IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-50636 

_____________________

DAVID WOTTLIN,

Petitioner-Appellant,

v.

LESTER E FLEMING, Warden,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas 

_________________________________________________________________

March 23, 1998

Before KING, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:

Petitioner-Appellant David Wottlin appeals the district

court’s dismissal of his 28 U.S.C. § 2241 habeas petition

challenging the Bureau of Prisons’ application of 28 C.F.R.

§ 550.58 to him and thereby rendering him ineligible for early

release following his successful completion of a drug-abuse

treatment program while in custody. We affirm the judgment of

the district court.

I. FACTUAL & PROCEDURAL BACKGROUND

In 1993, Petitioner-Appellant David Wottlin was convicted of

possession of methamphetamine with intent to distribute, and he

was sentenced to seventy months in prison. In April 1994,
2

Wottlin began a comprehensive drug-abuse treatment program (the

Program) at the Federal Correctional Institution in Bastrop,

Texas (FCI Bastrop). He asserts that before he entered the

Program, FCI Bastrop officials indicated that if he completed it

he would be eligible for early release pursuant to pending

legislation that they believed Congress would soon pass. Wottlin

admits, however, that subsection (e) of 18 U.S.C. § 3621, which

authorized discretionary early release for prisoners that have

completed a comprehensive drug-abuse treatment program, was not

added to the statute until after he entered the Program. See 18

U.S.C. § 3621(e).

Wottlin completed the Program in March 1995, and Bureau of

Prisons (BOP) officials thereafter denied his request for early

release, explaining that he was not eligible because a new BOP

regulation, enacted pursuant to § 3621(e), provided that an

inmate who has “a prior conviction for homicide, forcible rape,

robbery, or aggravated assault” was not eligible for early

release under § 3621(e). 28 C.F.R. § 550.58. Wottlin was

convicted of armed robbery in 1965.

Thereafter, Wottlin filed a § 2241 petition challenging the

BOP’s refusal to grant him early release. He contended that he

was entitled to be released one year early pursuant to

§ 3621(e)(2)(B) and that the BOP, by enacting 28 C.F.R. § 550.58,

which excluded him from eligibility for early release, had

violated his constitutional rights under the Equal Protection,

Due Process, and Ex Post Facto Clauses. He also argued that
 

1 On September 8, 1997, Wottlin was released to the

Cornell Corrections Halfway House in Houston, Texas. For

purposes of habeas relief, Wottlin remains “in custody.” Cf. Ojo

v. INS, 103 F.3d 680, 681 (1997) (finding that a prisoner who is

within a term of supervised release remains in custody for

purposes of habeas relief). Wottlin seeks a one-year reduction

in his three-year term of supervised release. 

3

§ 550.58 represented an erroneous administrative interpretation

of § 3621(e).

Without requiring Respondent-Appellee Warden Lester Fleming

to answer, a magistrate judge issued a report recommending that

Wottlin’s petition be dismissed, finding that the BOP had not

abused its discretion in promulgating regulations construing

§ 3621(e) to exclude inmates who had previously been convicted of

certain violent felonies from early-release eligibility. The

magistrate judge also concluded that Wottlin’s constitutional

challenges were meritless. 

Wottlin thereafter filed objections to the magistrate

judge’s recommendation, but the district court adopted the

recommendation and dismissed Wottlin’s petition. Wottlin timely

filed notice of appeal, and the magistrate judge granted him

permission to proceed in forma pauperis.1

II. DISCUSSION

Wottlin raises several issues on appeal. First, he argues

that the BOP’s interpretation of 18 U.S.C. § 3621(e)(2)(B), as

embodied in 28 C.F.R. § 550.58, is incorrect and an abuse of

discretion. Second, he raises three challenges to the

application of § 550.58 to him, claiming that it violates his
4

rights to due process and equal protection, and that it violates

the Ex Post Facto Clause of the Constitution. 

A. Promulgation of 28 C.F.R. § 550.58 

Wottlin first argues that the BOP’s interpretation of 18

U.S.C. § 3621(e)(2), as embodied in 28 C.F.R. § 550.58, is an

abuse of discretion. He contends that in reviewing this issue

the district court improperly bypassed the first step of the

analysis required by the Supreme Court’s decision in Chevron

U.S.A., Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S.

