REVISED, June 5, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-10941

_____________________

TALFORD H ROYAL,

Petitioner-Appellant,

v.

JOHN TOMBONE, Warden, Federal Correctional Institution

Seagoville, Texas,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas 

_________________________________________________________________

June 3, 1998

Before KING, SMITH, and STEWART, Circuit Judges.

PER CURIAM:

Petitioner-appellant Talford H. Royal appeals the district

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

challenging the Bureau of Prisons’ determination that he was not

eligible for a sentence reduction following his successful

completion of a drug-abuse treatment program while in custody. 

We affirm.

I. FACTUAL & PROCEDURAL BACKGROUND

On April 18, 1994, petitioner-appellant Talford H. Royal

robbed a Bank One branch in Dallas, Texas. Royal subsequently

pled guilty to bank robbery in violation of 18 U.S.C. § 2113(a),
2

and the district court sentenced him to sixty-three months of

imprisonment.

On September 6, 1994, Royal enrolled in a residential drugabuse treatment program at the federal correctional institute in

El Reno, Oklahoma (FCI El Reno). He successfully completed the

program, and he claims that the Bureau of Prisons (BOP) granted

him a one-year sentence reduction pursuant to 18 U.S.C.

§ 3621(e). Thereafter, the BOP issued Change Notice CN-01 to

Program Statement 5162.02, which classified bank robbery as a

“crime of violence,” thereby making Royal ineligible for a

sentence reduction under § 3621(e). Royal contends that the BOP

then revoked the sentence reduction that it had already granted

to him.

Royal filed a petition for habeas corpus relief pursuant to

28 U.S.C. § 2241, contending that the revocation of his one-year

sentence reduction based on the newly-issued Change Notice CN-01

amounted to a violation of his constitutional rights under the

Due Process and Ex Post Facto Clauses. In addition, Royal

claimed that Program Statement 5162.02, as modified by Change

Notice CN-01, was invalid because it was not promulgated in

accordance with the Administrative Procedure Act (APA), 5 U.S.C.

§ 552, and, alternatively, that even if it was valid, it should

not have been applied to him retroactively. The government

answered and conceded that Royal had exhausted his administrative

remedies. Both parties thereafter agreed to a proceeding before

a magistrate judge.
 

1 Royal submitted to the court a computer print-out dated

January 25, 1996 that stated, “The inmate is projected for

release: 11-13-1997 VIA 3621E CMPL.” The government submitted a

similar print-out dated February 12, 1997 that indicated that

Royal’s projected release date was November 13, 1998. The

magistrate judge noted that there was “at least some indication

that the [BOP] considered a one-year sentence reduction” for

Royal’s participation in the treatment program.

 

2 Although the magistrate judge did not address this

issue in his Memorandum Opinion, Royal included it in his

3

The magistrate judge noted that it was unclear from the

parties’ evidence whether the BOP had ever granted Royal a oneyear sentence reduction.1 Nevertheless, he concluded that Royal

had failed to show the deprivation of a liberty interest even if

it was assumed that he was granted a one-year reduction because

the granting of sentence reductions to eligible inmates pursuant

to § 3621(e) is left, by the terms of the statute, to the

discretion of the BOP. The magistrate judge also concluded that

Royal had failed to show that the BOP’s action amounted to a

breach of contract or an ex post facto violation. Accordingly,

the magistrate judge denied Royal’s § 2241 petition. Royal

timely filed a notice of appeal.

II. STANDARD OF REVIEW

In the context of a § 2241 petition, this court “reviews the

district court’s determinations of law de novo and its findings

of facts for clear error.” Venegas v. Henman, 126 F.3d 760, 761

(5th Cir. 1997).

III. DISCUSSION

Royal contends that Change Notice CN-01 is invalid because

it was not promulgated pursuant to the rules of the APA.2 He
original petition and has therefore preserved the claim for

review.

 

3 In addition, Royal’s summary section and issue headings

contain conclusory claims that the BOP’s action in denying him a

sentence reduction violated his rights under the Equal Protection

Clause. However, this issue is not discussed in the body of his

brief, and Royal did not argue it before the magistrate judge; we

therefore consider the issue waived and decline to address it. 

See United States v. Valdiosera-Godinez, 932 F.2d 1093, 1099 (5th

Cir. 1991).

