Albert Gardner v. J. GRANDOLSKY, Warden On Appeal from the United States District Court for the…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1742
___________
ALBERT GARDNER,
Appellant
v.
J. GRANDOLSKY, Warden
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 08-cv-06127)
District Judge: Honorable Renee Marie Bumb
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 13, 2009
Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit
Judges
(Opinion filed: October 26, 2009)

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2
Albert Gardner
Fort Dix FCI
P.O. Box 2000
Fort Dix, NJ 08640-000
Pro Se
Paul A. Blaine
Office of the United States Attorney
Camden Federal Building & Courthouse
401 Market Street
P.O. Box 2098, 4th Floor
Camden, NJ 08101-000
Attorney for Appellee
_________
OPINION OF THE COURT
_________
PER CURIAM
Albert Gardner appeals pro se from an order by the
United States District Court for the District of New Jersey
denying his petition for a writ of habeas corpus. For the
following reasons, we will affirm the District Court’s
decision.
I.
In 2006, Gardner pleaded guilty to one charge of
possession with intent to distribute cocaine hydrochloride.

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The United States District Court for the District of Minnesota
sentenced him to a 30 month term of imprisonment for that
charge, a 27 month term of imprisonment for violating a
previously-imposed term of supervised release, and a three
year term of supervised release. The sentence was based, in
part, on a two-level enhancement for possession of a
dangerous weapon. See U.S.S.G. § 2D1.1(b)(1). The
sentencing judge recommended that Gardner participate in the
Residential Drug Abuse Treatment Program (“RDAP”), if
eligible.
Gardner is imprisoned at the Federal Correctional
Institution at Fort Dix, New Jersey, and was accepted into that
institution’s RDAP. However, Gardner was advised that
successful completion of the RDAP would not make him
eligible for early release because a Bureau of Prisons (“BOP”)
regulation, 28 C.F.R. § 550.58(a)(1)(vi)(B) (2000),
categorically excludes felons whose offense involved
possession of a firearm. Gardner challenged the prison’s
decision through the prison’s available administrative
procedures without success. In December 2008, Gardner filed
a pro se petition for a writ of habeas corpus in the United
States District Court for the District of New Jersey.
The District Court denied the petition and Gardner
filed this timely pro se appeal.
II.
We have jurisdiction pursuant to 28 U.S.C. §§ 1291
and 2253. We review de novo the District Court’s denial of

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More specifically, the regulation denied early release to1
inmates whose “current offense is determined to be a crime of
4
habeas corpus relief, and review findings of fact for clear
error. Vega v. United States, 493 F.3d 310, 314 (3d Cir.
2007).
A.
Gardner argues that the BOP regulation, which
categorically excludes felons whose offense involved
possession of a firearm from eligibility for a sentence
reduction, 28 C.F.R. § 550.58(a)(1)(vi)(B) (2000), is
“arbitrary and capricious” in violation of the Administrative
Procedure Act (“APA”), 5 U.S.C. § 706(2)(A). Before we
consider the merits of Gardner’s APA claim, we will briefly
review the relevant administrative and judicial history that
culminated in the current regulation.
In 1994, to encourage prisoner participation in
substance abuse treatment programs such as the RDAP,
Congress authorized the BOP to reduce the sentence of
prisoners “convicted of a nonviolent offense” by up to one
year upon successful completion of the program. See 18
U.S.C. § 3621(e)(2)(B). However, Congress did not choose
to define the term “nonviolent offense.” Accordingly, the
next year, the BOP published an implementing regulation. In
it, the BOP excluded from eligibility for early release those
prisoners convicted of a “crime of violence” as defined in 18
U.S.C. § 924(c). See 28 C.F.R. § 550.58 (1995). The BOP1

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violence as defined in 18 U.S.C. § 924(c)(3),” as well as to
inmates who had a prior state or federal conviction for homicide,
forcible rape, robbery, or aggravated assault. See Drug Abuse
Treatment Programs: Early Release Consideration, 60 Fed. Reg.
27692 (May 25, 1995).
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also issued a Program Statement, which further restricted
eligibility for early release by including additional offenses –
specifically, drug offenses under 21 U.S.C. §§ 841 and 846
with sentencing enhancements for possession of a dangerous
weapon. See U.S. Dep’t of Justice, Fed. Bureau of Prisons,
Program Statement No. 5162.02: Definition of Term “Crimes
of Violence,” § 9 (April 23, 1996). The additional offenses
generally had not been regarded by federal courts to be crimes
of violence within the meaning of 18 U.S.C. § 924(c).
However, the BOP explained that it considered a drug offense
with a weapons possession sentencing enhancement to be a
“crime of violence” because “possession of a dangerous
weapon during the commission of a drug offense poses a
substantial risk that force may be used against persons or
property.” Id.
The BOP’s Program Statement gave rise to substantial
litigation, ultimately leading to a split among the United
States Courts of Appeals over the validity of the BOP’s
attempt to add to the “crimes of violence” definition set forth
in § 924(c). Compare, e.g., Pelissero v. Thompson, 170 F.3d
442, 447 (4th Cir. 1999) (upholding the regulation and
Program Statement), with Roussos v. Menifee, 122 F.3d 159,
164 (3d Cir. 1997) (finding the Program Statement invalid).

