Reg. 25,121 (1996).

Rublee argues that the BOP exceeded its authority by requiring completion of a community-based drug program as a component of the drug treatment program necessary to be eligible for early release under § 3621(e)(2)(B). He contends that the definitions of “residential substance abuse treatment” and “aftercare” in § 3621(e)(5) are unambiguous and that the plain language of the statute indicates that a community-based drug program is not a component of the drug program described in § 3621.

This court reviews the BOP’s regulations in § 550.58 under the two-step standard set forth in *Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,*467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). *See Wottlin v. Fleming,*136 F.3d 1032, 1035 (5th Cir.1998). First, if the intent of Congress is clear and unambiguously expressed in § 3621, the BOP and the court must give effect to congressional intent. *See id.*(citing *Chevron,*467 U.S. at 842-43, 104 S.Ct. 2778). Second, if the statutory language is ambiguous or silent on a particular issue, then we must determine whether the BOP’s interpretation is “ ‘based on a permissible construction of the statute.’ ” *Id.*(quoting *Chevron,*467 U.S. at 843, 104 S.Ct. 2778).

Although this circuit has held that § 3621(e)(2)(B) gives the BOP discretion to determine which prisoners are eligible for early release and that the “BOP did not abuse its discretion in promulgating 28 C.F.R. § 550.58,” *id.*at 1036, neither this nor any other circuit has addressed specifically whether the BOP exceeded its authority in promulgating 28 C.F.R. § 550.58(a)(l)(v), which disqualifies prisoners not eligible for community-based treatment from receiving early release under § 3621(e)(2)(B). Because the language of the statute does not unambiguously prohibit the BOP’s community-based treatment requirement, the requirement need only be a permissible interpretation of the statute to survive *Chevron*scrutiny. This court will defer to legislative regulations so long as they are not “ ‘arbitrary, capricious, or manifestly contrary to the statute.’” *Wottlin,*136 F.3d at 1035 (citing *Chevron,*467 U.S. at 844, 104 S.Ct. 2778).

In *Venegas v. Henman,*this court focused on the language “may be reduced” in § 3621(e)(2)(B), and found that it affords the BOP discretion to determine which offenses constitute “nonviolent offenses” eligible for early release. *See*126 F.3d at 763. We held that the BOP’s decision to exclude felon-in-possession of a weapon convictions and drug convictions enhanced for possession of a firearm was “consistent with the letter and spirit of the Bureau’s authority as derived from section 3621(e).” *Id.*at 765.

In *Wottlin v. Fleming,*this court reviewed the disqualification from § 3621(e)(2)(B) early release of “ ‘inmates who have a prior felony conviction for homicide, forcible rape, robbery, or aggravated assault.’ ” 136 F.3d at 1035 (quoting 28 C.F.R. § 550.58). We agreed with the Ninth Circuit that the language of § 3621(e)(2)(B), which provides that *216a prisoner’s sentence “may be reduced” after the successful completion of a drug-treatment program, affords the BOP broad discretion in deciding which inmates qualify for early release, and agreed with the Ninth and Third Circuits that § 550.58 was not an abuse of the BOP’s discretion. *See id.*at 1035-36 (citing *Stiver v. Meko,*130 F.3d 574, 577 (3d Cir.1997); *Jacks v. Crabtree,*114 F.3d 983, 984 (9th Cir.1997), *cert. denied,*— U.S. -, 118 S.Ct. 1196, 140 L.Ed.2d 325 (1998)).

The *Venegas*and *Wottlin*cases stand for the proposition that the language of § 3621(e)(2)(B) affords the BOP discretion in deciding whether to allow early release upon completion of the drug-treatment program described in the statute. Rublee argues that the plain language of the statute precludes the BOP from requiring community-based treatment because the statutory definition of “residential substance abuse treatment” is defined explicitly as “a course of individual and group activities, lasting between 6 and 12 months, in residential treatment facilities set apart from the general prison population,” and does not include any reference to community-based treatment. 18 U.S.C. § 3621(e)(5)(A). However, it is the responsibility of the BOP to determine whether an inmate has successfully completed a drug-treatment program: “The legislative history of section 3621(e) states that the determination of successful completion of a substance abuse treatment program! ] is to be ‘based on criteria *established and applied by the Bureau of Prisons.’ ” Venegas,*126 F.3d at 762 (quoting H.R.Rep. No. 103-320 (1993)). The BOP, “in exercising its discretion in determining the successful completion of a residential drug abuse treatment program under 18 U.S.C. 3621(e), ... therefore required] that consideration for early release be contingent upon the inmate’s completion of transitional services in a community-based program.” 61 Fed.Reg. 25,121 (1996).

Even if Rublee is correct that the BOP has improperly expanded the definition of “residential substance abuse treatment” by requiring community-based treatment, he still is not entitled to the relief he seeks because § 3621(e)(2)(B) affords the BOP broad discretion to deny sentence reductions to even those inmates who have “successfully com-plet[ed] a treatment program.” 18 U.S.C. § 3621(e)(2)(B); *see Wottlin,*136 F.3d at 1035-36; *Venegas,*126 F.3d at 763-65. Under § 3621(e)(2)(B), the BOP “may,” but implicitly need not, reduce the sentences of such inmates.3 Therefore, it has the authority to make § 3621(e)(2)(B) early release contingent upon the fulfillment of the community-based treatment requirement.