 

4 Royal’s argument actually discusses only the

application of Program Statement 5162.02 to him. However, it was

the application of Program Statement 5162.02, as modified by

Change Notice CN-01, that resulted in the BOP’s determination

that he was ineligible for the sentence reduction. As we

construe the submissions of pro se litigants broadly in deference

to their status, we read Royal’s arguments to include an attack

on the application of Program Statement 5162.02, as modified by

Change Notice CN-01, to him. See Maleng v. Cook, 490 U.S. 488,

493 (1989); Pleasant v. Texas, 134 F.3d 1256, 1258 (5th Cir.

1998).

4

further argues that even if it is valid, the BOP’s grant and

subsequent revocation of a one-year sentence reduction violated

his constitutional rights as guaranteed by the Ex Post Facto and

Due Process Clauses,3 that it constituted a breach of contract,

and that Program Statement 5162.02, as modified by Change Notice

CN-01,4 should not be applied to him retroactively. The

government responds that Royal’s rights were not violated because

at all times the decision of whether or not to grant an early

release was left to the discretion of the BOP. After providing a

brief explanation of the statutes and regulations at issue, we

address each of Royal’s arguments in turn.

Subsection (e)(2) of § 3621, which was enacted as part of

the Violent Crime Control and Law Enforcement Act of 1994,

states:
5

(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

more than one year from the term the prisoner must

otherwise serve.

18 U.S.C. § 3621(e)(2) (emphasis added).

Effective May 25, 1995, the BOP published regulations

governing substance abuse treatment 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 whose current offense

is determined to be a crime of violence as defined in

18 U.S.C. 924(c)(3), inmates who have a prior

conviction for homicide, forcible rape, robbery, or

aggravated assault, . . . .

28 C.F.R. § 550.58. On July 24, 1995, the BOP issued Program

Statement 5162.02, which classified bank robbery as an offense

that, depending on the “specific offense characteristic

assigned,” might fall within the definition of “crime of

violence” and thereby render an inmate ineligible for a sentence

reduction under § 3621(e). FEDERAL BUREAU OF PRISONS, U.S. DEP’T OF

JUSTICE, PROGRAM STATEMENT NO. 5162.02, Definition of Term, “Crimes of

Violence” § 9 (July 24, 1995) [hereinafter PROGRAM STATEMENT

5162.02]. On April 23, 1996, the BOP altered Program Statement

5162.02 by issuing Change Notice CN-01, which stated that bank

robbery should always be considered a “crime of violence.” 
6

FEDERAL BUREAU OF PRISONS, U.S. DEP’T OF JUSTICE, PROGRAM STATEMENT NO.

5162.02, CHANGE NOTICE NO. CN-01, Definition of Term, “Crimes of

Violence” § 11 (Apr. 23, 1996) [hereinafter CHANGE NOTICE CN-01].

A. Program Statement 5162.02 & Change Notice CN-01

Royal first argues that Program Statement 5162.02, as

modified by Change Notice CN-01, is invalid because Change Notice

CN-01 was not promulgated in accordance with the APA. 

Regulations promulgated in accordance with the APA are entitled

to a significant amount of deference from a reviewing court. See

Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467

U.S. 837, 843-44 (1984). 

Less formally produced regulations such as Program Notice

5162.02 and Change Notice CN-01 are internal agency guidelines

and are therefore “akin to . . . ‘interpretive rule[s]’ that

‘do[] not require notice and comment.’” Reno v. Koray, 515 U.S.

50, 61 (1995) (quoting Shalala v. Guernsey Mem. Hosp., 514 U.S.

87, 99 (1995)). As such, they are promulgated internally and may

be altered at will by the BOP, Jacks v. Crabtree, 114 F.3d 983,

985 n.1 (9th Cir. 1997), cert. denied, 118 S. Ct. 1196 (1998),

and they therefore are entitled to less deference than APA

regulations. However, the Supreme Court has indicated that

Program Statements are “still entitled to some deference” and

will be upheld if they constitute a “‘permissible construction of

the statute’” that they interpret. Reno, 515 U.S. at 61 (quoting

Chevron, 467 U.S. at 843). Thus, we must consider whether

Program Statement 5162.02, as modified by Change Notice CN-01, is
7

a permissible interpretation of 18 U.S.C. § 924(c)(3), the

statute it addresses. 

