2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-26-2009

Albert Gardner v. J. Grandolsky

Precedential or Non-Precedential: Precedential

Docket No. 09-1742

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-1742

___________

ALBERT GARDNER,

 Appellant

v.

J. GRANDOLSKY, Warden

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 08-cv-06127)

District Judge: Honorable Renee Marie Bumb

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 13, 2009

Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit

Judges

(Opinion filed: October 26, 2009)
2

Albert Gardner

Fort Dix FCI

P.O. Box 2000

Fort Dix, NJ 08640-000

Pro Se

Paul A. Blaine

Office of the United States Attorney

Camden Federal Building & Courthouse

401 Market Street

P.O. Box 2098, 4th Floor

Camden, NJ 08101-000

Attorney for Appellee

_________

 OPINION OF THE COURT

_________

PER CURIAM

Albert Gardner appeals pro se from an order by the

United States District Court for the District of New Jersey

denying his petition for a writ of habeas corpus. For the

following reasons, we will affirm the District Court’s

decision.

I.

In 2006, Gardner pleaded guilty to one charge of

possession with intent to distribute cocaine hydrochloride. 
3

The United States District Court for the District of Minnesota

sentenced him to a 30 month term of imprisonment for that

charge, a 27 month term of imprisonment for violating a

previously-imposed term of supervised release, and a three

year term of supervised release. The sentence was based, in

part, on a two-level enhancement for possession of a

dangerous weapon. See U.S.S.G. § 2D1.1(b)(1). The

sentencing judge recommended that Gardner participate in the

Residential Drug Abuse Treatment Program (“RDAP”), if

eligible.

Gardner is imprisoned at the Federal Correctional

Institution at Fort Dix, New Jersey, and was accepted into that

institution’s RDAP. However, Gardner was advised that

successful completion of the RDAP would not make him

eligible for early release because a Bureau of Prisons (“BOP”)

regulation, 28 C.F.R. § 550.58(a)(1)(vi)(B) (2000),

categorically excludes felons whose offense involved

possession of a firearm. Gardner challenged the prison’s

decision through the prison’s available administrative

procedures without success. In December 2008, Gardner filed

a pro se petition for a writ of habeas corpus in the United

States District Court for the District of New Jersey. 

The District Court denied the petition and Gardner

filed this timely pro se appeal.

II.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291

and 2253. We review de novo the District Court’s denial of
 More specifically, the regulation denied early release to 1

inmates whose “current offense is determined to be a crime of

4

habeas corpus relief, and review findings of fact for clear

error. Vega v. United States, 493 F.3d 310, 314 (3d Cir.

2007).

A. 

Gardner argues that the BOP regulation, which

categorically excludes felons whose offense involved

possession of a firearm from eligibility for a sentence

reduction, 28 C.F.R. § 550.58(a)(1)(vi)(B) (2000), is

“arbitrary and capricious” in violation of the Administrative

Procedure Act (“APA”), 5 U.S.C. § 706(2)(A). Before we

consider the merits of Gardner’s APA claim, we will briefly

review the relevant administrative and judicial history that

culminated in the current regulation.

 In 1994, to encourage prisoner participation in

substance abuse treatment programs such as the RDAP,

Congress authorized the BOP to reduce the sentence of

prisoners “convicted of a nonviolent offense” by up to one

year upon successful completion of the program. See 18

U.S.C. § 3621(e)(2)(B). However, Congress did not choose

to define the term “nonviolent offense.” Accordingly, the

next year, the BOP published an implementing regulation. In

it, the BOP excluded from eligibility for early release those

prisoners convicted of a “crime of violence” as defined in 18

U.S.C. § 924(c). See 28 C.F.R. § 550.58 (1995). The BOP

1
violence as defined in 18 U.S.C. § 924(c)(3),” as well as to

inmates who had a priorstate or federal conviction for homicide,

forcible rape, robbery, or aggravated assault. See Drug Abuse

Treatment Programs: Early Release Consideration, 60 Fed. Reg.

27692 (May 25, 1995). 

5

also issued a Program Statement, which further restricted

eligibility for early release by including additional offenses –

specifically, drug offenses under 21 U.S.C. §§ 841 and 846

with sentencing enhancements for possession of a dangerous

weapon. See U.S. Dep’t of Justice, Fed. Bureau of Prisons,

Program Statement No. 5162.02: Definition of Term “Crimes

of Violence,” § 9 (April 23, 1996). The additional offenses

generally had not been regarded by federal courts to be crimes

of violence within the meaning of 18 U.S.C. § 924(c). 

However, the BOP explained that it considered a drug offense

with a weapons possession sentencing enhancement to be a

“crime of violence” because “possession of a dangerous

weapon during the commission of a drug offense poses a

substantial risk that force may be used against persons or

property.” Id. 

