Gary Lee Gunderson v. Robert A. Hood, Warden

Good Law

2001 Daily Journal DAR 11321·268 F.3d 1149·2001 WL 1262639·2001 Cal. Daily Op. Serv. 9039·2001 U.S. App. LEXIS 22696

United States Court of Appeals for the Ninth CircuitOctober 23, 200100-36102, 01-35535California2,526 words

Opinion

Nelson, J.

Federal prisoner Gary Lee Gunderson contends that because the Bureau of Prisons (“BOP”) Program Statement 5162.04 is inconsistent with BOP regulations and has a substantive effect upon him, the BOP may not employ it to deny him early release as a result of his drug rehabilitation program participation. We do not agree that the program statement is substantive rather than interpretive as applied to him. Accordingly, we affirm the district court.

I. BACKGROUND AND DISTRICT COURT PROCEEDINGS

A. Evolution of the Challenged Program

Title 18 U.S.C. § 3621 (e)(2)(B) authorizes the BOP to reduce the sentence of prisoners “convicted of a nonviolent offense” by up to one year if the prisoner successfully completes a residential substance abuse program. Section 3621(e)(2)(B) does not define the term “nonviolent offense.” In 1995, the BOP promulgated an interim regulation to fill in this gap. The regulation, codified at 28 C.F.R. § 550.58 (1995), equated “nonviolent offense” with every offense that did not fit within “crime[s] of violence” contained in a different section, 18 U.S.C. § 924 (c)(3). Around the same time, the BOP issued Program Statement 5162.02. That program…

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