UNITED STATES DISTRICT COURT                           
                    DISTRICT OF MINNESOTA                               

Fredrick Stewart,                   Case No. 24-cv-3432 (ECT/LIB)       

              Petitioner,                                               

v.                               REPORT AND RECOMMENDATION              

B. Eischen,                                                             

              Respondent.                                               


   This matter comes before the undersigned United States Magistrate Judge pursuant to a 
general assignment made in accordance with the provision of 

, and upon Fredrick 
Stewart’s Petition for a writ of habeas corpus. [Docket No. 1]. Stewart’s Petition is now subject to 
initial review pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States 
District Courts.1                                                         
   Under the First Step Act of 2018 (“FSA”), some prisoners may earn time credits towards 
their release from custody or towards sooner placement in prerelease custody by participating in 
“evidence-based recidivism reduction programming.” 

(d)(4). The FSA, however, 
expressly excludes some prisoners from the benefit of earned time credits, including prisoners 
convicted under                                                           
        Subparagraph  (A)(vi)  or  (B)(vi)  of  section  401(b)(1)  of  the 
        Controlled Substances Act (21 U.S.C. 841(b)(1)) . . . relating to 
        manufacturing, distributing, dispensing, or possessing with intent to 
        manufacture,  distribute,  or  dispense,  a  mixture  or  substance 
        containing a detectable amount of N-phenyl-N-[1-(2-phenylethyl)-
        4-piperidinyl] propanamide, or any analogue thereof.            

(d)(4)(D)(lxvi).                                          


1 Although Petitioner’s habeas petition is not brought pursuant to 

, the Rules Governing Section 2254 
Cases in the United States District Courts nevertheless apply to this Petition. See Rule 1(b).  
   Petitioner Fredrick Stewart pleaded guilty in the United States District Court for the 
Northern District of Illinois to one count of “knowingly and intentionally distributing a controlled 
substance, namely, 40 grams or more of a mixture and substance containing a detectable amount 
of fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperindinyl] propanamide) . . . and 100 grams or 

more of a mixture and substance containing a detectable amount of heroin . . . .” See United 
States v. Stewart, No. 1:20-CR-0414-1, Doc. No. 69 at 9-10 (N.D. Ill. Aug. 27, 2020) (indictment); 
Doc. No. 171 (N.D. Ill. Nov. 20, 2021) (plea agreement). As a result, Petitioner was sentenced 
pursuant to 

(b)(1)(B)(vi) to a five-year term of imprisonment, which he is 
continuing to serve today at the Federal Prison Camp in Duluth, Minnesota (“FPC-Duluth”). 
   In the present Petition for a writ of habeas corpus now before the Court, Petitioner claims 
that the Federal Bureau of Prisons (“BOP”) is improperly declining to award him with earned time 
credits under the FSA. It is very difficult to see how Petitioner could possibly be entitled to the 
relief requested. The FSA itself states, in no uncertain terms, that persons convicted under § 
841(b)(1)(B)(vi) of offenses related to fentanyl are excluded from the benefit of FSA earned time 

credits. Petitioner was convicted and sentenced pursuant to § 841(b)(1)(B)(vi). Indeed, Petitioner 
himself admitted as part of his plea agreement that he knowingly and intentionally distributed a 
controlled substance containing 40 grams or more of a mixture or substance containing a detectable 
amount of fentanyl—exactly the conduct prohibited by § 841(b)(1)(B)(vi). That would seem to be 
the end of the matter.                                                    
   But  Petitioner  insists  that  the  Supreme  Court’s  recent  decision  in  Loper  Bright 
Enterprises v. Raimondo, 

 (2024), calls into doubt the legality of the BOP’s 
decision not to award him time credits. Put briefly, Loper Bright and the decision it overturned, 
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

 (1984), concerned 
the deference owed by courts to an agency’s interpretation of an ambiguous statute. Loper Bright 
has in recent months become something of a talisman for federal prisoners, many of whom have 
attempted to fasten onto the case in the hopes that something about its holding might be applicable 
to their situation.                                                       

   Petitioner identifies § 841(d)(4)(D)(lxviii) as offering an ambiguity that Loper Bright 
might allow him to use to his advantage. Under that provision, a prisoner convicted under 
§ 841(b)(1) of any fentanyl offense is ineligible for FSA credits if that “offender was an organizer, 
leader, manager, or supervisor of others in the offense, as determined under the guidelines 
promulgated by the United States Sentencing Commission.” According to Petitioner, the BOP has 
treated the “and” in § 841(d)(4)(D)(lxviii) as an “or” and has concluded that any prisoner convicted 
of any fentanyl offense is ineligible for FSA earned time credits, regardless of whether that prisoner 
was  found  to  be  an  organizer,  leader,  manager,  or  supervisor  of  others.  It  is  this  alleged 
misinterpretation of § 841(d)(4)(D)(lxviii)—the BOP treating as disjunctive conditions that are 
supposed to be regarded as conjunctive—that Petitioner believes provides a basis for his claim. 