837 (1984), because it failed to acknowledge that the plain

language of the statute made him eligible for early release. In

addition, he asserts that § 3621(e) did not permit the BOP to

apply its regulation to him retroactively and thereby revoke his

eligibility for early release. Finally, he argues that the

Administrative Procedure Act (APA), 5 U.S.C. § 551(4), (6), bars

the retroactive application of 28 C.F.R. § 550.58.

Wottlin’s argument relies on subsection (e) of § 3621, which

was enacted as part of the Violent Crime Control and Law

Enforcement Act of 1994, and which he claims entitles him to

early release:

(A) Generally.--Any prisoner who, in the judgment of

the Director of the [BOP], has successfully completed a

program of residential substance abuse treatment

provided under paragraph (1) of this subsection, shall

remain in the custody of the [BOP] under such

conditions as the [BOP] deems appropriate. . . .

(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 [BOP], but such reduction may not be
5

more than one year from the term the prisoner must

otherwise serve.

18 U.S.C. § 3621(e)(2). Effective May 25, 1995, the BOP issued

regulations governing substance-abuse treatment programs which

state that an inmate 

who completes a residential drug abuse treatment

program . . . during his or her current commitment may

be eligible . . . for early release by a period not to

exceed 12 months. The following categories of inmates

are not eligible: . . . inmates who have a prior

conviction for homicide, forcible rape, robbery, or

aggravated assault. 

28 C.F.R. § 550.58.

We review regulations such as § 550.58 under the two-step

standard set out by the Supreme Court in Chevron: We look first

to the intent of Congress, and if it 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, 467 U.S. at 842-43. If, however, we find that the

language of the statute is ambiguous or silent on a particular

issue, then we turn to the second step of our analysis and “the

question for the court is whether the agency’s answer is based on

a permissible construction of the statute.” Id. at 843. If the

agency’s interpretation is reasonable, the court will defer to

its legislative regulations unless they are “arbitrary,

capricious, or manifestly contrary to the statute.” Id. at 844.

Wottlin contends that the plain language of § 3621(e)(2)(B)

is unambiguous in that it makes inmates whose current convictions

are for nonviolent offenses eligible for sentence reductions. In

fact, the plain language of § 3621(e)(2)(B) states only that the
6

sentence of a prisoner convicted of a “nonviolent offense” who

has completed a drug-abuse treatment program “may be reduced by

the Bureau of Prisons.” 28 U.S.C. § 3621(e)(2)(B) (emphasis

added). Thus, § 3621(e)(2)(B) explicitly leaves sentence

reductions to the discretion of the BOP. 

Wottlin next argues that the BOP must exercise its

discretion individually as to each and every inmate whose

sentence “may be reduced” under § 3621(e)(2)(B). This argument

ignores the possibility that Chevron permits the BOP to exercise

its discretion as to categories of inmates by eliminating them

from consideration in a properly-promulgated regulation such as

§ 550.58.

Although this case presents an issue of first impression in

this circuit, at least two other circuits have considered it and

have concluded that § 550.58 is a reasonable regulation. See

Stiver v. Meko, 130 F.3d 574 (3d Cir. 1997); Jacks v. Crabtree,

114 F.3d 983 (9th Cir. 1997), petition for cert. filed, 66

U.S.L.W. __ (U.S. Jan. 7, 1998) (No. 97-7393). In Jacks, the

Ninth Circuit reasoned that nothing in § 3621(e)(2)(B) requires

the BOP to limit eligibility criteria to only the current offense

of conviction. 114 F.3d at 984. In addition, the court noted

that the “may be reduced” language in § 3621(e)(2)(B) affords the

BOP “broad discretion” to grant or deny the reduction and that

§ 3621(e)(2)(A) states that a prisoner who completes a drug-abuse

treatment program “‘shall remain in the custody of the [BOP]

under such conditions as the [BOP] deems appropriate.’” Id.
7

(quoting 18 U.S.C. § 3621(e)(2)(A)). The court therefore

concluded that in promulgating § 550.58 the BOP simply “exercised

its discretion to promulgate a reasonable rule of general

applicability which is perfectly consistent with the statutory

scheme.” Id. at 986. Similarly, in Stiver, the Third Circuit

explained that 

[t]he [BOP] in the exercise of its discretion in

administering the early release element of the

residential drug abuse treatment program, has imposed

an additional qualification: prisoners’ non-conviction

of certain enumerated past violent offenses, in

addition to the requirement that the present conviction

be for a non-violent offense. It was not attempting

to, and has not interpreted the phrase “convicted for a

violent offense” in a manner at odds with Congress’s

intended meaning . . . .

