UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
John F. Winkelman, Jr., Petitioner
v. Case No. 22-cv-282-SM Opinion No. 2023 DNH 120
Warden, FCI Berlin, Respondent
O R D E R
John Winkelman is a 68-year-old inmate serving a sentence
for various convictions that include possession of a firearm in
furtherance of a drug trafficking offense, in violation of 18
U.S.C. § 924(c). He applied to the Bureau of Prisons (“BOP”)
for early release under the Elderly Offender Home Detention
Pilot Program, 34 U.S.C. § 60541 (the “Pilot Program”). When
that application was denied, he petitioned this court to grant
him habeas corpus relief under 28 U.S.C. § 2241. According to
Winkelman, the BOP deemed him ineligible for early release under
the Pilot Program because it erroneously (and impermissibly)
concluded that his § 924(c) conviction qualified as a “crime of
violence,” as defined in 18 U.S.C. § 16. It appears likely that the BOP applied the wrong criteria
in determining whether Winkelman is statutorily eligible to
participate in the program (or did not consider his statutory
eligibility at all). Nevertheless, it is plain that even though
Winkelman is likely eligible under the statute (at least, not
ineligible because of his § 924(c) conviction), he is still not
entitled to participate in the early release Pilot Program. The
BOP has exercised the broad discretion granted to it by Congress
to determine which inmates may be released and which will not.
Inmates like Winkelman who, although not serving a sentence
based upon a conviction for a crime of violence as defined in
18 U.S.C. § 16, possessed a firearm as part of the offense
conduct, are among those that the BOP has permissibly decided
not to release early.
As this case illustrates, there is a difference between
properly applying the basic program eligibility criteria
established by Congress, and an agency’s exercise of the broad
discretion granted by Congress to implement a program. The BOP
cannot alter, and must act consistently with, statutes enacted
by Congress, as those statutes are construed by the courts. The
BOP is free, however, to exercise the broad discretion conferred
by Congress to administer the program. That includes the
ability to deny program relief to inmates who, although
2 statutorily eligible, are not eligible under policies adopted by
the BOP to guide the exercise of its discretion.
For the reasons given below, the government’s motion for
summary judgment is granted, and Winkelman’s cross-motion for
summary judgment is denied.
Background
Congress vested the Bureau of Prisons with significant
discretion to administer the Pilot Program, providing that it
“may release some or all eligible elderly offenders and
terminally ill offenders from Bureau of Prisons facilities to
home detention.” 34 U.S.C. § 60541(g)(1)(B) (emphasis
supplied). See generally Defoggi v. Warden Fort Dix FCI, No.
23-1085, 2023 WL 5163898, at *1 (3d Cir. Aug. 11, 2023)
(“Congress has vested the executive branch, not the judicial
branch, with the power to decide which prisoners may participate
in the [Pilot Program].”) (citation omitted); Burgess v. Warden
of Rochester FMC, No. 22-CV-2363 (PAM/LIB), 2023 WL 4494342, at
*2 (D. Minn. June 13, 2023), report and recommendation adopted,
No. CV 22-2363 (PAM/LIB), 2023 WL 4493527 (D. Minn. July 12,
2023) (“Because release to home confinement is a placement
decision, the Court finds that it is solely within the BOP’s
discretion to dictate.”) (citation omitted).
3 Congress has, however, limited some of the BOP’s discretion
by establishing minimum statutory eligibility criteria for
participation in the Pilot Program. For example, Congress
defined “eligible elderly offender” to include eight traits:
1. the candidate for early release must be at least 60 years old;
2. the candidate cannot be serving a term of life imprisonment;
3. the candidate must have served at least two- thirds of his or her term of imprisonment;
4. the candidate must not have escaped or attempted to escape from the BOP;
5. the BOP must determine that the release of the candidate will result in a substantial net reduction of costs to the government;
6. the BOP, in its sole discretion and based upon information used to make custody classification decisions, must conclude that the candidate does not have a history of violence or a history of engaging in conduct constituting a sex offense;
7. the BOP must determine that the candidate poses no substantial risk to engage in criminal conduct or endanger any person or the public; and
8. the candidate cannot be serving a sentence for, among other things, a conviction for any crime of violence, as defined in 18 U.S.C. § 16.
