[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 99-1586

SEAN MURPHY,

Petitioner,

v.

KATHLEEN M. HAWK, BUREAU OF PRISONS DIRECTOR,

Respondent.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Torruella, Chief Judge, Stahl and Lipez, Circuit Judges.

Sean Murphy on brief pro se. Donald K. Stern, United States Attorney, and James F. Lang, Assistant U.S. Attorney, on brief for respondent.

January 18, 2000

Per Curiam. Pro se petitioner Sean Murphy appeals a district court judgment that denied his 28 U.S.C. 2241 petition for a writ of habeas corpus to compel the Bureau of Prisons (BOP) to reduce his federal sentence. This appeal asks us to determine whether the BOP must consider a prisoner who served most of his federal prison term at a state correctional facility where he successfully completed a state drug abuse treatment program eligible for a sentence reduction under 18 U.S.C. 3621(e)(2)(B). Applying de novo review, see, e.g., Martinez v. Flowers,

(10th Cir. 1998), we conclude that the district court properly denied the petitioner relief on the ground that the BOP has permissibly maintained that the petitioner is not eligible for early release because he did not complete a "Bureau of Prisons residential drug abuse treatment program." See 28 C.F.R. 550.58(a)(3)(1997). Viewing this regulation in the light of the statute as a whole and its legislative history, we think that the BOP's position constitutes a reasonable and permissible construction of the statute. We have no occasion to apply the rule of lenity. We also decline to consider the petitioner's equal protection argument since it was not raised below. The remaining cases that the petitioner cites in support of his claim do not address the issue presented here. Consequently, they have no bearing on this case. In view of the foregoing, the judgment of the district court is affirmed. See Local Rule 27(c).