The BOP’s Program Statement gave rise to substantial

litigation, ultimately leading to a split among the United

States Courts of Appeals over the validity of the BOP’s

attempt to add to the “crimes of violence” definition set forth

in § 924(c). Compare, e.g., Pelissero v. Thompson, 170 F.3d

442, 447 (4th Cir. 1999) (upholding the regulation and

Program Statement), with Roussos v. Menifee, 122 F.3d 159,

164 (3d Cir. 1997) (finding the Program Statement invalid). 
6

To resolve the split and achieve greater uniformity in applying

its regulation, the BOP published an interim regulation in

1997. The BOP removed the reference to the statutory

definition of “crimes of violence” in § 924(c) and abandoned

its effort to define the term “nonviolent offense.” Instead, the

BOP’s new regulation provided for the categorical denial of

eligibility for early release to certain classes of prisoners –

including, as in the 1995 version, prisoners convicted of drug

offenses with sentencing enhancements for the possession of

a firearm – but this time, “[a]s an exercise of the discretion

vested in the Director.” 28 C.F.R. § 550.58(a)(1)(vi)(B)

(1997); see also Drug Abuse Treatment and Intensive

Confinement Center Programs: Early Release Consideration,

62 Fed. Reg. 53690 (Oct. 15, 1997). 

The 1997 interim regulation gave rise to more

litigation, this time concerning whether the categorical

exclusion of certain classes of prisoners was a permissible

exercise of the BOP Director’s discretion. The United States

Supreme Court ultimately resolved the issue in Lopez v.

Davis, 531 U.S. 230 (2001), by upholding the BOP’s 1997

interim regulation. The Lopez court held that the federal

statute, 18 U.S.C. § 3621(e)(2)(B), grants the BOP the

discretion to categorically exclude classes of prisoners from

eligibility for early release. Lopez, 531 U.S. at 241. The

Supreme Court further held that excluding the class of

prisoners convicted of a felony involving possession of a

dangerous weapon is a permissible exercise of that discretion:

Having decided that the Bureau may categorically

exclude prisoners based on their preconviction

conduct, we further hold that the regulation excluding

Lopez [28 C.F.R. § 550.58(a)(1)(vi)(B) (1997)] is

permissible. The Bureau reasonably concluded that an

inmates’s prior involvement with firearms, in

connection with the commission of a felony, suggests
7

his readiness to resort to life-endangering violence and

therefore appropriately determines the early release

decision. 

Id. at 244.

The BOP’s 1997 interim regulation became final

without change in 2000, after a notice and comment period

held pursuant to the APA. See 5 U.S.C. § 553; see also Drug

Abuse Treatment and Intensive Confinement Center

Programs: Early Release Consideration, 65 Fed. Reg. 80745

(Dec. 22, 2000). As it had in its 1997 Federal Register notice,

the BOP explained that it revised the 1995 version of the

regulation to resolve the split among the Courts of Appeals

and to ensure uniformity in applying its regulation. See Drug

Abuse Treatment and Intensive Confinement Center

Programs: Early Release Consideration, 65 Fed. Reg. 80745

(Dec. 22, 2000). Among other things, the current BOP

regulation continues to provide that “[a]s an exercise of the

discretion vested in the Director of the Federal Bureau of

Prisons, the following categories of inmates are not eligible

for early release: . . . [i]nmates whose current offense is a

felony . . . [t]hat involved the carrying, possession, or use of a

firearm or other dangerous weapon. . . .” 28 C.F.R. §

550.58(a)(1)(vi)(B) (2000). 

B.

Gardner, a prisoner whose offense is a felony

involving possession of a firearm, was denied eligibility for

early release pursuant to 28 C.F.R. § 550.58(a)(1)(vi)(B)

(2000). He challenges the regulation as “arbitrary and

capricious” under the APA. See 5 U.S.C. § 706(2)(A). 

The scope of judicial review of agency rulemaking

under the APA’s “arbitrary and capricious” standard is
8

“narrow, and a court is not to substitute its judgment for that

of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). Although a

reviewing court “may not supply a reasoned basis for the

agency’s action that the agency itself has not given,” it may

nevertheless “uphold a decision of less than ideal clarity if the

agency’s path may reasonably be discerned.” State Farm, 463

U.S. at 43. A court may conclude that a regulation is arbitrary

and capricious only “if the agency relied on facts other than

those intended by Congress, did not consider ‘an important

aspect’ of the issue confronting the agency, provided an

explanation for its decision which ‘runs counter to the

evidence before the agency,’ or is entirely implausible.” Rite

Aid of Pa., Inc., v. Houston, 171 F.3d 842, 853 (3d Cir.

1999). 