See 34 U.S.C. § 60541(g)(5)(A).
4 Consequently, securing early release under the Elderly
Offender Home Detention Pilot Program requires an inmate to meet
two sets of criteria. First, as a threshold matter, the inmate
must satisfy the statutorily-prescribed eligibility criteria
listed above. Second, the BOP must, in the exercise of its
substantial discretion, determine that the inmate is, in its
view, otherwise appropriate for release under the program. That
is to say, if an inmate meets all of the statutory eligibility
criteria, “the Bureau ‘may,’ but also may not, grant early
release.” Lopez v. Davis, 531 U.S. 230, 239 (2001) (emphasis in
original).
I. Step One – Winkelman was not Convicted of a “Crime of Violence”
One of the statutory requirements for participation in the
Pilot Program (number 8 above) is straightforward: the inmate
cannot be serving a sentence “based upon a conviction for a
crime of violence, as defined in 18 U.S.C. § 16.” See 34 U.S.C.
§ 60541(g)(5)(A)(ii) (emphasis added). Section 16 defines a
“crime of violence” as either:
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force
5 against the person or property of another may be used in the course of committing the offense.
Id. (emphasis supplied). The first clause is generally referred
to as the “elements clause” and the second as the “residual
clause.” The government concedes that Winkelman’s conviction
under § 924(c) does not constitute a crime of violence under the
elements clause. Consequently, Winkelman is statutorily
ineligible to participate in the Pilot Program only if his
conviction meets the definition of “crime of violence” embodied
in the residual clause.
That issue is easily resolved. In Sessions v. Dimaya, 138
S. Ct. 1204 (2018), the Supreme Court concluded that the
residual clause of 18 U.S.C. § 16 was unconstitutionally vague.
Consequently, convictions for offenses in violation of 18 U.S.C.
§ 924(c) are no longer characterized as convictions for “crimes
of violence” under 18 U.S.C. § 16(b). Similar language in other
statutes has met the same fate. See, e.g., United States v.
Davis, 139 S. Ct. 2319 (2019) (same statutory language used in
18 U.S.C. § 924(c)(3)(B) was void for vagueness in prosecution
of defendant for using firearm in relation to a “crime of
violence”); Johnson v. United States, 576 U.S. 591 (2015)
(similar definition of “violent felony” in 18 U.S.C.
6 § 924(e)(2)(B)(ii) void for vagueness in sentencing under Armed
Career Criminal Act). 1
In other words, as a matter of federal law, Winkelman’s
§ 924(c) conviction, for which he is serving a sentence, was not
for a “crime of violence,” as defined in 18 U.S.C. § 16, and he
is not statutorily barred from participating in the Pilot
Program by virtue of that conviction.
The government seems to argue that the BOP is free to
interpret the statutory eligibility criteria as set out in
§ 16(b) differently than the Supreme Court because, in the
context of determining an inmate’s statutory eligibility for
participation in the Pilot Program, the language used is not
subject to a “void for vagueness challenge,” like the Sentencing
Guidelines, given that participation in the program is entirely
discretionary. That argument is unpersuasive as presented. See
generally Leocal v. Ashcroft, 543 U.S. 1, 11 n. 8 (2004) (“Even
if § 16 lacked clarity on this point, we would be constrained to
1 To be sure, in Beckles v. United States, 580 U.S. 256 (2017), the Court held that similar language defining a “crime of violence” in the Sentencing Guidelines was not invalid on “void for vagueness” grounds. Importantly, however, that decision rested largely on the discretionary nature of sentencing and the merely advisory character of the Guidelines (not unlike BOP’s broad discretion to release or not release inmates under the Pilot Program).
7 interpret any ambiguity in the statute in petitioner’s favor.
Although here we deal with § 16 in the deportation context, § 16
is a criminal statute, and it has both criminal and noncriminal
applications. Because we must interpret the statute
consistently, whether we encounter its application in a criminal
or noncriminal context, the rule of lenity applies.”) (emphasis
supplied). It cannot reasonably be argued that, as a matter of
statutory construction, the BOP is free to conclude that
Winkelman is serving a sentence for a “conviction” of a “crime
of violence” as defined in 18 U.S.C. § 16. He is not. That is
not to say that the BOP cannot exercise its discretion to
categorize “crimes of violence” differently when deciding whom
to release under the Pilot Program; it simply means that the BOP
cannot redefine the statutory eligibility criteria contrary to
the statute’s meaning as construed by the Supreme Court.