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6
To resolve the split and achieve greater uniformity in applying
its regulation, the BOP published an interim regulation in
1997. The BOP removed the reference to the statutory
definition of “crimes of violence” in § 924(c) and abandoned
its effort to define the term “nonviolent offense.” Instead, the
BOP’s new regulation provided for the categorical denial of
eligibility for early release to certain classes of prisoners –
including, as in the 1995 version, prisoners convicted of drug
offenses with sentencing enhancements for the possession of
a firearm – but this time, “[a]s an exercise of the discretion
vested in the Director.” 28 C.F.R. § 550.58(a)(1)(vi)(B)
(1997); see also Drug Abuse Treatment and Intensive
Confinement Center Programs: Early Release Consideration,
62 Fed. Reg. 53690 (Oct. 15, 1997).
The 1997 interim regulation gave rise to more
litigation, this time concerning whether the categorical
exclusion of certain classes of prisoners was a permissible
exercise of the BOP Director’s discretion. The United States
Supreme Court ultimately resolved the issue in Lopez v.
Davis, 531 U.S. 230 (2001), by upholding the BOP’s 1997
interim regulation. The Lopez court held that the federal
statute, 18 U.S.C. § 3621(e)(2)(B), grants the BOP the
discretion to categorically exclude classes of prisoners from
eligibility for early release. Lopez, 531 U.S. at 241. The
Supreme Court further held that excluding the class of
prisoners convicted of a felony involving possession of a
dangerous weapon is a permissible exercise of that discretion:
Having decided that the Bureau may categorically
exclude prisoners based on their preconviction
conduct, we further hold that the regulation excluding
Lopez [28 C.F.R. § 550.58(a)(1)(vi)(B) (1997)] is
permissible. The Bureau reasonably concluded that an
inmates’s prior involvement with firearms, in
connection with the commission of a felony, suggests

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7
his readiness to resort to life-endangering violence and
therefore appropriately determines the early release
decision.
Id. at 244.
The BOP’s 1997 interim regulation became final
without change in 2000, after a notice and comment period
held pursuant to the APA. See 5 U.S.C. § 553; see also Drug
Abuse Treatment and Intensive Confinement Center
Programs: Early Release Consideration, 65 Fed. Reg. 80745
(Dec. 22, 2000). As it had in its 1997 Federal Register notice,
the BOP explained that it revised the 1995 version of the
regulation to resolve the split among the Courts of Appeals
and to ensure uniformity in applying its regulation. See Drug
Abuse Treatment and Intensive Confinement Center
Programs: Early Release Consideration, 65 Fed. Reg. 80745
(Dec. 22, 2000). Among other things, the current BOP
regulation continues to provide that “[a]s an exercise of the
discretion vested in the Director of the Federal Bureau of
Prisons, the following categories of inmates are not eligible
for early release: . . . [i]nmates whose current offense is a
felony . . . [t]hat involved the carrying, possession, or use of a
firearm or other dangerous weapon. . . .” 28 C.F.R. §
550.58(a)(1)(vi)(B) (2000).
B.
Gardner, a prisoner whose offense is a felony
involving possession of a firearm, was denied eligibility for
early release pursuant to 28 C.F.R. § 550.58(a)(1)(vi)(B)
(2000). He challenges the regulation as “arbitrary and
capricious” under the APA. See 5 U.S.C. § 706(2)(A).
The scope of judicial review of agency rulemaking
under the APA’s “arbitrary and capricious” standard is

