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May 1, 1998

NICHOLAS LASORSA, Petitioner, against PHILIP M. SPEARS, Respondent.

The opinion of the court was delivered by: SOTOMAYOR



 Petitioner Nicholas LaSorsa, petitions this Court for a writ of habeas corpus under 28 U.S.C. § 2241, challenging his continued incarceration by the Federal Bureau of Prisons (BOP) pursuant to a 1994 conviction in the Southern District of New York. LaSorsa seeks an order requiring BOP to credit him with a one year sentence reduction, pursuant to 18 U.S.C. § 3621(e)(2)(B), for having completed a substance abuse treatment program. On September 18, 1997, this Court referred respondent's motion to dismiss the petition to Magistrate Judge Ronald L. Ellis, who filed a Report and Recommendation on March 11, 1998 (the "Report"), recommending that this Court find BOP's denial to be based on an erroneous interpretation of law and ordering BOP to reconsider the petitioner's request for sentence reduction under the correct legal standard.

 The United States filed timely objections to the Report on March 27, 1998. This Court, having reviewed the Report and the government's objections, and having conducted a de novo review of the record, effectively accepts the recommendation of Magistrate Judge Ellis with modifications as noted herein. However, because much of the case law on this subject elides a critical distinction between BOP's discretionary powers under § 3621(e) and its ability to interpret statutes and regulations, the Court wishes to expound more than usual on the Magistrate Judge's thorough and thoughtful Report.


 The complete facts of this case are recounted in the Report of Magistrate Judge Ellis. Briefly, LaSorsa pled guilty to possession with intent to distribute heroin, in violation of 21 U.S.C. § 841, and using and carrying a firearm in relation to a drug trafficking offense, in violation of 21 U.S.C. § 924(c). The firearm in question, a semi-automatic handgun, was found in a search of LaSorsa's residence, as was the heroin. On May 11, 1994, LaSorsa was sentenced to two consecutive terms of sixty months' imprisonment. LaSorsa's § 924(c) conviction was subsequently vacated following the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995), and LaSorsa was resentenced to seventy-eight months on the § 841 count, the new sentence including a two-level, eighteen-month enhancement for possession of a dangerous weapon under United States Sentencing Guidelines § 2D1.1(b)(1).

 While incarcerated at F.C.I. Marianna, Florida, LaSorsa entered and completed a five hundred hour substance abuse program, graduating on June 5, 1996. LaSorsa immediately applied for a one-year sentence reduction under 18 U.S.C. § 3621(e)(2)(B). At the first level, LaSorsa's case manager denied the request because

Per your PSI [Presentence Investigation Report] dated 10/16/1996 you received a two level enhancement for possession of weapon which was in your residence. This means you require notification of local law enforcement under the [VCCLEA]. *fn1" See P.S. [Program Statement] 5162.02 p.7 for definition of crimes of violence. This precludes you from being eligible for consideration of one year off.

 Petition, Ex. B. LaSorsa diligently exhausted the entire administrative appeal system at BOP, being denied at each level essentially for the same reason -- that under P.S. 5162.02 he was convicted of a "crime of violence" and was therefore ineligible for release.

 LaSorsa then filed this habeas petition under 28 U.S.C. § 2241, contending that § 3621(e)(2)(B) entitled him to the sentence reduction and that therefore his continued incarceration (now at F.C.I. Otisville, New York) was in violation of federal law. Following referral by this Court, Magistrate Judge Ronald L. Ellis issued his Report. Magistrate Judge Ellis found, in essence, the following: (1) 18 U.S.C. § 3621(e)(2)(B) made eligible for sentence reduction those prisoners convicted of nonviolent offenses; (2) BOP's regulation interpreting this statute, 28 C.F.R. § 550.58, defined "nonviolent offense" as an offense not covered by the definition of "crime of violence" found in 18 U.S.C. § 924(c)(3); (3) BOP's Program Statement 5162.02, defining "crime of violence" to include LaSorsa's drug possession offense was contrary to clear case law interpreting § 924(c)(3) and therefore an invalid interpretation of the regulation; (4) BOP nevertheless maintained discretion under § 3621(e)(2)(B) to determine which eligible prisoners received the sentence reduction, and (5) therefore, BOP should be ordered to reconsider LaSorsa's request for sentence reduction under a proper interpretation of § 924(c)(3).

 The government objects to the Report on the ground that BOP's Program Statement is a permissible interpretation of both the statute and the regulation.


 I. The Statutory Framework

 I begin with the statute which underlies the early release program upon which LaSorsa relies. Title III of the Violent Crime Control and Law Enforcement Act of 1994 ("VCCLEA"), Pub. L. No. 103-322, gave BOP the authority to release certain prisoners who have completed a BOP substance abuse treatment program. In relevant part, the statute reads as follows:

(e) Substance abuse treatment.--
. . .
(2) Incentive for prisoners' successful completion of treatment program.--
. . .
(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 Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.

 18 U.S.C. § 3621(e) (emphasis added). The emphasized portions are the subject of the dispute at issue in this habeas petition.

 LaSorsa contends that, because he was not convicted of a violent offense, he is eligible for early release under § 3621(e)(2)(B). "Eligible" he may be, but as noted by Magistrate Judge Ellis and saliently put by the Seventh Circuit, "eligibility is not entitlement." Bush v. Pitzer, 133 F.3d 455, 457 (7th Cir. 1997). As far as the statute is concerned, BOP retains discretion over early release along at least two axes: (1) which ...

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