IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-50309

ELVIN BRAXTON TODD, Petitioner-Appellant,

versus

FEDERAL BUREAU OF PRISONS; KATHLEEN HAWK SAWYER, Director, Federal Bureau of Prisons; JOHN ASHCROFT, United States Attorney General; TROY WILLIAMSON, Warden, Federal Correctional Institution La Tuna, Respondents-Appellees.

Appeal from the United States District Court For the Western District of Texas (EP-00-CV-125-H)

January 11, 2002

Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:*

Appellant Elvin Braxton Todd appeals the denial of his

petition for a writ of habeas corpus challenging the refusal of the

Bureau of Prisons to file a motion to reduce his sentence. We

affirm.

I

Todd was convicted in Mexico of rape and possession of

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 marijuana, and subsequently transferred to the United States

pursuant to the Treaty on the Execution of Penal Sentences between

the United States and Mexico. Todd was sentenced in Mexico on

February 12, 1993, and received a 19-year sentence on the rape

conviction and a seven-year sentence for possession. He was

transferred to the United States on December 5, 1995, after

suffering severe abuse in Mexican prison. On May 29, 1996, the

United States Parole Commission determined that Todd’s foreign

offenses were akin to knowingly engaging in a sexual act with

another person under 12 years of age, in violation of

(c), and simple possession of a controlled substance, in

violation of

(a). The Commission then determined the

guideline range to be 168-210 months of imprisonment, followed by

three to five years of supervised release.

The Commission ordered Todd to serve a 156-month sentence,

followed by five years of supervised release. The Commission noted

that its determination represented a significant downward departure

from the guideline range, and stated that this reduction was based

upon Todd’s age, health, and the abuse he suffered in Mexican

prison. Todd is scheduled for release no later than September 23,

2005.

Todd filed a request for “compassionate release” pursuant to

(c)(1)(A), requesting that the Bureau of Prisons

move to reduce his sentence to time served due to Todd’s advanced

age, poor health, and the torture and rape he experienced while

2 imprisoned in Mexico. His request was denied by the warden, who

noted that the exigent circumstances cited by Todd were taken into

consideration by the Commission when it determined the length of

his sentence. Todd appealed to the Regional Director of the Board

of Prisons, who noted that a recommendation for compassionate

release requires extraordinary circumstances that could not have

been reasonably foreseen at the time of sentencing and concluded

that the circumstances of Todd’s case do not meet the criteria for

favorable consideration of a compassionate release recommendation

under 18 U.S.C. 3582(c)(1)(a). Todd then appealed to the

Administrator of National Inmate Appeals, who also denied his

request, finding that the warden and Regional Director correctly

denied relief in conformance with Bureau policy and noting that the

Bureau of Prisons has chosen to restrict the application of 18

U.S.C. 3582(c)(1)(a) to inmates suffering from a serious medical

condition that is generally terminal, with a determinate life

expectancy.

Todd then filed a pro se

petition, arguing

that the Bureau of Prisons’ decision not to file a motion under 18

U.S.C. 3582(c)(1)(a) to reduce his sentence was arbitrary and

capricious. Todd also challenged the constitutionality of his

Mexican conviction and sentence. The district court denied his

petition, and he appeals.

II

3 Todd argues that the Bureau of Prisons abused its discretion

by not filing a motion to reduce his sentence pursuant to

(c)(1(A) due to his advanced age, poor health, and abuse

suffered while imprisoned in Mexico. Todd asserts that we have

jurisdiction to hear his appeal under § 2241 as well as the

Administrative Procedures Act.1 The government argues that there is

no judicial review available under the APA for Bureau of Prisons’

decisions not to file § 3582(c)(1)(A) motions. Although we have

never considered the question of whether the APA prohibits judicial

review of decisions by the Bureau of Prisons not to file §

3582(c)(1)(A), the Seventh, Ninth, and Eleventh Circuits have

concluded that the decision not to file a § 3582(c)(1)(A) motion is

not reviewable.2

Although we must always be sure of our appellate

jurisdiction,3 as a prudential matter we decline to decide this

question because Todd’s claim fails even if we assume that we have

jurisdiction to review his appeal. The APA requires us to hold

unlawful and set aside any agency action that is arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance

1

, 706(2)(A). 2 Fernandez v. United States,

(11th Cir. 1991); Simmons v. Christensen,

(9th Cir. 1989); Turner v. United States Parole Comm’n,

(7th Cir. 1987). 3 Lee v. Wetzel,

(5th Cir. 2001).

4 with law.4 Section 3582(c)(1)(A) itself gives the Bureau discretion

to reduce the term of imprisonment if “extraordinary and compelling

reasons warrant such a reduction.”5 The Bureau’s regulation

implementing the statute states that the Bureau uses 3582(c)(1)(A)

“in particularly extraordinary or compelling circumstances which

could not reasonably have been foreseen by the court at the time of

sentencing.”6 The warden, Regional Director, and Administrator of

National Inmate Appeals specifically noted that the circumstances

cited by Todd in support of his request for compassionate release

were taken into account by the Commission when his sentence was

determined. The Bureau’s decision not to grant Todd’s request was

made in accordance with its regulations, and was not arbitrary or

capricious.

In addition, Todd challenges his Mexican conviction and

sentence were obtained in violation of his Constitutional rights.

We are prohibited by statute from considering a collateral attack

on Todd’s foreign conviction.7 His challenge fails.

AFFIRMED.

4

(2)(A). 5

6

. 7

(1).

5