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8
“narrow, and a court is not to substitute its judgment for that
of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). Although a
reviewing court “may not supply a reasoned basis for the
agency’s action that the agency itself has not given,” it may
nevertheless “uphold a decision of less than ideal clarity if the
agency’s path may reasonably be discerned.” State Farm, 463
U.S. at 43. A court may conclude that a regulation is arbitrary
and capricious only “if the agency relied on facts other than
those intended by Congress, did not consider ‘an important
aspect’ of the issue confronting the agency, provided an
explanation for its decision which ‘runs counter to the
evidence before the agency,’ or is entirely implausible.” Rite
Aid of Pa., Inc., v. Houston, 171 F.3d 842, 853 (3d Cir.
1999).
In support of his claim that the BOP regulation is
arbitrary and capricious, Gardner relies exclusively upon the
recent decision by the Court of Appeals for the Ninth Circuit
in Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008). The
Arrington court considered whether the BOP provided a
sufficient rationale to support the final regulation’s
categorical exclusion of felons-in-possession from the early
release program. The BOP argued that its regulation was not
arbitrary and capricious because it promulgated the rule for
the dual purposes of protecting the public safety and creating
uniformity in application of the regulation, particularly after
the split among the Courts of Appeals arose concerning the
1995 version of the regulation.
The Arrington court rejected both of the BOP’s
proffered rationales. It dismissed the public safety argument
as a mere “post hoc rationalization,” concluding that any
mention of public safety was “entirely absent” from the
administrative record. Id. at 1113; see also Burlington Truck
Lines, Inc. v. United States, 371 U.S. 156, 168 (1974) (“The

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Perhaps in response to Arrington, the BOP recently issued2
another final regulation. 28 C.F.R. § 550.55 (effective March
16, 2009). The new regulation continues to categorically deny
early release to prisoners convicted of a felony involving
possession of a dangerous weapon. Drug Abuse treatment
Program: Subpart Revision and Clarification and Eligibility of
D.C. Code Felony Offenders for Early Release Consideration,
74 Fed. Reg. 1892 (Jan. 14, 2009); 28 C.F.R. § 550.55(b)(5)(ii).
In the Federal Register notice, the BOP made explicit its public
safety rationale, stating “there is a significant potential for
violence from criminals who carry, possess or use firearms
while engaged in felonious activity. Thus, in the interest of
public safety, these inmates should not be released months in
advance of completing their sentences.” 74 Fed. Reg. 1895.
The BOP also adopted the reasoning set forth in Lopez. Id.
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courts may not accept appellate counsel’s post hoc
rationalization for agency action”). In contrast, although it
found that the uniformity rationale appeared in the
administrative record, the Arrington court concluded that the
rationale did not sufficiently justify the BOP’s action. The
BOP could have chosen to achieve uniformity through
methods other than a rule of exclusion, and the record did not
explain why the agency chose that particular approach.
Arrington, 516 F.3d at 1114. Thus, the Court of Appeals for
the Ninth Circuit concluded that because “the administrative
record contains no rationale explaining the Bureau’s decision
to categorically exclude prisoners with convictions involving
firearms from eligibility for early release under § 3621(e). . .
.,” the regulation is invalid. See Arrington, 516 F.3d at 1112.2
To date, Arrington is the sole case to conclude that the
BOP’s regulation is arbitrary and capricious in violation of
the APA. In response to Gardner’s claim, the Government
argues that we should reject Arrington and instead follow the

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The Gatewood court also found that the BOP had strong3
substantive and administrative interests in applying its policy
decisions uniformly throughout its institutions, providing an
additional justification for the regulation. Id. at 848-49.
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reasoning of the Court of Appeals for the Eighth Circuit in its
recent decision Gatewood v. Outlaw, 560 F.3d 843 (8th Cir.
2009). The Gatewood court determined that Arrington is
“contrary to the Supreme Court’s decision in Lopez” and held
that the BOP provided sufficient justification for its regulation
under the APA. Gatewood, 560 F.3d at 846.
According to Gatewood, the Arrington court
unjustifiably and erroneously limited its consideration of what
it called the “administrative record” to the BOP’s Federal
Register notice issued in 2000 when the BOP promulgated the
final rule. Id. at 847. The Court of Appeals for the Eighth
Circuit concluded that, in the administrative rulemaking
context, the “administrative record” is simply not so limited.
Rather, in considering the BOP’s consistent efforts to
implement its categorical exclusion of felons-in-possession
from the early release program in the face of judicial
resistance, “it is appropriate to discern the reasons for the
agency’s final rule from the various prior interim rules,
Program Statements, and litigation positions reflecting that
consistent policy.” Id. Taken together, these sources
demonstrate that the BOP was consistently motivated by a
public safety rationale, and that rationale satisfies the APA’s
requirements. Id. at 847.3
C.
Having closely considered the issue, we conclude that
the BOP articulated a sufficient rationale for 28 C.F.R. §
550.58(a)(1)(vi)(B) (2000) to satisfy the “arbitrary and