 Section 924(c)(3) defines a “crime of violence” in the

following manner:

(3) For purposes of this subsection the term

“crime of violence” means an offense that is a felony

and--

(A) has as an element the use, attempted use,

or threatened use of physical force against the

person or property of another, or

(B) that by its nature, involves a

substantial risk that physical force against the

person or property of another may be used in the

course of committing the offense.

18 U.S.C. § 924(c)(3).

The United States Code defines the crime of bank robbery as

follows:

(a) Whoever, by force and violence, or by

intimidation, takes, or attempts to take, from the

person or presence of another, or obtains or attempts

to obtain by extortion any property or money or any

other thing of value belonging to, or in the care,

custody, control, management, or possession of, any

bank, credit union, or any savings and loan

association; . . .

. . .

Shall be fined under this title or imprisoned not

more than twenty years, or both.

18 U.S.C. § 2113(a).

Program Statement 5162.02, as modified by Change Notice CN01, states: 

With regard to the specific crime of bank robbery, the

offense should be considered a crime of violence

pursuant to section 924(c)(3) since, due to the

circumstances surrounding bank robberies, the offense

involves an explicit or implicit threat of force and
8

thus has as an element the “threatened use of physical

force against the person or property of another.”

CHANGE NOTICE CN-01, supra, § 11. Based on our reading of

§ 924(c)(3) and § 2113(a), we conclude that Program Statement

5162.02, as modified by Change Notice CN-01, constitutes a

permissible interpretation of § 924(c)(3).

B. Substantive Claims

Royal next contends that Program Statement 5162.02, as

modified by Change Notice CN-01, should not be applied to him

retroactively. He relies on the Ninth Circuit’s recent decision

in Cort v. Crabtree, 113 F.3d 1081 (9th Cir. 1997). In Cort, the

petitioners had, like Royal, been convicted of bank robbery and

had completed the BOP’s drug treatment program. Id. at 1082-83. 

Prior to the issuance of Change Notice CN-01, the BOP informed

the petitioners that they were eligible for sentence reductions

pursuant to § 3621(e). Id. After the BOP modified Program

Statement 5162.02 through the issuance of Change Notice CN-01,

however, it informed the petitioners that they were ineligible

for a sentence reduction. Id. at 1083. 

The Cort petitioners filed habeas corpus petitions pursuant

to 28 U.S.C. § 2241, challenging the retroactive application of

Program Statement 5162.02, as modified by Change Notice CN-01, to

them after the BOP previously had determined that they were

eligible for sentence reductions. Id. The government, while

refusing to argue that the BOP exceeded its authority in adopting

the initial version of Program Statement 5162.02, contended that
9

bank robbery is necessarily a crime of violence under the law of

the Ninth Circuit. Id. at 1085-86. The government therefore

argued that, 

because the [BOP’s] initial interpretation of

“nonviolent offenses” as including certain instances of

unarmed bank robbery constituted an error of law, the

[BOP] may now disregard the eligibility determinations

that it rendered pursuant to that interpretation, and

may view the subsequent revocation of appellants’

eligibility determinations on the basis of its new

interpretation as the mere correction of a mistake.

Id. 

The court agreed that circuit precedent interpreting the

Sentencing Guidelines indicated that bank robbery could not

constitute a “nonviolent offense,” but it nevertheless held that

the BOP’s new definition of a “crime of violence” contained in

Program Statement 5162.02, as modified by Change Notice CN-01, 

applies only to prisoners who had neither entered the

substance abuse treatment program nor received

favorable eligibility determinations as of the date of

its issuance. Accordingly, the [BOP] remains bound by

its initial determination that appellants are

statutorily eligible for sentence reduction under 18

U.S.C. § 3621(e)(2)(B), and it must now decide, within

its discretion, whether to grant the reduction.

Id. at 1086-87. 

We disagree with the Ninth Circuit’s resolution of this

issue. In order for Royal to prevail on a claim that Program

Statement 5162.02, as modified by Change Notice CN-01, was

erroneously used retroactively to render him ineligible for a

sentence reduction, Royal must show that he was legitimately

eligible for a sentence reduction prior to the issuance of Change

Notice CN-01. Assuming that Royal presented evidence sufficient
 

5 Royal’s Presentence Investigation Report includes the

following description of his offense conduct:

Royal . . . handed the [bank] teller a note which read,

“This is a hold up. Put all big bills in the bag and

you will not get hurt.” The teller looked at Royal

after reading the note and heard him say, “This is not

a joke. This is for real.” Royal also said, “Don’t

make any sudden moves,” and then motioned for the

teller to get the money. Royal then placed a bag on

the teller counter, again advising the teller not to

make any sudden moves and leaned onto the counter. 