In fairness to the BOP, however, the court notes that it is
hardly clear on this record that the BOP ever engaged in the
first part of the two-step analysis described above. That is to
say, the record does not reveal whether the BOP ever considered
Winkelman’s § 924(c) conviction to be a “crime of violence” as
defined in 18 U.S.C. § 16(b), and deemed him ineligible for that
reason. The successive administrative denials of his
application to participate in the Pilot Program make no explicit
8 reference to section 16(b). Instead, they rely exclusively on a
BOP program statement that categorically defines all offenses
involving the use or possession of a firearm as “crimes of
violence” for purposes of administering various BOP programs
(including the Pilot Program). See Federal Bureau of Prisons,
Program Statement P5162.05 (March 16, 2009). That
classification renders inmates with such convictions ineligible
to obtain a favorable exercise of the BOP’s discretion. See
Warden’s Response (document no. 9-1) at 39 (“A review of this
matter was conducted and forwarded to the legal department for
further review. Their opinion is that you do not qualify to
participate in the elderly offender program because of your
conviction for the 924(c)(1). Program Statement 5162.05
classifies all 924(c) convictions as a crime of violence in all
cases.”) (emphasis supplied); Acting Regional Director’s
Response (document no. 9-1) at 41 (“The Unit Team considered all
relevant factors, including your specific need for services and
public safety, and determined you were ineligible for home
confinement based on your current conviction for a crime of
violence, pursuant to Program Statement 5162.05.”) (emphasis
supplied).
Neither response suggests that Winkelman failed to meet the
minimum statutory eligibility criteria set out in 34 U.S.C.
9 § 61541(g)(5)(A). Rather, both seem to rest entirely on the
BOP’s discretionary decision-making authority at step two of the
analysis.
Whether the BOP got the statutory eligibility question wrong,
or didn’t consider it all, makes no real substantive difference,
however, since it is plain that Winkelman is not otherwise
qualified to participate in the Pilot Program. See generally
Harwin v. Martinez, 356 F. Supp 3d 972, 975 (C.D. Cal. 2019)
(“So, even if Petitioner’s conviction is categorically
nonviolent as he maintains, the BOP can still properly deny him
early release [under the Residential Drug Abuse Treatment
Program] without exceeding its statutory authority. While a
conviction for a nonviolent offense is necessary for early-
release eligibility, it is not alone sufficient.”).
II. Step Two – Winkelman is not Qualified for the Pilot Program.
To facilitate consistent administration of its many programs
and to guide the exercise of its overall discretion in
determining which inmates should be afforded the benefit of
those programs, the BOP promulgated Program Statement P5162.05,
entitled “Categorization of Offense.” In it, the BOP has done
two things. First, it has categorically characterized
convictions under several specified federal statutes, including
10 18 U.S.C. § 924(c), as “crimes of violence.” Id., Section 3,
“Offense Categorized as Crimes of Violence,” at pg. 4.
Additionally, the Program Statement provides that, “As an
exercise of the discretion vested in the Director, an inmate
serving a sentence for an offense that falls under the
provisions described below shall be precluded from receiving
certain Bureau program benefits.” Id., Section 4, “Offenses
that at the Director’s Discretion Shall Preclude an Inmate’s
receiving Certain Bureau Program Benefits,” at pg. 8 (emphasis
added).
Under the provisions of Section 4, inmates serving a sentence
for any felony that meets the following criteria are excluded
from participation in any BOP program that is available only to
non-violent offenders:
Has as an element, the actual, attempted, or threatened use of physical force against the person or property of another, or
Involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device), or
By its nature or conduct, presents a serious potential risk of physical force against the person or property of another, or
By its nature or conduct involves sexual abuse offenses committed upon children.