In support of his claim that the BOP regulation is

arbitrary and capricious, Gardner relies exclusively upon the

recent decision by the Court of Appeals for the Ninth Circuit

in Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008). The

Arrington court considered whether the BOP provided a

sufficient rationale to support the final regulation’s

categorical exclusion of felons-in-possession from the early

release program. The BOP argued that its regulation was not

arbitrary and capricious because it promulgated the rule for

the dual purposes of protecting the public safety and creating

uniformity in application of the regulation, particularly after

the split among the Courts of Appeals arose concerning the

1995 version of the regulation. 

The Arrington court rejected both of the BOP’s

proffered rationales. It dismissed the public safety argument

as a mere “post hoc rationalization,” concluding that any

mention of public safety was “entirely absent” from the

administrative record. Id. at 1113; see also Burlington Truck

Lines, Inc. v. United States, 371 U.S. 156, 168 (1974) (“The
Perhaps in response to Arrington, the BOP recently issued 2

another final regulation. 28 C.F.R. § 550.55 (effective March

16, 2009). The new regulation continues to categorically deny

early release to prisoners convicted of a felony involving

possession of a dangerous weapon. Drug Abuse treatment

Program: Subpart Revision and Clarification and Eligibility of

D.C. Code Felony Offenders for Early Release Consideration,

74 Fed. Reg. 1892 (Jan. 14, 2009); 28 C.F.R. § 550.55(b)(5)(ii).

In the Federal Register notice, the BOP made explicit its public

safety rationale, stating “there is a significant potential for

violence from criminals who carry, possess or use firearms

while engaged in felonious activity. Thus, in the interest of

public safety, these inmates should not be released months in

advance of completing their sentences.” 74 Fed. Reg. 1895.

The BOP also adopted the reasoning set forth in Lopez. Id.

9

courts may not accept appellate counsel’s post hoc

rationalization for agency action”). In contrast, although it

found that the uniformity rationale appeared in the

administrative record, the Arrington court concluded that the

rationale did not sufficiently justify the BOP’s action. The

BOP could have chosen to achieve uniformity through

methods other than a rule of exclusion, and the record did not

explain why the agency chose that particular approach. 

Arrington, 516 F.3d at 1114. Thus, the Court of Appeals for

the Ninth Circuit concluded that because “the administrative

record contains no rationale explaining the Bureau’s decision

to categorically exclude prisoners with convictions involving

firearms from eligibility for early release under § 3621(e). . .

.,” the regulation is invalid. See Arrington, 516 F.3d at 1112. 

2

To date, Arrington is the sole case to conclude that the

BOP’s regulation is arbitrary and capricious in violation of

the APA. In response to Gardner’s claim, the Government

argues that we should reject Arrington and instead follow the
 The Gatewood court also found that the BOP had strong 3

substantive and administrative interests in applying its policy

decisions uniformly throughout its institutions, providing an

additional justification for the regulation. Id. at 848-49. 

10

reasoning of the Court of Appeals for the Eighth Circuit in its

recent decision Gatewood v. Outlaw, 560 F.3d 843 (8th Cir.

2009). The Gatewood court determined that Arrington is

“contrary to the Supreme Court’s decision in Lopez” and held

that the BOP provided sufficient justification for its regulation

under the APA. Gatewood, 560 F.3d at 846. 

According to Gatewood, the Arrington court

unjustifiably and erroneously limited its consideration of what

it called the “administrative record” to the BOP’s Federal

Register notice issued in 2000 when the BOP promulgated the

final rule. Id. at 847. The Court of Appeals for the Eighth

Circuit concluded that, in the administrative rulemaking

context, the “administrative record” is simply not so limited. 

Rather, in considering the BOP’s consistent efforts to

implement its categorical exclusion of felons-in-possession

from the early release program in the face of judicial

resistance, “it is appropriate to discern the reasons for the

agency’s final rule from the various prior interim rules,

Program Statements, and litigation positions reflecting that

consistent policy.” Id. Taken together, these sources

demonstrate that the BOP was consistently motivated by a

public safety rationale, and that rationale satisfies the APA’s

requirements. Id. at 847. 

3

C.

Having closely considered the issue, we conclude that

the BOP articulated a sufficient rationale for 28 C.F.R. §

550.58(a)(1)(vi)(B) (2000) to satisfy the “arbitrary and
11

capricious” standard set forth in APA § 706(2)(A). Although

the BOP’s public safety rationale was not explicit in the

Federal Register notices for the 1997 or 2000 regulations, we

conclude that the rationale may “reasonably be discerned”

from the regulatory history and attendant litigation. See State

Farm, 463 U.S. at 43; Gatewood, 560 F.3d at 847.

