(e) Substance abuse treatment. 1

 (2) Incentive for prisoners' successful completion of treatment program.

 . . . 

 (B) Period of custody. The 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. . .

 18 U.S.C. § 3621(e).

In about December 2001, Dr. Johnson, a RDAP instructor, told Petitioner that he was

2

eligible for a year reduction in his sentence. After Petitioner completed the RDAP, a Program

IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MICHAEL RAY RICHARDSON, §

 §

Petitioner, §

 §

v. § Civil Action No. 3:05-CV-1371-M

 §

DAN JOSLIN, Warden, FCI Seagoville, §

 §

Respondent. §

MEMORANDUM OPINION AND ORDER

This Court has conducted an independent review of the file and the pleadings in this case,

as well as the Findings, Conclusions, and Recommendation of United States Magistrate Judge

Paul D. Stickney, filed on August 30, 2005, to which the Petitioner has asserted objections. The

Court does not accept the Findings, Conclusions, and Recommendation of the United States

Magistrate Judge, and issues this Order in lieu thereof.

Petitioner Michael Richardson ("Petitioner") was convicted of conspiracy to commit

money laundering. While in prison, Petitioner applied for and completed the residential drug

abuse treatment program (“RDAP”) and sought early release under 18 U.S.C. § 3621(e). On 1

three separate occasions, prison officials determined that Petitioner was eligible for early release

due to his participation in the RDAP. In November 2004, the regional drug abuse coordinator 2

 

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Review Report created by the BOP showed that Petitioner was eligible for early release. On

September 16, 2004, another review of Petitioner’s early release showed that Petitioner was

approved for placement in a Community Correction Center.

According to Program Statement 5162.04 § 7, an inmate is ineligible for early release if 3

his felony, “by its nature or conduct, presents a serious potential risk of physical force against the

person or property of another”.

According to Program Statement 5162.04 § 7, an inmate is ineligible for early release if 4

his felony “involved the carrying, possession, or use of a firearm or other dangerous weapon or

explosives (including any explosive material or explosive device)”.

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reversed the earlier decisions, stating that guns found at the Petitioner’s residence rendered him

ineligible for participation in the early release program. Petitioner filed a Request for

Administrative Remedy on November 15, 2004. On December 16, 2004, in response to

Petitioner’s Request, Respondent wrote that Petitioner was not entitled to a sentence reduction,

noting: “Marijuana, drug ledgers, cash in the amount of $41,814.00 and two (2) handguns were

seized at the time of your arrest. Based on those factors, the conduct itself presented a potential

risk of serious force.” Petitioner appealed that decision to the regional director of the Bureau of 3

Prisons (“BOP”), who also denied Petitioner early release. On June 16, 2005, Harrell Watts,

Administrator of National Inmate Appeals, denied Petitioner’s final appeal. He determined that

Petitioner was ineligible for early release under Program Statement 5162.04 § 7, concluding that,

because “[m]arijuana, drug ledgers, $41,814.00, and two handguns were seized at the time of

your arrest,” Petitioner’s offense “is a felony that involved the carrying, possession, or use of a

firearm or other dangerous weapon or explosive . . .” . Petitioner then brought this action under 4

28 U.S.C. § 2241.

The due process rights of prisoners include freedom from restraint which "impose[s]

atypical and significant hardships on the inmate in relation to the ordinary incidents of prison

life." Sandin v. Conner, 515 U.S. 472, 484 (1995). An inmate can establish the deprivation of a

 

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The Court notes that Respondent and Mr. Watts justified their decisions on different 5

portions of Program Statement 5162.04 § 7. The Court analyzes both. 

At testimony before the United States Magistrate Judge, the South Central Regional 6

Drug Abuse Program Coordinator for the BOP, Dr. Marti Carlson, conceded that the BOP

declared Petitioner ineligible for transfer to a half-way house, which is a prerequisite to early

release, based exclusively on the statement in paragraph 26 of the Presentence Report (“PSR”)

that handguns, marijuana, drug ledgers, and $41,814 in currency were seized from Petitioner’s

residence.

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liberty interest mandated under federal law that "inevitably affect[s] the duration of his sentence."

Sandin, 515 U.S. at 487. This requires more than a unilateral expectation of a sentence reduction.

A prisoner must "have a legitimate claim of entitlement to it." Bulger v. United States Bureau of

Prisons, 65 F.3d 48, 50 (5th Cir. 1995), (quoting Board of Regents v. Roth, 408 U.S. 564,

(1972)).

The BOP has discretion to determine whether an inmate is eligible for early release. 18

U.S.C. § 3621(e)(2)(B); see also Lopez v. Davis, 531 U.S. 230 (2001). Petitioner contends that

the BOP abused its discretion, or acted in an arbitrary and capricious manner, in determining that

Petitioner is ineligible for a sentence reduction based on the presence of firearms at his home.5

Pre-conviction conduct is one factor that may be considered by the BOP in exercising its

discretion. Lopez, 531 U.S. at 242. The BOP relied on Program Statement 5162.04 § 7 in denying

Richardson a sentence reduction. Having adopted that Statement, the BOP is bound to apply it, 6

and its failure to do so can create a due process violation where prejudice to the inmate results.

See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954); Am. Farm Lines v. Black

Ball Freight Serv., 397 U.S. 532 (1970); United States v. Morgan, 193 F.3d 252, 266-67 (4th Cir.

1999); see also Stafford v. Pratt, 3:01-CV-35-M, 2001 U.S. Dist. LEXIS 6713, at *5 (N.D. Tex.