11 Id. at 8 (emphasis supplied).
In short, the BOP has determined that, in the exercise of its
broad discretion, inmates serving sentences for crimes involving
the use or possession of a firearm will not be afforded the
benefit of various BOP programs, including the Pilot Program.
And, because one of Winkelman’s underlying convictions involved
the possession of a firearm, he is ineligible to participate in
that program.
The BOP’s reliance on the Program Statement to deny Winkelman
the benefit of the Pilot Program was entirely permissible. In a
context substantially similar to this one, the Supreme Court
held that the BOP “has discretion to delineate, as an additional
category of ineligible inmates, those whose current offense is a
felony involving a firearm.” Lopez, 531 U.S. at 238. The Court
in Lopez went on to hold that,
the regulation excluding [petitioner from early release based on completion of the drug treatment program] is permissible. The Bureau 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 and therefore appropriately determines the early release decision.
Id. at 244. Consequently, although the petitioner in Lopez met
the statutory eligibility criteria for participation in an early
12 release program (including the requirement that the inmate be
convicted of a “nonviolent offense”), the BOP permissibly denied
him early release based upon its discretionary decision that
inmates convicted of offenses employing firearms should be
categorically ineligible for early release because they are, in
the BOP’s opinion, more likely to present a threat to the
public.
So it is in Winkelman’s case. Although he meets the minimum
statutory eligibility criteria at step one of the BOP’s inquiry
– at least with respect to the requirement that he not be
convicted of a “crime of violence” as defined in 18 U.S.C. § 16
- that does not end the matter. In addition, the BOP must, in
the exercise of its discretion, deem him appropriate for
participation in that program. To that end, the BOP has decided
that it will not exercise its discretion to afford inmates
convicted of crimes under § 924(c), or those whose offense
conduct included carrying or possessing a firearm, the benefit
of early release under the Pilot Program.
Parenthetically, the court notes that although the Court of
Appeals for this circuit has not addressed the issue, there is
some federal precedent standing for the proposition that the BOP
exceeded its authority when, in Section 3 of the Program
13 Statement, it categorically defined convictions for violations
of 924(c) as “crimes of violence.” See Peck v. Thomas, 787 F.
Supp. 2d 1145, 1154 (D. Ore. 2011) (concluding that, under Ninth
Circuit precedent, Section 3 of the Program Statement invalidly
characterizes all § 924(c) convictions as “crimes of violence”
- an issue that need not be resolved here - but noting that
petitioner was also disqualified from participation in the BOP-
administered program by virtue of Section 4 of the Program
Statement and, therefore, was not entitled to habeas corpus
relief). Here, as in Peck, even if the Court of Appeals for the
First Circuit were to invalidate Section 3 of the Program
Statement, Winkelman would still be ineligible to participate in
the Pilot Program because his conviction for a crime involving
the use of a firearm would disqualify him under Section 4 of the
Program Statement. Winkelman is disqualified under both
provisions of the Program Statement.
Conclusion
Winkelman may (or may not) be correct in asserting that, at
step one, the BOP erred in determining that he committed a
disqualifying “crime of violence” as defined in 18 U.S.C. § 16 –
it is not obvious from the BOP’s responses to his various
appeals. Nevertheless, he is still not entitled to habeas
relief. The BOP determined that he (and any other inmates
14 convicted of similar statutorily non-violent crimes involving
the use or possession of firearms) may not participate in
certain BOP-administered programs, including the Pilot Program.
Such determinations are valid when based not on an error in
construing statutory eligibility but, rather, on the exercise of
the BOP’s broad discretion to administer the program.
For the foregoing reasons, the Warden’s motion for summary
judgment (document no. 9) is granted. Winkelman’s motion for
summary judgment (document no. 11) is denied, as is his petition
seeking habeas corpus relief (document no. 1).
The Clerk of Court shall enter judgment in accordance with
this order and close the case.
Certificate of Appealability
A certificate of appealability is likely not essential to
appellate review in this case, but if so, I decline to issue one
because petitioner has not made a substantial showing that he
has been denied a constitutional right with respect to his
participation in the discretionary Pilot Program. 28 U.S.C.
§ 2253(c)(3).
15 SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
September 25, 2023
cc: John F. Winkelman, Jr., pro se Seth R. Aframe, Esq.