DLD
- 154 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 1

- 1052

___________ HERBERT SPERLING ,

Appellant

v. WARDEN DAVID EBBERT

____________________________________ On Ap peal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 1 0

- cv
- 0 0 191 ) District Judge: Honorable Richard P. Conaboy

____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 March 31, 2011
Before: BARRY, FISHER and ROTH , Circuit Judges

(Opinion filed : July 20, 2011 )

_________ OPINION

_________ PER CURIAM

. In 1973, the United States District C ourt for the Southern District of New York imposed a sentence of life imprisonment upon Herbert Sperling following his conviction
for , inter alia , organizing a continuing criminal narcotics enterprise

. See United States v.2

Sperling , 506 F.2d 1323 , 1344 (2 d Cir. 1974) (“T he record shows that Sperling was the operational kingpin of a highly organized, structured and on

- going narcotics network. ”). Sperling, now age seventy

- two , is currently serving the sentence at FCI

- Allenwood in Pennsylvania. In January 2 010, he fil ed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the United State s District Court for the Middle District of Pennsylvania , claiming that the Bureau of Prisons (“BOP”) has improperly deemed him ineligible for the Elderly Offender Home Detention Pilot Program (“EOHDP P ”) because
he is serving a sentence of life imprisonment. The District Court denied the habeas petition, concluding that Sperling is prohibited by sta tute , 42 U.S.C. § 17541(g) , from eligibility for the EOHDP P, and that the BOP has reasonably construe d the governing

statute to exclud e life

- sentenced inmates . Sperling timely filed this appeal.
We have appellate jurisd iction under 28 U.S.C. § 1291. We exercise plenary review over the District Court’ s legal c onclusions

. Woodall v. Fed. Bur

. of Prisons , 432 F.3d 235, 239 n.3 (3d Cir. 2005)

. T he Second Chance Act of 2007 established the EOHDPP by directing the Attorney General to conduct a two

- year pilot program “to determine the effectiveness of removing elig ible elderly offenders from a [BOP] facility and placing such offenders on home detention until expiration of the prison term to which the offender was sentenced.” 42 U.S.C. § 17541(g) (1)(A) (emphasis added). The sole question here is whether Sperling is an “ eligible elderly offender ” despite serving a term of life imprisonment.
The statute defines “ eligible elderly offender” to require that an inmate meet3

several criteria in order to participate in the pilot program , including the following :

The term “eligible elderly offender” means an offender in the custody of the Bureau of Prisons

-- (i) who is not less than 65 years of age; [and] ( ii) who is serving a term of imprisonment that is not life imprisonment based on conviction for an offense or offenses that do not include any crime of violence

... , sex offense

... , offense described in section 2332b(g)(5)(B) of title 18, United States Code, or offense under chapter 37 of title 18, United States Code

... , and has served the greater of 10 years or 75 percent of the term of imprisonment to w hich the offender was sentenced[.] 42 U.S.C. § 17541(g)(5)(A)(ii) (emphasis added)

. On February 5, 2009, the BOP issued Operations Memorandum No. 003

- 2009 (5392) to provide guidance to its staff in administering the EOHDPP. Th e Memorandum explains that inmates must meet all statutory eligibility criteria to participate in the
EOHDPP. With re gard to life sentences, t h e Memorandum explains that “[i]nmates serving life sentences are not eligible to participate in the pilot prog ram because it is not possible to calculate 75% of a life sentence.” Sperling argues that the BOP has erred in determining eligibility for the EOHDPP because, as he reads § 17541(g)(5)(A)(ii) , Congress did not exclude life

- sentence d inmates per se , but rather i dentified only certain crimes for which a life sentence bar s

e ligibility , such as a “ c rime of violence” or “sex offense

. ” Sperling thus argues that his
life sentence does not render him ineligible under § 17541(g)(5)(A)(ii)

. Sperling’s argument, however, turns on an insupportable construction of the statut ory languag e
. Section 17541(g)(5)(A)(ii) provides in relevant part that an eligible offender is one4

“ serving a term of imprisonment that is not life imprisonment based on conviction for an
offen se or offenses that do not include any crime of violence , [ sex offense, and other specified offense. ]” The phrase “that is not life imprisonment ” clearly modifies “term of imprisonment” so as to provide that only those offenders serving a ter m of imprison ment that is not for life (and th ose serving a term of imprisonment for offenses that do not
include a ny crime of violence or other listed offenses ) are eligible for the EOHDPP

. The statute is not phrased, as Sperling would have it, to grant eligibility t o inmates serving life

terms so long as the life term was not imposed upon conviction for a ny crime of violence
or other offense listed in the statute. That is not a natural or even plausible reading of the statutory langu age
.

“ If the intent of Congres s is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. ” Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842

- 43 (1984) ; see Madison v. Resou rces for Human Dev., Inc. , 233 F.3d 175, 185 (3d Cir. 2000) ( “ It is
well

- settled that if a statute unambiguously expresses Congress’ s intent, courts must give
effect to that intent. ” ). The District Court properly concluded that Sperling is entitled to

no relief in light of the expressed intent in § 17541(g)(5)(A)(ii) to exclude life

- sentenced inmates from the definition of “ eligible elderly offender

. ” Alternatively, even assum ing , arguendo , that the language of § 17541 (g)(5)(A)(ii)
alone does not conclusi vely resolve this matter , we find the BOP’s interpretation of the

statute reasonable and persuasive . A s the BOP observes in its Operations Memorandum,5

it is not possible to render an eligibility determination for a life

- sentenced inmate while doing servic e to the express statutory requirement that an offender “has served the greater of 10 years or 75 percent of the term of imprisonment to which the offender was
sentenced .” § 17541(g)(5)(A)(ii)

. This criterion of a t least 75 percent service before eligibi lity would be rendered meaningless , or at best unworkable , if it were applied to inmates serving terms that run for the duration of their natural lives. The BOP has thus properly interpreted § 17541(g)(5)(A)(ii) to exclude life

- sentenced inmates “ so that effect is given to all [the statute’s] provisions, so that no part will be inoperative or superfluous, void, or insignificant. ” Erienet, Inc. v. Velocity Net , 156 F. 3d 513, 516 (3d Cir. 1998) (quotation marks omitted). F inally , while “ informal agency int erpretations of statutes, such as the BOP Operations Memorandum here, are not subj ect to deference,” Izzo v. Wiley , 620 F .3d 1257, 1259 (10th Cir. 2010) , Sperling offer s no viable argument that t he BOP’s interpretation of § 17541(g)(5)(A)(ii) is anything b ut the correct one
. In s um , the District Court properly denied Sperling’s habeas corpus petition
b ecause the BOP acted consistently with the controlling statutory authority in deeming
him ineligible for the EOHDPP. B ecause this appeal from th e denial of Sperling’s habeas petition presents “no substantial question , ” 3d Cir . LAR 27.4 and I.O.P. 10.6 , we will affirm the District Court’s judgment.