United States District Court, D. Minnesota
Michael Williams, pro se plaintiff.
H. MacDonald, United States Attorney, and Erin M. Secord,
Assistant United States Attorney, for defendant.
MEMORANDUM OPINION & ORDER ADOPTING REPORT AND
R. TUNHEIM CHIEF JUDGE
Jay Michael Williams pled guilty in the United States
District Court for the District of Montana to one count of
possession with intent to distribute methamphetamine, in
violation of 21 U.S.C. § 841(a)(1), and one count of
receipt of a firearm by a person under indictment for a
felony, in violation of 18 U.S.C. § 922(n). (Plea
Agreement at 2, Aug. 18, 2016, Case No. 4:16-cr-00055-BMM,
Docket No. 16.) He is currently serving his sentence at a
federal facility in Minnesota.
October 29, 2018, Williams brought a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. (Pet. at 6,
Oct. 29, 2018, Docket No. 1.) Williams challenged the
validity of 28 C.F.R. § 550.55, which prohibits inmates
convicted of nonviolent offenses involving firearms from
being granted a sentence reduction pursuant to 18 U.S.C.
§ 3621(e)(2)(B). (Id. at 2.) Section 3621
permits the Bureau of Prisons (“BOP”) to reduce
the sentence of nonviolent offenders who successfully
complete treatment programs for residential substance abuse.
Williams argued that § 550.55 is arbitrary and
capricious under § 706 of the Administrative Procedure
Act (“APA”), 5 U.S.C. § 500 et
seq., because the regulation “is based only on
agency experience, not factual evidence.” (Def.'s
Mem. in Supp. at 6, Oct. 29, 2018, Docket No. 2.)
November 20, 2018, Magistrate Judge Elizabeth C. Wright
issued a Report and Recommendation (“R&R”)
recommending that the Court deny Williams' petition. (R.
& R., Nov. 20, 2018, Docket No. 5.) The Magistrate Judge
relied on binding precedent affirming the validity of the
regulation denying Williams relief. (Id. at 2-3.)
See Lopez v. Davis, 531 U.S. 230, 238-44 (2001)
(holding that § 3621(e)(2)(B) permits the BOP to
categorically deny certain groups of nonviolent offenders
from discretionary relief); Gatewood v. Outlaw, 560
F.3d 843, 846-49 (8th Cir. 2009) (holding that 28
C.F.R. § 550.58 is not arbitrary and capricious, but
reasonably based on the BOP's public safety concerns);
Stevenson v. FCI Waseca, 383 Fed.Appx. 587, 587-88
(8th Cir. 2010) (per curiam) (affirming
Gatewood and its application to § 550.55).
now objects. (Objs., Dec. 6, 2018, Docket No. 6; Objs. Jan.
4, 2019, Docket No. 9.) Because 28 C.F.R. § 550.55 is
reasonable and continues to reflect the BOP's safety
concerns, the Court will overrule Williams's objections
and adopt the R&R in full.
Standard of Review
the filing of an R&R by a magistrate judge, “a
party may serve and file specific written objections to the
proposed findings and recommendations.” Fed.R.Civ.P.
72(b)(2); accord D. Minn. LR 72.2(b)(1). “The
district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3); accord D.
Minn. LR 72.2(b)(3). To be proper, the objections must
specifically identify the portions of the R&R to which
the party objects and explain the basis for the objections.
Turner v. Minnesota, No. 16-3962, 2017 WL 5513629,
at *1 (D. Minn. Nov. 17, 2017).
first argues that, in light of new evidence, 28 C.F.R. §
550.55 no longer survives arbitrary and capricious review
under Section 706 of the APA. Williams cites data from the
BOP's 2014 Program Directory, which he says shows that
inmates who complete RDAP have a 16% lower rate of re-offense
and recidivism, thus decreasing concerns about public safety.
According to Williams, evidence of lower recidivism among
inmates who have completed RDAP undermines the public safety
rationale behind 28 C.F.R. § 550.55 because denial of
relief to nonviolent gun offenders deprives them of an
important incentive to complete the RDAP program. Williams
asserts that the consequence of denial of relief is more
crime. Williams further argues that because Lopez,
Stevenson, and Gatewood were decided before
the new evidence of reduced recidivism was released in 2014,
those cases are no longer binding on this Court.
Magistrate Judge Wright correctly stated, this Court remains
bound by Lopez, Gatewood, and
Stevenson. Additionally, Williams misunderstands the
standard under which courts must evaluate regulations such as
28 C.F.R. § 550.55. The question for the Court is not
whether there may be a more reasonable
alternative to the regulation in question; instead, it is
whether the regulation reflects “a permissible
construction of the statute.” Chevron v. U.S.A.,
Inc. v. Natural Resource Defense Council, Inc., 467 U.S.
837, 843 (1984). In evaluating a regulation, a court must
apply “the principle of deference to administrative
interpretations.” Id. at 844. When the Eighth
Circuit applied these principles to 28 C.F.R. § 550.55,
it found that the regulation reflected the BOP's
reasonable belief that those who committed nonviolent gun
offenses may pose a greater danger to public safety than
other nonviolent offenders. See Stevenson, 383
Fed.Appx. at 588. The BOP's concerns about nonviolent gun
offenders are not rendered unreasonable by evidence of
reduced recidivism among the general population of offenders
upon completion of RDAP.
next argues that the recent passage of the First Step Act of
2018 (the “FSA”) supplants Section 3621(e) such
that the BOP no longer has discretion to exclude nonviolent
gun offenders from being granted credits for completion of
RDAP. See Pub. L. No. 115-391, 132 Stat. 5194
(2018). In relevant part, the FSA will require the Attorney
General of the United States to assess and develop
recidivism-reduction programs. Id. at 5201 (to be
codified at 18 U.S.C. § 3633(a)). These programs may
include substance abuse treatment programs. Id. at
5207 (to be codified at 18 U.S.C. § 3635(3)). Prisoners
who complete such programs may be granted relief at the
BOP's discretion, including but not limited to early
release. Id. at 5198 (to be codified at 18 U.S.C.