Royal kept his right hand down near his waistband,

leading the teller to believe that he had a weapon. 

However, no weapon was ever observed. The teller then

placed money from her teller drawer into the bag, which

Royal took from her, along with the robbery demand note

and walked out of Bank One.

10

to show that the BOP granted him a sentence reduction pursuant to

the original version of Program Statement 5162.02, we must

consider whether that version’s interpretation of § 924(c)(3) is

a permissible one. 

Prior to Change Notice CN-01’s alteration of its terms,

Program Statement 5162.02 stated that bank robbery was a crime

that “may or may not have involved the use, attempted use, or

threat of force, or presented the substantial risk that force

might be used against the person or property of another.” See

PROGRAM STATEMENT 5162.02, supra, § 9. However, by definition, the

crime of bank robbery includes as a necessary element the use of

“force and violence” or “intimidation.” 18 U.S.C. § 2113(a). 

Royal does not dispute that he pled guilty to and was convicted

of bank robbery pursuant to § 2113(a).5 Under § 924(c)(3), a

“crime of violence” is one that “has as an element the use,

attempted use, or threatened use of physical force against the
 

6 Section 3621 (e)(2)(B) states that “the period a

prisoner convicted of a nonviolent offense remains in custody

after successfully completing a treatment program may be reduced

by the [BOP].” 18 U.S.C. § 3621(e)(2)(B) (emphasis added). 

Thus, § 3621(e) expressly leaves sentence reductions for inmates

convicted of nonviolent offenses to the discretion of the BOP. 

Chevron, 467 U.S. at 843-44 (“If Congress has explicitly left a

gap for the agency to fill, there is an express delegation of

authority to the agency to elucidate a specific provision of the

statute by regulation. Such legislative regulations are given

controlling weight unless they are arbitrary, capricious, or

manifestly contrary to the statute.”). In accordance with this

delegation, in order to clarify which prisoners’ sentences it

would consider reducing, the BOP promulgated 28 C.F.R. § 550.58. 

Section 550.58 indicates that inmates “whose current offense is

determined to be a crime of violence as defined in 18 U.S.C.

§ 924(c)(3)” are not eligible for sentence reduction pursuant to

§ 3621(e). 28 C.F.R. § 550.58. In Wottlin v. Fleming, 136 F.3d

1032, 1036 (5th Cir. 1998), we held that § 550.58 was a

reasonable interpretation of § 3621(e).

 

7 Our interpretation of the statutes and the regulation

at issue is bolstered by the fact that § 550.58 explicitly states

that “inmates who have a prior conviction for homicide, forcible

rape, robbery, or aggravated assault” are not eligible for

sentence reduction under § 3621(e). 28 C.F.R. § 550.58 (emphasis

added). It defies logic to create a rule that an inmate with a

prior conviction for robbery can never be eligible for sentence

reduction but an inmate serving a current conviction for bank

robbery may be eligible.

11

person or property of another.” 18 U.S.C. § 924(c)(3)(A). Thus,

according to § 924(c)(3)’s definition, which was referenced by

the BOP’s own published regulation, 28 C.F.R. § 550.58,6 Royal is

currently incarcerated for a “crime of violence” and therefore

is, and has always been, ineligible for a sentence reduction

pursuant to § 3621(e).7 For the foregoing reasons, we conclude

that Program Statement 5162.02’s original statement that an

inmate convicted of bank robbery might be eligible for a sentence

reduction pursuant to the provisions of § 3621(e) conflicted with
 

8 Our decision in this case makes no comment on the

validity of any other portion of Program Statement 5162.02’s

original version or of its current version (as modified by Change

Notice CN-01). We simply hold that Program Statement 5162.02’s

original classification of bank robbery convictions under 18

U.S.C. § 2113(a) was incorrect but that its amended

classification of the same crime is a permissible interpretation

of § 924(c)(3). Thus, our decision is not in conflict with our

previous holding in Venegas. 126 F.3d at 762 n.1, 765 (holding

that Program Statement 5162.02’s classification of violations of

18 U.S.C. § 922(g) and 21 U.S.C. § 841(a)(1) as violent offenses

was not erroneous as a matter of law).