May 22, 2001) (Lynn, J.). If Petitioner can show that he was otherwise eligible for early release,

and the application of Program Statement 5162.04 § 7 to his case was arbitrary and capricious, he

 

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has the legal right to challenge it under 18 U.S.C. § 2241. Cf. Royal v. Tombone, 141 F.3d 596,

601-02 (5th Cir. 1998).

Program Statement 5162.04 § 7 does not support the BOP’s decision not to apply 18

U.S.C. § 3621(e) to this case, and its application to the facts of this case is arbitrary and

capricious. Petitioner was convicted of conspiracy to commit money laundering, in violation of

18 U.S.C. § 1956(h). The sentencing court made no finding that the crime of which Petitioner

was convicted involved the actual or constructive possession or use of a firearm. The BOP found,

based exclusively on paragraph 26 of the PSR, that the presence of firearms in a location in

which drugs, drug distribution records and apparent drug proceeds were located made Petitioner

ineligible for early release under Program Statement 5162.04 § 7.

Program Statement 5162.04 § 7 states:

[A]n inmate serving a sentence for an offense that falls under the provisions described

below shall be precluded from receiving certain Bureau program benefits. 

Inmates whose current offense is a felony that:

. . .

- involved the carrying, possession, or use of a firearm or other dangerous weapon

or explosives (including any explosive material or explosive device), or

- by its very nature or conduct, present a serious potential risk of physical force

against the person or property of another . . .

For 5162.04 § 7 to apply, conspiracy to commit money laundering must “by its very nature or

conduct, present a serious potential risk of physical force against the person or property of

another,” or that, in Petitioner’s case, it “involved the carrying, possession, or use of a firearm or

other dangerous weapon.” Conspiracy to commit money laundering does not in and of itself

present a serious potential risk of physical force against the person or property of another, and

there were no findings or evidence that the firearms were used in connection with the offense of

conviction. The PSR states that “during the execution of a search warrant at the residence of

 

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Watts’ decision and Respondent’s decision state that the firearms were seized “at the 7

time of [Petitioner’s] arrest.” Based on the PSR, however, the firearms were seized more than

two months prior to Petitioner’s arrest. 

In his Findings, Conclusions, and Recommendation, the United States Magistrate Judge 8

distinguished Hicks on its facts. Specifically, the Magistrate Judge stated that had Petitioner

contested at the sentencing hearing the presence of the firearms at his apartment, Hicks would

arguably compel relief, but because Petitioner did not object to paragraph 26 of the PSR, Hicks is

inapposite. This Court does not agree. There is still no evidence that Petitioner’s offense of

money laundering involved firearms, nor does the PSR make that link. See Hicks, 203 F. Supp.

2d at 382 (“On its face, the [PSR] contains the uncontested fact that a .45 caliber firearm was

found during a search. Everything else pertaining to the firearm is unresolved. This is simply not

enough to support a conclusion that the petitioner's offense of money laundering involved the

possession of a firearm. The BOP's contrary finding was necessarily an abuse of discretion

because it was not supported by any credible evidence.”) The fact that Petitioner did not object at

the sentencing hearing does not preclude him from obtaining relief based on a causal link not

made by the PSR nor by any evidence offered at the sentencing hearing.

18 U.S.C. § 3665 provides for forfeiture of firearms used in perpetrating a felony, as 9

punishment for the offense. This provision can be invoked if the indictment alleges that

designated property is subject to forfeiture and a judgment of criminal forfeiture is entered. See

Cooper v. Greenwood, 904 F.2d 302, 304 n.2 (5th Cir. 1990).

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[Petitioner] on May 4, 1999, two handguns, marijuana, drug ledgers, and $41,814 in currency

were seized.” The PSR does not connect the evidence to Petitioner’s later arrest, on July 7, 1999, 7

nor to the crime of conspiracy to commit money laundering. The presence of the guns at

Petitioner’s home does not necessarily indicate that his money laundering offense involved guns,

nor that Petitioner’s conduct in relation to his offense presented a serious potential risk of

physical force against the person or property of another. Cf. Hicks v. Hood, 203 F. Supp. 2d 379,

382 (D. Or. 2002). Were the guns involved with the money laundering offense, they would be 8

subject to forfeiture. Instead, they were returned to Petitioner’s mother after his prosecution. 9

The statement in paragraph 26 of the PSR is the sole basis for the BOP’s decision that

Petitioner is ineligible for early release. It does not support the conclusion that Petitioner’s

conduct presents a serious potential risk of serious force against the person or property of

another, nor that Petitioner’s offense is a felony that involves the carrying, possession, or use of a

 

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The Court would reach this conclusion whether or not the BOP had initially determined 10

that Petitioner was provisionally eligible for sentence reduction. Therefore, this case is unlike

Cort v. Crabtree, 113 F.3d 1081 (9th Cir. 1997), and Galle v. Clark, 346 F. Supp. 2d 1052, 1056-

57 (N.D. Cal. 2004). 

- 6 -

firearm or other dangerous weapon. The decision of Watts and Respondent to the contrary is an 10

abuse of discretion.

The petition for habeas corpus relief is, therefore, GRANTED. Pursuant to the BOP's

regulations, the BOP should have recommended Petitioner for release to a Community

Corrections Center beginning December 22, 2004. The Court ORDERS the BOP to immediately

take all steps necessary to give Petitioner a one-year credit on his sentence for his participation in

the RDAP.

SO ORDERED.

November 3, 2005.

_________________________________

BARBARA M.G. LYNN

UNITED STATES DISTRICT JUDGE

 

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