130 F.3d at 577.

We agree with the Ninth and Third Circuits’ analysis of this

issue, and we therefore find that the BOP did not abuse its

discretion in promulgating 28 C.F.R. § 550.58, thereby precluding

Wottlin from obtaining an early release pursuant to § 3621(e). 

B. Constitutional Claims

Wottlin raises three constitutional claims, arguing that the

application of § 550.58 to him deprives him of his rights to due

process and equal protection and that it violates the Ex Post

Facto Clause. We address each of these claims in turn.

Wottlin first contends that BOP Program Statement 5330.10

contains “mandatory” language that grants him a due-process

liberty interest in early release. This claim lacks merit. “A

regulation may create a protected liberty interest if it uses

mandatory language to place a substantive limit on official
8

discretion.” United States v. Tubwell, 37 F.3d 175, 179 (5th

Cir. 1994) (citing Olim v. Wakinekona, 461 U.S. 238, 249 (1983)). 

Although Wottlin does identify mandatory language in Program

Statement 5330.10, it relates to the procedures for implementing

the Program. Wottlin identifies no portions of Program Statement

5330.10 that mandate the granting of an early release to an

inmate who completes the Program. Moreover, § 550.58, which

governs eligibility for early release, expressly provides that

certain categories of inmates--including those, like Wottlin,

with previous robbery convictions--are not eligible. 28 C.F.R.

§ 550.58; cf. Jacks, 114 F.3d at 986 n.4 (rejecting a

petitioner’s similar claim that § 3621(e)(2)(B) creates a due

process liberty interest).

Wottlin next contends that § 550.58’s exclusion of him from

eligibility for early release violates his right to equal

protection because “he is being treated differently than other

similarly situated prisoners who have been granted sentence

reduction eligibility and consequently sentence reduction.” 

Wottlin argues that § 550.58 should be subjected to strict

scrutiny because it denies him a fundamental right and because,

“[f]or purposes of sentence reduction eligibility, . . . [it]

create[s] two classes of persons.” This argument lacks merit.

Strict scrutiny is appropriate only where a government

classification implicates a suspect class or a fundamental right. 

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440

(1985). A classification that categorizes inmates based on the
9

type of criminal offenses for which they have been convicted does

not implicate a suspect class. See Smallwood v. Johnson, 73 F.3d

1343, 1351 (5th Cir.), cert. denied, 117 S. Ct. 212 (1996). A

“fundamental right,” for purposes of equal protection analysis,

is one that is “among the rights and liberties protected by the

Constitution.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411

U.S. 1, 29 (1973). A convicted prisoner does not have a

constitutional right to be released before the expiration of a

valid sentence. Cf. Greenholz v. Inmates of the Neb. Penal &

Correctional Complex, 442 U.S. 1, 7 (1979). Thus, as strict

scrutiny is not appropriate, we review § 550.58 under the more

lenient “rational basis” standard, and we will uphold it if we

find that it is rationally related to a legitimate governmental

interest. Smallwood, 73 F.3d at 1351. 

As the Ninth Circuit explained in addressing a similar

challenge to § 550.58’s use of a categorical rule, “By

promulgating a reasonable categorical rule, the [BOP] ensures

predictability and consistency in administration of the one-year

sentence reduction program. Were the [BOP] precluded from

issuing such rules to guide its discretion, petitioners would no

doubt complain about the [BOP’s] standardless decisionmaking.” 

Jacks, 114 F.3d at 986; see also id. at 986 n.5 (noting that the

BOP explained § 550.58 by stating that, “‘[b]ecause state

convictions may show a considerable range in the degree of

violence used in the offense, the [BOP] has chosen to use . . .

categories of crimes, which are reported under the FBI Violent
10

Crime Index, as the sole determinant of violence in the criminal

history.’” (quoting Drug Abuse Treatment Programs: Early Release

Consideration, 60 Fed. Reg. 27,692 (May 25, 1995)) (first set of

brackets in original)). We think that the use of such categories

to create a uniform rule is rationally related to the legitimate

governmental interest of preventing the early release of

potentially violent inmates, and we therefore find that the

application of § 550.58 to Wottlin does not violate his right to

equal protection.

Lastly, Wottlin claims that the BOP’s application of

§ 550.58 to him violates the Ex Post Facto Clause of the

Constitution. He contends that § 550.58 is retroactive as

applied to him because, until the time that he completed the

Program, the BOP determined sentence reduction eligibility under

§ 3621(e) based on whether an inmate’s current sentence was the

result of a conviction for a crime of violence.