   But § 841(d)(4)(D)(lxviii) is not the provision that excludes Petitioner from the benefit of 
FSA time credits. Rather, it is § 841(d)(4)(D)(lxvi) that excludes Petitioner. Under that provision, 
persons convicted of certain specific fentanyl offenses—specifically, offenses punishable under 
§ 841(b)(1)(A)(vi) or (B)(vi)—are ineligible for time credits, without reference to whether that 
prisoner was an organizer, leader, manager, or supervisor in the offense. Petitioner was convicted 
under § 841(b)(1)(B)(vi). Any alleged error in how the BOP has interpreted § 841(d)(4)(D)(lxviii) 
simply is not relevant to Petitioner; he is excluded under an entirely separate (and unambiguous) 
provision of the FSA.                                                     
   Petitioner also argues that he is not excluded from earning time credits under the FSA 
because  he  was  not  convicted  of  a  crime  of  violence.  But  this,  too,  is  irrelevant.  Section 
841(d)(4)(D)(lxvi) does not distinguish between violent and non-violent offenses; all persons 
convicted under § 841(b)(1)(A)(vi) or (B)(vi) are ineligible. Petitioner is such a person. 

   For the reasons discussed above, it is evident from the habeas petition itself that Petitioner 
is not entitled to relief. Accordingly, this Court recommends that the habeas petition be denied and 
this matter dismissed with prejudice.                                     
   Therefore, based on the foregoing, and on all of the files, records, and proceedings herein, 
IT IS HEREBY RECOMMENDED THAT:                                            
1.  The petition for a writ of habeas corpus of petitioner Fredrick Stewart, [Docket No. 1], be 
   DENIED; and                                                          
2.  This matter be DISMISSED with prejudice.                            


Dated: September 9, 2024        s/Leo I. Brisbois                       
                                Hon. Leo I. Brisbois                    
                                United States Magistrate Judge          


                           NOTICE                                       

Filing Objections: This Report and Recommendation is not an order or judgment of the District 
Court and is therefore not appealable directly to the Eighth Circuit Court of Appeals. 

Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a magistrate 
judge’s proposed finding and recommendations within 14 days after being served a copy” of the 
Report and Recommendation. A party may respond to those objections within 14 days after being 
served a copy of the objections. See Local Rule 72.2(b)(2). All objections and responses must 
comply with the word or line limits set forth in Local Rule 72.2(c).      

                 UNITED STATES DISTRICT COURT                           
                    DISTRICT OF MINNESOTA                               

Fredrick Stewart,                   Case No. 24-cv-3432 (ECT/LIB)       

              Petitioner,                                               

v.                               REPORT AND RECOMMENDATION              

B. Eischen,                                                             

              Respondent.                                               


   This matter comes before the undersigned United States Magistrate Judge pursuant to a 
general assignment made in accordance with the provision of 

, and upon Fredrick 
Stewart’s Petition for a writ of habeas corpus. [Docket No. 1]. Stewart’s Petition is now subject to 
initial review pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States 
District Courts.1                                                         
   Under the First Step Act of 2018 (“FSA”), some prisoners may earn time credits towards 
their release from custody or towards sooner placement in prerelease custody by participating in 
“evidence-based recidivism reduction programming.” 

(d)(4). The FSA, however, 
expressly excludes some prisoners from the benefit of earned time credits, including prisoners 
convicted under                                                           
        Subparagraph  (A)(vi)  or  (B)(vi)  of  section  401(b)(1)  of  the 
        Controlled Substances Act (21 U.S.C. 841(b)(1)) . . . relating to 
        manufacturing, distributing, dispensing, or possessing with intent to 
        manufacture,  distribute,  or  dispense,  a  mixture  or  substance 
        containing a detectable amount of N-phenyl-N-[1-(2-phenylethyl)-
        4-piperidinyl] propanamide, or any analogue thereof.            

(d)(4)(D)(lxvi).                                          


1 Although Petitioner’s habeas petition is not brought pursuant to 

, the Rules Governing Section 2254 
Cases in the United States District Courts nevertheless apply to this Petition. See Rule 1(b).  
   Petitioner Fredrick Stewart pleaded guilty in the United States District Court for the 
Northern District of Illinois to one count of “knowingly and intentionally distributing a controlled 
substance, namely, 40 grams or more of a mixture and substance containing a detectable amount 
of fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperindinyl] propanamide) . . . and 100 grams or 

more of a mixture and substance containing a detectable amount of heroin . . . .” See United 
States v. Stewart, No. 1:20-CR-0414-1, Doc. No. 69 at 9-10 (N.D. Ill. Aug. 27, 2020) (indictment); 
Doc. No. 171 (N.D. Ill. Nov. 20, 2021) (plea agreement). As a result, Petitioner was sentenced 
pursuant to 