 

9 Royal does not challenge the application of § 550.58 to

him, and in any event such a claim is foreclosed by circuit

precedent. See Wottlin, 136 F.3d at 1036.

12

§ 924(c)(3) and therefore was erroneous as a matter of law.8 As

any determination by the BOP that Royal was eligible for a

sentence reduction was erroneous, his actual status has not been

retroactively changed by the application of Program Statement

5162.02, as modified by Change Notice CN-01, to him.9 

Royal next argues that the BOP’s application of Program

Statement 5162.02, as modified by Change Notice CN-01, to him

violated the Constitution’s prohibition against ex post facto

laws because it had the effect of increasing his sentence by one

year. We disagree.

The Supreme Court has held that “two critical elements must

be present for a criminal or penal law to be ex post facto: it

must be retrospective, that is, it must apply to events occurring

before its enactment, and it must disadvantage the offender

affected by it.” Weaver v. Graham, 450 U.S. 24, 29 (1981)

(footnotes omitted). 

We note that a critical element of an ex post facto

violation is an absence of forewarning, that is, that
13

the change is unexpected. As the Supreme Court has

explained, “critical to relief under the ex post facto

Clause is not an individual’s right to less punishment,

but the lack of fair notice and governmental restraint

when the legislature increases punishment beyond that

[which] was perceived when the crime was consummated.”

Hallmark v. Johnson, 118 F.3d 1073, 1079 (5th Cir.) (quoting

Weaver, 450 U.S. at 30), cert. denied sub nom., 118 S. Ct. 576

(1997). Thus, a court considering whether a law is ex post facto

“is concerned solely with whether a statute assigns more

disadvantageous criminal or penal consequences to an act than did

the law in place when the act occurred.” Weaver, 450 U.S. at 30

n.13 (emphasis added).

Royal committed the bank robbery for which he was convicted

on April 18, 1994. Subsection (e) of 18 U.S.C. § 3621, which

created the program giving the BOP the discretion to reduce the

sentences of eligible prisoners who complete a comprehensive drug

abuse treatment program, was not enacted until September 13,

1994, nearly five months after Royal committed his offense. As

there was no possibility of a reduction in Royal’s sentence on

this basis at the time he committed the offense, the fact that he

is not eligible for the reduction does not render Program

Statement 5162.02, 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. Id. at 30-31; see also

Wottlin, 136 F.3d at 1038. Thus, Program Statement 5162.02, as

modified by Change Notice CN-01, does not violate the Ex Post

Facto Clause. 
 

10 The DAPS Program Agreement form, which is also part of

the record in this case, makes no mention of a guarantee of a

sentence reduction. Rather, it is focused on informing the

participant of the rules and regulations of the drug-treatment

program and on obtaining the participant’s consent for the

disclosure of information about his treatment to other agencies

for the purpose of developing a comprehensive drug-treatment

plan.

14

Royal next argues that the BOP’s classification of him as

ineligible for a sentence reduction under § 3621(e) violated his

rights under the Due Process Clause. As we have concluded that

Royal was not among the class of inmates (i.e., those not

convicted of “crimes of violence”) who were eligible for sentence

reduction, Royal’s due process claim necessarily fails because he

never had a legitimate liberty interest in the one-year sentence

reduction that he now seeks.

Finally, Royal contends that the BOP’s determination that he

was not eligible for a sentence reduction amounted to a breach of

contract. Assuming arguendo that this amounts to a claim that

Royal is being held in custody in violation of the laws or

Constitution of the United States as contemplated by 28 U.S.C.

§ 2241, which is doubtful, this argument lacks merit. As the

magistrate judge explained, Royal has offered no documents

establishing a contractual relationship between himself and the

BOP. Moreover, Royal attached to his habeas corpus petition a

document signed by Warden Tombone which states, “A review of the

DAPS Program Agreement form10 reveals that staff did not sign an

agreement with you that you would receive a sentence reduction of

one year for completion of the program.” As Royal has failed to
15

demonstrate that any contractual relationship existed, his breach

of contract claim fails.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.