* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

May 23, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 02-10827

__________________________

ORVILLE LYNN HOLCOMBE,

Petitioner-Appellant,

versus

L.E. FLEMING, Warden, Federal Medical Center, Fort Worth,

Respondent-Appellee.

___________________________________________________

Appeal from the United States District Court

For the Northern District of Texas

(No. 02-CV-473)

___________________________________________________

Before SMITH, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM: *

Orville Lynn Holcombe (“Holcombe”), a federal prisoner, appeals the district court’s denial

of his 28 U.S.C. § 2441 petition for habeas corpus challenging the execution of his sentence. For the

following reasons, we AFFIRM the decision of the district court.

I. FACTS AND PROCEEDINGS

On May 4, 1993, the district court for the Western District of Texas sentenced Holcombe to1 Section 3621(e)(2)(B) states:

The period a prisoner convi cted of a n onviolent offense remains in custody after

s uccessfully completing a treatment program m ay 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.

(emphasis added).

Section 3621 does not define “nonviolent offense”. The early release incentive program

authorized under § 3621 went into eff ect in 1994 under the Violent Crime Control and Law

Enforceme nt Act of 1994. In authorizing the program, Congress did not specify a particular

program, but instead left the contours of the program to the BOP’s discretion:

In effect, this subparagraph authorizes the Bureau of Prisons to shorten by up to one

year the prison term of a priso ner who has successfully completed a treatment

program, based on criteria to be established and uniformly applied by the Bureau

of Prisons.

H.R. Rep. 103-320, 103rd Cong., 1st Sess. (1993) (emphasis added).

2 concurrent terms of imprisonment, the longest of which was 150 months, for possession of a machine

gun, possession of an unregistered firearm silencer, and attempted manufacture of methamphetamine,

in violation of 18 U.S.C., §§ 922(o), 924(a); 26 U.S.C. §§ 5861(d), 5871; and 21 U.S.C. §§

841(a)(1) and 846.

While in prison, Holcombe completed the Bureau of Prison’s (“BOP”) 500-hour residential

drug abuse program (“drug program”) in hopes of receiving a sentence reduction under 18 U.S.C.

§ 3621(e)(2)(B) 1 after successfully completing the program. The Bureau staff based its determination

of whether Holcom

be was eligible for a sentence reduction on the version of the BOP Program

Statement 5330.10 in effect at the time, which stated that an inmate was eligible to be considered for

a sentence reduction “unless the inmate’s current offense is determined to be a crime of violence as2 Program Statement 5162.02 became effective on July 25, 1995.

3 The BOP issued Change Notice CN-01 to clarify the definition of “crimes of violence”

used in Program Statement 5162.02.

4 Drug Abuse Treatment and Intensive Confinement Center Programs: Early Release

Consideration, 62 Fed. Reg. 53,690 (Oct. 15, 1997) (partially codified at 28 C.F.R. § 550.58).

3 defined in 18 U.S.C. 924(c)(3).” At the time, Program Statement 5162.02, 2 which elaborated on the

definit io n of “crime of violence”, did not include the offenses for which Holcombe was convict ed

among those enumerated as crimes of violence. On November 21, 1995, the BOP notified Holcombe

that he was eligible for a sentence reduction under § 3621(e)(2)(B).

In October 2001, the BOP notified Holcombe that he was no longer eligible for early release

consideration because of a modification to 28 C.F.R. 550.58 that occurred on April 23, 1996, 3 which

explained that certain categories of prisoners would not be considered for early release, including

“inmates whose current offense is a felony

. . . that involved the carrying, possession or use of a

firearm or other dangerous weapon.” 4 As a result, he was no longer eligible for a sentence reduction.

Holcombe exhausted his administrative remedies with the BOP on March 7, 2002. After the

BOP denied him administrative relief, Holcombe filed a § 2241 petition against the Warden of the

Federal Medical Center, L.E. Fleming (“Fleming”) in May 2002, seeking early release. Fleming filed

a motion to dismiss on June 27, 2002. Instead of ruling on the motion to dismiss, the district court

denied Holcombe’s petition on June 28, 2002. Holcombe timely filed a notice of appeal.

II. STANDARD OF REVIEW

When reviewing the district court’s denial of a habeas petition, this Court reviews the district

court’s determinations of law de novo and its findings of fact for clear error. Warren v. Miles

, 230

F.3d 688, 691 (5th Cir. 2000).5 Specifically, this Court found that because bank robbery includes as a necessary element

the use of “force and violence”, it was always a crime of violence under § 924(c)(3)’s definition.

Royal , 141 F.3d at 602. As such, Royal was never legitimately eligible for a sentence reduction

under § 3621(e)(2)(B), regardless of the impact of Change Notice CN-01 upon his sentence. Id.

Two recent Sentencing Guidelines cases have ruled that weapon possession is not a crime

of violence under § 16(b), which includes the same definition of crime of violence as that stated in

§ 924(c)(3). See, e.g., United States v. Medina-Anicacio , No. 01-41171, 2003 WL 1469384 (5th

Cir. Mar. 24, 2003) (possession of a concealed dagger); United States v. Diaz-Diaz , No. 02-

4 III. DISCUSSION

On appeal, Holcombe argues that when the BOP found him eligible for a sentence reduction

in November 1995, it granted him a liberty interest in an early release. Moreover, he maintains that

because his offense was not listed as a disqualified “crime of violence” in November 1995, it violated

due process and the Ex Post Facto clause to retroactively apply the BOP’s later modifications to the

“crime of violence” definition to him. We disagree and affirm.