(b)(1)(B)(vi) to a five-year term of imprisonment, which he is 
continuing to serve today at the Federal Prison Camp in Duluth, Minnesota (“FPC-Duluth”). 
   In the present Petition for a writ of habeas corpus now before the Court, Petitioner claims 
that the Federal Bureau of Prisons (“BOP”) is improperly declining to award him with earned time 
credits under the FSA. It is very difficult to see how Petitioner could possibly be entitled to the 
relief requested. The FSA itself states, in no uncertain terms, that persons convicted under § 
841(b)(1)(B)(vi) of offenses related to fentanyl are excluded from the benefit of FSA earned time 

credits. Petitioner was convicted and sentenced pursuant to § 841(b)(1)(B)(vi). Indeed, Petitioner 
himself admitted as part of his plea agreement that he knowingly and intentionally distributed a 
controlled substance containing 40 grams or more of a mixture or substance containing a detectable 
amount of fentanyl—exactly the conduct prohibited by § 841(b)(1)(B)(vi). That would seem to be 
the end of the matter.                                                    
   But  Petitioner  insists  that  the  Supreme  Court’s  recent  decision  in  Loper  Bright 
Enterprises v. Raimondo, 

 (2024), calls into doubt the legality of the BOP’s 
decision not to award him time credits. Put briefly, Loper Bright and the decision it overturned, 
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

 (1984), concerned 
the deference owed by courts to an agency’s interpretation of an ambiguous statute. Loper Bright 
has in recent months become something of a talisman for federal prisoners, many of whom have 
attempted to fasten onto the case in the hopes that something about its holding might be applicable 
to their situation.                                                       

   Petitioner identifies § 841(d)(4)(D)(lxviii) as offering an ambiguity that Loper Bright 
might allow him to use to his advantage. Under that provision, a prisoner convicted under 
§ 841(b)(1) of any fentanyl offense is ineligible for FSA credits if that “offender was an organizer, 
leader, manager, or supervisor of others in the offense, as determined under the guidelines 
promulgated by the United States Sentencing Commission.” According to Petitioner, the BOP has 
treated the “and” in § 841(d)(4)(D)(lxviii) as an “or” and has concluded that any prisoner convicted 
of any fentanyl offense is ineligible for FSA earned time credits, regardless of whether that prisoner 
was  found  to  be  an  organizer,  leader,  manager,  or  supervisor  of  others.  It  is  this  alleged 
misinterpretation of § 841(d)(4)(D)(lxviii)—the BOP treating as disjunctive conditions that are 
supposed to be regarded as conjunctive—that Petitioner believes provides a basis for his claim. 

   But § 841(d)(4)(D)(lxviii) is not the provision that excludes Petitioner from the benefit of 
FSA time credits. Rather, it is § 841(d)(4)(D)(lxvi) that excludes Petitioner. Under that provision, 
persons convicted of certain specific fentanyl offenses—specifically, offenses punishable under 
§ 841(b)(1)(A)(vi) or (B)(vi)—are ineligible for time credits, without reference to whether that 
prisoner was an organizer, leader, manager, or supervisor in the offense. Petitioner was convicted 
under § 841(b)(1)(B)(vi). Any alleged error in how the BOP has interpreted § 841(d)(4)(D)(lxviii) 
simply is not relevant to Petitioner; he is excluded under an entirely separate (and unambiguous) 
provision of the FSA.                                                     
   Petitioner also argues that he is not excluded from earning time credits under the FSA 
because  he  was  not  convicted  of  a  crime  of  violence.  But  this,  too,  is  irrelevant.  Section 
841(d)(4)(D)(lxvi) does not distinguish between violent and non-violent offenses; all persons 
convicted under § 841(b)(1)(A)(vi) or (B)(vi) are ineligible. Petitioner is such a person. 

   For the reasons discussed above, it is evident from the habeas petition itself that Petitioner 
is not entitled to relief. Accordingly, this Court recommends that the habeas petition be denied and 
this matter dismissed with prejudice.                                     
   Therefore, based on the foregoing, and on all of the files, records, and proceedings herein, 
IT IS HEREBY RECOMMENDED THAT:                                            
1.  The petition for a writ of habeas corpus of petitioner Fredrick Stewart, [Docket No. 1], be 
   DENIED; and                                                          
2.  This matter be DISMISSED with prejudice.                            


Dated: September 9, 2024        s/Leo I. Brisbois                       
                                Hon. Leo I. Brisbois                    
                                United States Magistrate Judge          


                           NOTICE                                       

Filing Objections: This Report and Recommendation is not an order or judgment of the District 
Court and is therefore not appealable directly to the Eighth Circuit Court of Appeals. 

Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a magistrate 
judge’s proposed finding and recommendations within 14 days after being served a copy” of the 
Report and Recommendation. A party may respond to those objections within 14 days after being 
served a copy of the objections. See Local Rule 72.2(b)(2). All objections and responses must 
comply with the word or line limits set forth in Local Rule 72.2(c).