The Supreme Court has indicated that “the constitutional

prohibition on ex post facto laws applies only to penal statutes

which disadvantage the offender affected by them.” Collins v.

Youngblood, 497 U.S. 37, 41 (1990). More recently, the Court has

clarified the ex post facto inquiry, stating that 

the focus of the ex post facto inquiry is not on

whether a legislative change produces some ambiguous

sort of “disadvantage,” nor . . . on whether an

amendment affects a prisoner’s “opportunity to take

advantage of provisions for early release,” but on

whether any such change alters the definition of

criminal conduct or increases the penalty by which a

crime is punishable.
11

California Dep’t of Corrections v. Morales, 514 U.S. 499, 506 n.3

(1995) (citation omitted).

Wottlin nevertheless contends that the Supreme Court’s

decision in Lynce v. Mathis, 117 S. Ct. 891 (1997), indicates

that application of § 550.58 to him would violate the Ex Post

Facto Clause. In Lynce, the Supreme Court determined that a 1992

Florida statute that canceled early-release credits for certain

classes of offenders after the credits had been awarded and after

the petitioner had been released from custody violated the Ex

Post Facto Clause. See id. at 898. The Court explained that the

statute “did more than simply remove a mechanism that created an

opportunity for early release for a class of prisoners whose

release was unlikely; rather it made ineligible for early release

a class of prisoners who were previously eligible--including

some, like [the] petitioner, who had actually been released.” 

Id. Wottlin argues that, like the petitioner in Lynce, he was

made ineligible for early release where he was previously

eligible. 

Pursuant to § 3621(e)(2)(B), Wottlin’s eligibility for the

early release program has always been subject to the discretion

of the BOP. See 18 U.S.C. § 3621(e)(2)(B) (“The period a

prisoner convicted of a nonviolent offense remains in custody

after successfully completing a treatment program may be reduced

by the [BOP] . . . .” (emphasis added)). Section 550.58 is

merely a categorical determination by the BOP that it will not

exercise that discretion in the case of inmates with a prior
12

conviction for certain specified crimes. Cf. Hallmark v.

Johnson, 118 F.3d 1073, 1079 (5th Cir.) (declining to extend

Lynce to invalidate a Texas directive removing a corrections

official’s discretion to restore good-time credits forfeited for

prison violations and noting that the fact that the official

previously had discretion as to whether to restore credit

constituted fair warning that forfeited credits might not be

restored at all), cert. denied sub nom., 118 S. Ct. 576 (1997). 

In contrast, Lynce concerned a change in the applicable statute

making the petitioner ineligible for the good-time credits at

issue, causing the retroactive removal of the good-time credits

that the petitioner had already been awarded, and directing the

re-arrest of the petitioner subsequent to his early release. 117

S. Ct. at 898.

Although the question of whether the application of § 550.58

to a prisoner who underwent drug treatment prior to its

promulgation violates the Ex Post Facto Clause is a question of

first impression in this circuit, in Stiver the Third Circuit

determined that the application of § 550.58 to an inmate in

precisely the same situation presented in this case did not

violate the Ex Post Facto Clause. The court explained,

Stiver suffers no disadvantage as a result of the

regulation. His sentence began in 1992, before section

3621(e)(2)(B) was enacted. At that time he could not

have been eligible for a one-year sentence reduction

for completing a substance abuse program, because the

enabling statute did not yet exist. Today, under 28

C.F.R. § 550.58, he is still ineligible for sentence

reduction. The fact that he arguably was eligible for

early release during the period between the enactment
13

of section 3621(e)(2)(B) and the Bureau’s adoption of

28 C.F.R. § 550.58 is irrelevant.

Stiver, 130 F.3d at 578. We agree with the conclusion reached in

Stiver. Not only was Wottlin convicted prior to the addition of

subsection (e) to § 3621, but he also entered the Program

approximately five months prior to its enactment. Moreover,

although Wottlin may have been eligible to seek early release

during the interim between the enactment of § 3621(e) and the

promulgation of § 550.58, whether he was actually granted early

release was always left, by the terms of § 3621(e), to the broad

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

promulgating § 550.58, the BOP has exercised that discretion, and

the reasonable exercise of properly delegated discretion in this

manner did not constitute a violation of the Ex Post Facto

Clause. 

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.