 As previously discussed, the BOP’s efforts to

categorically exclude felons convicted of possession of a

dangerous weapon from eligibility for early release have

remained consistent since 1995. The BOP amended the 1995

version of its regulation only because it could no longer

uniformly apply it after the split among the Courts of Appeals

developed concerning the BOP’s Program Statement; the

BOP expressly referred to the Circuit split in both its 1997

and 2000 Federal Register notices. See 62 Fed. Reg. 53690;

65 Fed. Reg. 80745, 80747. Because the litigation focused on

the BOP’s Program Statements, we find it both reasonable

and appropriate to consider the Program Statements when

discerning the agency’s rationale for promulgating the 1997

and 2000 regulations. See Gatewood, 560 F.3d at 847.

The BOP Program Statements expressly provide that

the BOP’s contemporaneous rationale for the categorical

exclusion has consistently been for the purpose of protecting

public safety. See U.S. Dep’t of Justice, Fed. Bureau of

Prisons, Program Statement 5162.04: Categorization of

Offenses, § 7(b) (Oct. 9, 1997); Program Statement 5162.02,

§ 9. Courts reviewing the regulation have long recognized the

BOP’s public safety rationale. See, e.g., Pelissero, 170 F.3d

at 445 (quoting the district court’s conclusion that it is

“entirely reasonable and certainly not arbitrary for the BOP to

equate gun possession and drug dealing with violence, thus

supporting its interpretation of not being a ‘nonviolent

offense’”); Venegas v. Herman, 126 F.3d 760, 765 (5th Cir.

1997) (the BOP’s “determination that a sufficient nexus exists
12

between the offenses at issue and a substantial risk of

violence is a valid exercise of discretion which this Court will

not disturb”). 

Indeed, we find it extremely significant that in Lopez,

the Supreme Court upheld both the reasonableness of the

1997 interim regulation and the BOP’s public safety rationale.

 Lopez, 531 U.S. at 244 (The BOP “reasonably concluded that

an inmate’s prior involvement with firearms, in connection

with the commission of a felony, suggests his readiness to

resort to life-endangering violence.”); Gatewood, 560 F.3d at

848 (“[W]e have no difficulty concluding, as the Court

obviously did in Lopez, that public safety was the

contemporaneous rationale for the interim and final rules. . .

.”). The Arrington court discounted this aspect of Lopez,

holding that Lopez addressed only the BOP’s authority to pass

the rule, not whether the BOP complied with the APA when it

promulgated the rule. Arrington, 516 F.3d at 1115; cf.

Gatewood, 560 F.3d at 848 (noting that there “is simply no

reason to suspect that public safety was not the actual basis”

for the regulation given the BOP’s “primary public safety

mission”). We, however, cannot so readily conclude that the

Supreme Court failed to consider whether the BOP’s

proffered public safety rationale was legitimate, and not a

mere post hoc rationalization, when evaluating the rationale to

determine the regulation’s validity.

Finally, the language of the regulation itself facially

manifests a concern for protecting the public safety. In

addition to felons-in-possession, it also denies eligibility for

early release to various categories of prisoners whose offenses

manifest a potential for violent behavior, such as prisoners

with a prior conviction for homicide, forcible rape, robbery,

aggravated assault, or child sexual abuse; prisoners whose

current offense is a felony that has an element of actual,

attempted, or threatened use of physical force against a person
13

or property; and prisoners whose current offense “by its

nature or conduct” presents a serious potential risk of physical

force against a person or property, or involves child sexual

abuse offenses. 28 C.F.R. § 550.58(a)(1)(iv), (vi)(A), (C),

(D) (2000); see also Gatewood, 560 F.3d at 848.

In sum, where, as here, the “agency has articulated and

acted on a consistent rationale throughout the course of a

lengthy informal rulemaking process, the final rule is not

arbitrary and capricious because the rationale was not fully

reiterated in the final agency action.” Gatewood, 560 F.3d at

848; cf., Arrington, 516 F.3d at 1114. For all of these

reasons, we hold that 28 C.F.R. § 550.58 (a)(1)(vi)(B) (2000)

is not arbitrary and capricious within the meaning of § 706 of

the APA. Accordingly, the District Court properly denied

Gardner’s petition for a writ of habeas corpus.

D.

Gardner also argues for the first time on appeal that the

BOP erroneously applied the regulation to him because his

“offense of conviction does not fall within the expressed

terms and definition for which the regulation was designed,

and the regulation in this instance has, otherwise, been

applied incorrectly.” Gardner did not raise this claim in his

habeas corpus petition and the District Court therefore did not

have the opportunity to consider it in the first instance. See

District Court Op. at 3, n.3 (“Petitioner does not argue that his

offense does not fall within the terms of the regulation or that

the regulation otherwise has been applied to him

incorrectly.”). We generally do not consider arguments raised

for the first time on appeal, see Inductotherm Indus., Inc. v.

U.S., 351 F.3d 120, 126 n.9 (3d Cir. 2003), and will not do so

in this case.

III.
14

For the foregoing reasons, we will affirm the judgment

of the District Court.