UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

John F. Winkelman, Jr., Petitioner

v. Case No. 22-cv-282-SM Opinion No.

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

(c). He applied to the Bureau of Prisons (“BOP”)

for early release under the Elderly Offender Home Detention

Pilot Program,

(the “Pilot Program”). When

that application was denied, he petitioned this court to grant

him habeas corpus relief under

. 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

. 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

, 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.”

(g)(1)(B) (emphasis

supplied). See generally Defoggi v. Warden Fort Dix FCI, No.

23-1085,

, 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),

, at

*2 (D. Minn. June 13, 2023), report and recommendation adopted,

No. CV 22-2363 (PAM/LIB),

(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

.

See

(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,

(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

.” See

(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.

(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,

(2018), the Supreme Court concluded that the

residual clause of

was unconstitutionally vague.

Consequently, convictions for offenses in violation of

(c) are no longer characterized as convictions for “crimes

of violence” under

(b). Similar language in other

statutes has met the same fate. See, e.g., United States v.

Davis,

(2019) (same statutory language used in

(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,

(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

, 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,

, 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,

(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

. 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

(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

(c), as “crimes of violence.”

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.”

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,

. 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.

. 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

- 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,

(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

–

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.

(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.

16