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11
capricious” standard set forth in APA § 706(2)(A). Although
the BOP’s public safety rationale was not explicit in the
Federal Register notices for the 1997 or 2000 regulations, we
conclude that the rationale may “reasonably be discerned”
from the regulatory history and attendant litigation. See State
Farm, 463 U.S. at 43; Gatewood, 560 F.3d at 847.
As previously discussed, the BOP’s efforts to
categorically exclude felons convicted of possession of a
dangerous weapon from eligibility for early release have
remained consistent since 1995. The BOP amended the 1995
version of its regulation only because it could no longer
uniformly apply it after the split among the Courts of Appeals
developed concerning the BOP’s Program Statement; the
BOP expressly referred to the Circuit split in both its 1997
and 2000 Federal Register notices. See 62 Fed. Reg. 53690;
65 Fed. Reg. 80745, 80747. Because the litigation focused on
the BOP’s Program Statements, we find it both reasonable
and appropriate to consider the Program Statements when
discerning the agency’s rationale for promulgating the 1997
and 2000 regulations. See Gatewood, 560 F.3d at 847.
The BOP Program Statements expressly provide that
the BOP’s contemporaneous rationale for the categorical
exclusion has consistently been for the purpose of protecting
public safety. See U.S. Dep’t of Justice, Fed. Bureau of
Prisons, Program Statement 5162.04: Categorization of
Offenses, § 7(b) (Oct. 9, 1997); Program Statement 5162.02,
§ 9. Courts reviewing the regulation have long recognized the
BOP’s public safety rationale. See, e.g., Pelissero, 170 F.3d
at 445 (quoting the district court’s conclusion that it is
“entirely reasonable and certainly not arbitrary for the BOP to
equate gun possession and drug dealing with violence, thus
supporting its interpretation of not being a ‘nonviolent
offense’”); Venegas v. Herman, 126 F.3d 760, 765 (5th Cir.
1997) (the BOP’s “determination that a sufficient nexus exists

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between the offenses at issue and a substantial risk of
violence is a valid exercise of discretion which this Court will
not disturb”).
Indeed, we find it extremely significant that in Lopez,
the Supreme Court upheld both the reasonableness of the
1997 interim regulation and the BOP’s public safety rationale.
Lopez, 531 U.S. at 244 (The BOP “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.”); Gatewood, 560 F.3d at
848 (“[W]e have no difficulty concluding, as the Court
obviously did in Lopez, that public safety was the
contemporaneous rationale for the interim and final rules. . .
.”). The Arrington court discounted this aspect of Lopez,
holding that Lopez addressed only the BOP’s authority to pass
the rule, not whether the BOP complied with the APA when it
promulgated the rule. Arrington, 516 F.3d at 1115; cf.
Gatewood, 560 F.3d at 848 (noting that there “is simply no
reason to suspect that public safety was not the actual basis”
for the regulation given the BOP’s “primary public safety
mission”). We, however, cannot so readily conclude that the
Supreme Court failed to consider whether the BOP’s
proffered public safety rationale was legitimate, and not a
mere post hoc rationalization, when evaluating the rationale to
determine the regulation’s validity.
Finally, the language of the regulation itself facially
manifests a concern for protecting the public safety. In
addition to felons-in-possession, it also denies eligibility for
early release to various categories of prisoners whose offenses
manifest a potential for violent behavior, such as prisoners
with a prior conviction for homicide, forcible rape, robbery,
aggravated assault, or child sexual abuse; prisoners whose
current offense is a felony that has an element of actual,
attempted, or threatened use of physical force against a person

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13
or property; and prisoners whose current offense “by its
nature or conduct” presents a serious potential risk of physical
force against a person or property, or involves child sexual
abuse offenses. 28 C.F.R. § 550.58(a)(1)(iv), (vi)(A), (C),
(D) (2000); see also Gatewood, 560 F.3d at 848.
In sum, where, as here, the “agency has articulated and
acted on a consistent rationale throughout the course of a
lengthy informal rulemaking process, the final rule is not
arbitrary and capricious because the rationale was not fully
reiterated in the final agency action.” Gatewood, 560 F.3d at
848; cf., Arrington, 516 F.3d at 1114. For all of these
reasons, we hold that 28 C.F.R. § 550.58 (a)(1)(vi)(B) (2000)
is not arbitrary and capricious within the meaning of § 706 of
the APA. Accordingly, the District Court properly denied
Gardner’s petition for a writ of habeas corpus.
D.
Gardner also argues for the first time on appeal that the
BOP erroneously applied the regulation to him because his
“offense of conviction does not fall within the expressed
terms and definition for which the regulation was designed,
and the regulation in this instance has, otherwise, been
applied incorrectly.” Gardner did not raise this claim in his
habeas corpus petition and the District Court therefore did not
have the opportunity to consider it in the first instance. See
District Court Op. at 3, n.3 (“Petitioner does not argue that his
offense does not fall within the terms of the regulation or that
the regulation otherwise has been applied to him
incorrectly.”). We generally do not consider arguments raised
for the first time on appeal, see Inductotherm Indus., Inc. v.
U.S., 351 F.3d 120, 126 n.9 (3d Cir. 2003), and will not do so
in this case.
III.

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For the foregoing reasons, we will affirm the judgment
of the District Court.

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