A. Liberty Interest

In asserting that the BOP granted him a liberty interest when it init ially determined him to be

eligible for early release in November 1995, Holcombe relies on the Ninth Circuit’s decision in Cort

v. Crabtree

, 113 F.3d 1081 (9th Cir. 1997). In that case, the Ninth Circuit held that once the BOP

made a determination that an inmate was eligible for a sentence reduction under § 3621(e)(2)(B), the

agency could not later retroactively apply its policy change which reversed the inmate’s eligibilit y.

Id. at 1086. The Court held that, based on B owen v. Georgetown University Hospital

, 488 U.S. 204

(1988), the BOP’s new definition of “crime of violence” could not app ly ret ro actively to inmates

“already in the treatment program on the date of its adoption,” or to those inmates who the BOP had

already found eligible. C

ort

, 113 F.3d at 1086. This Court has previously explicitly declined to adopt

this view in Royal v. Tombone , 141 F.3d 596, 601 (5th Cir. 1998). 520392, 2003 WL 1785764 (5th Cir. Apr. 3, 2003) (possession of a short-barrel firearm).

However, these cases do not constrain the question before us. In Venegas v. Henman , 126 F.3d

760 (5th Cir. 1997), this Court ruled that the BOP was not bound in its exercise of discretion

under § 3621(e)(2)(B) to rely on case law defining “crime of violence” in the criminal sentencing

context. Id. at 762. Because we reach our decision today on grounds other than the crime of

violence issue, we do not address whether “possession of a firearm” has always been a crime of

violence under the BOP’s guidelines.

5 As this Court noted in Welch v. Thompson

, 20 F.3d 636, 639-40 (5th Cir. 1994), “[i]n the

prison context, a state creates a protected liberty interest when it limit s official discretion in approving

or denying an inmate’s request or eligibility for a prison program. If the prison officials have wide

authority a nd discret io n, usually no liberty interest is at stake.” Typically, this Court examines

whether the language in the statute is mandatory—i.e., the prisoner “shall” be eligible—in determining

whether a statute has created a liberty interest. I d. at 640 n.12. The Supreme Court’s examination

of the BOP’s broad discretion with regard to § 3621(e)(2)(B) is instructive in this case:

Congress’ use of the permissive “may” in § 3621(e)(2)(B) contrasts with legislators’

use of “shall” in the very same section. Elsewhere in § 3621, Congress used “shall”

to impose discretionless obligations, including the obligation to provi de drug

treatment when funds are available.

Lopez v. Davis

, 531 U.S. 230, 241 (2001); see also, Warren

, 230 F.3d at 693; Wottlin v. Fleming

,

136 F.3d 1032, 1036 (5th Cir. 1998). Accordingly, the Court found that when an eligible inmate

successfully completes the drug program, the BOP “has the authority, but not the duty

, both to alter

the prisoner’s confinement and to reduce his term of imprisonment.” I d. (emphasis added). In

addressing the BOP’s authority under § 3621, this Court has found that the BOP has a large measure

of discretion. Venegas , 126 F.3d at 765.

Because of the broad discretion afforded to the BOP under § 3621(e)(2)(B), we find that the6

BOP did not grant Holcombe a liberty interest when it init ially f o und him eligible for a sentence

reduction. It is noteworthy that the BOP never affirmatively granted Holcombe a reduct ion in his

sentence—it only found him eligible for a reduction. “Eligibility is not entitlement.” B ellis v. Davis

,

186 F.3d 1092, 1094 (8th Cir. 1999) (quoting Bush v. Pitzer , 133 F.3d 455, 457 (7th Cir. 1997)).

Thus, he cannot succeed on his liberty interest claim.

B. Ex Post Facto Violation

Holcombe also cannot prevail on his Ex Post Facto claim. A law is e x post facto if it “assigns

more disadvantageous criminal or penal consequences to an act than did the law in place when the

act occurred.” Royal , 141 F.3d at 603 (quoting Weaver v. Graham

, 450 U.S. 24, 30 n.13 (1981))

(internal quotati ons omitted). Holcombe committed his offenses in August 1992, and was sentenced

in May 1993. Subsection (e) of § 3621, which creat ed t he program giving the BOP discretion to

reduce the sentences of eligible prisoners wh o complete the drug program , was not enacted unti l

September 13, 1994. Because the sentence reduction program was not enacted until well after

Holcombe committed his offense of possession of a machine gun, th ere was no possibility of a

reduct io n in his sentence on this basis. Consequently, his ineligibility for the reduction does not

render Program Statement 5126.02, as modified by Change Notice CN-01, “more onerous than the

law in effect on the date of the offense,” as is required for an ex post facto violation. I d. Therefore,

we find that the application of Program Statement 5126.02, as modified by Change Notice CN-01,

to Holcombe did not violate the Ex Post Facto Clause.

IV. CONCLUSION

For the foregoing reasons, we find that the BOP did not grant Holcombe a libert y interest

when it init ially found him eligible for a sentence reduction, an d t hat it did not violate the Ex Post7

Facto Clau se when it retroactively applied Program Statement 5126.02, as modified by Change

Notice CN-01, in finding that he was not eligible for a sentence reduction. Therefore, we AFFIRM

the judgment of the district court.