Rublee next argues that the BOP’s requirement that an inmate complete community-based treatment *prior*to early release subverts the definition of “aftercare,” which requires community-based treatment *after*“the participant leaves the custody of the Bureau of Prisons.” 18 U.S.C. § 3621(e)(5)(C). The definition of “aftercare” set forth in § 3621(e)(5)(C) and the requirement that the BOP “make arrangements for appropriate aftercare,” *id.*§ 3621(e)(1), do not preclude the BOP from exercising its discretion under § 3621(e)(2)(B) to require pre-release community-based treatment before awarding a sentence reduction. The provisions are not mutually exclusive.

Finally, Rublee argues that the BOP’s community-based treatment requirement is impermissible because it conflicts with the BOP’s earlier interpretation of the statute that did not require community-based treatment. *See*61 Fed.Reg. 25,121 (1996). The court does not find this argument compelling. The BOP added the community-based treatment requirement after receiving public comment, including a comment from the American Psychiatric Association (APA) that expressed the belief that the BOP’s requirement of one hour per month of transitional services would be insufficient to facilitate good results. *See id.*Therefore, the BOP *217did not abuse its discretion in adding the community-based treatment requirement to its regulations.

.The exclusion of prisoners who cannot complete community-based treatment from § 3621 early release is not arbitrary or capricious and does not conflict with the purposes underlying the statute. Therefore, we hold that 28 C.F.R. § 550.58(a)(l)(v) is a permissible exercise of the BOP’s discretion under § 3621(e).4

B. Constitutional Claims

Rublee argues that the application of § 550.58 to him violates his rights to due process and equal protection. Liberally construed, Rublee’s due process argument is that he had a protected liberty interest in a sentence reduction once he completed the residential drug-treatment program. He further argues that the BOP’s community-based treatment requirement violates equal protection because completion of a drug program in a half-way house is not rationally related to the successful completion of the drug program described in § 3621 and because it discriminates against prisoners not eligible for CCC placement.

Rublee’s argument that he had a protected liberty interest in receiving the sentence reduction lacks merit. A protected liberty interest exists only when a regulation uses “ ‘mandatory language to place a substantive limit on official discretion.’ ” *Wottlin,*136 F.3d at 1036 (quoting *United States v. Tubwell,*37 F.3d 175, 179 (5th Cir.1994)). There is no mandatory language requiring that inmates be released upon completion of the drug-treatment program, and thus Ru-blee had no protected liberty interest in receiving a § 3621(e)(2)(B) sentence reduction. *See id.*

With respect to Rublee’s equal protection argument, “[s]triet scrutiny is appropriate only where a government classification implicates a suspect class or a fundamental right.” *Id.*(citing *City of Cleburne, Tex. v. Cleburne Living Ctr.,*473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)). Otherwise, rational-basis review applies and this court need only determine whether the classification is rationally related to a legitimate government interest. *See id.*at 1037.

The BOP’s classification implicates neither a fundamental right nor a suspect class. In *Wottlin,*we refused to recognize a fundamental right to early release “ ‘among the rights and liberties protected by the Constitution.’ ” *Id.*at 1036-37 (quoting *San Antonio Indep. Sch. Dist. v. Rodriguez,*411 U.S. 1, 29, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973)).5 Nor does the classification of prisoners by their eligibility for CCC placement implicate a suspect class.

Thus, rational-basis review is appropriate. The exclusion from early release of those inmates ineligible for community-based treatment survives rational-basis review. In promulgating the regulation, the BOP took account of the APA’s concern about the efficacy of transitional drug-treatment services in an institutional context. *See*61 Fed.Reg. 25,121 (1996). The BOP agreed with the APA that enhanced transitional services were necessary for the successful completion of the drug program, and decided to require community-based treatment to increase the opportunity for positive results. See *id.*This requirement is rationally related to the legitimate government interest of reducing recidivism, which is a stated purpose underlying § 3621(e). *See Venegas,*126 F.3d at 763 (citing H.R.Rep. No. 103-320 (1993)). Accordingly, there is a rational basis for the categorization contained in § 550.58(a)(l)(v) and Rublee’s constitutional challenges fail.

*218*III. CONCLUSION*

For the foregoing reasons, we AFFIRM the decision of the district court. Rublee’s motion to expedite the appeal is denied as moot.

1

. Rublee completed the treatment program on February 27, 1998.

2

. Rublee’s projected release date is November 8, 1998.

3

. Rublee contends that "[s]ection 3621(e)(2) plainly and unambiguously authorizes sentence reduction for prisoners convicted of a nonviolent offense who successfully complete a 6 to 12 month residential substance abuse treatment program while in prison." Rublee is correct that the BOP is *authorized*to allow sentence reductions for such prisoners. However, it is not *required*to do so.

4

. Rublee also argues that the limitation of § 3621(e) early release to those inmates who complete community-based treatment produces absurd and unconstitutional results because inmates can be denied CCC placement for numerous reasons that bear no relation to their ability to complete the drug-treatment program defined in the statute. This argument will be addressed infra in the analysis of Rublee’s constitutional claims.

5

. In *Wottlin,*we also held that classification of prisoners based on the type of offense for which they were convicted did not implicate a suspect class, and that the classification was rationally related to Congress's intent to afford early release only to prisoners convicted of nonviolent offenses. *See Wottlin,*136 F.3d at 1036-37.