MEMORANDUM OF DECISION
Petitioner Leo Weikert has filed a Petition for Habeas Corpus,asserting that the Bureau of Prisons ("BOP") misconstrued the statute andabused its discretion when it found him to be ineligible for earlyrelease pursuant to 18 U.S.C. § 3621 (e)(2)(B). That section statesthat: The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a [drug] treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.18 U.S.C. § 3621(e)(2)(B). However, an exception provides that: "Asan exercise of the discretion vested in the Director of the FederalBureau of Prisons, the following categories of inmates are not eligiblefor early release: . . . (iv) Inmates who have a prior felony ormisdemeanor conviction for homicide, forcible rape, robbery, oraggravated assault. . . ." 28 C.F.R. § 550.58(a)(1). Respondentdenied petitioner's appeal because his 1971 Iowa state conviction forAssault With Intent to do Great Bodily Harm fit within the AggravatedAssault exception as that crime is defined in thePage 2FBI's Uniform Crime Reports.1 Petitioner unsuccessfullyappealed the denial to the Northeast Regional Director of the Bureau ofPrisons and to the National Inmate Appeals Administrator, which issuedthe final denial. The instant petition for writ of habeas corpusfollowed. Respondent moves to dismiss the petition pointing out that theissue is not ripe for review since petitioner had not yet completed thedrug program when he filed the petition. He has since completed theprogram. (Pet.'s Mot. to Supplement the Record). In any case, the BOP'sinterpretation of the statute to exclude the petitioner from eligibilityis reasonable.
Courts may review the BOP's interpretations "for consistency with theplain language of the statute." Davis v. Crabtree,109 F.3d 566, 568 (9th Cir. 1997). Here, the BOP construed "AggravatedAssault" to include Assault with Intent to do Great Bodily Harm.Petitioner admits that "the BOP has discretion to probe the underlyingconstituent elements of the previous conviction to assure uniformity andeven-handedness in meting out eligibility for § 3621. . . ." (Opp'nat 7). Moreover, the regulations exclude from eligibility, inmates withconvictions falling under certain categories of crime-not specificcrimes. (Opp'n at 4).
Petitioner's argument that he could have been charged with AggravatedAssault,Page 3but instead, was charged with Assault With Intent to do Great BodilyHarm is unavailing given the BOP's determination that petitioner's priorconviction does fall under the exception in the regulations via the FBI'sdefinition of Aggravated Assault. Petitioner attempts to distinguish thelanguage of the offense for which he was convicted and that in the FBI'sdefinition. In this context, the BOP cannot be faulted for including the"any act" language of the offense for which petitioner was convictedwithin the "unlawful attack" language used in the FBI's definition.Likewise, petitioner's attempt to differentiate the intent elements ofthe two crimes fails. He argues that Aggravated Assault requires theintent to inflict "severe or aggravated bodily injury," whereas Assaultwith Intent to do Great Bodily Harm requires intent to inflict "seriousinjury." The BOP may determine that the intent elements are similar eventhough they do not employ identical language.
Petitioner's argument concerning weapons is unclear. He is apparentlyattempting again to distinguish between Aggravated Assault and Assaultwith Intent to do Great Bodily Harm in that one involves the use ofweapons. However, as he points out, the FBI's definition of AggravatedAssault does not require the use of weapons; it only states thatit is "usually accompanied by the use of a weapon or by meanslikely to produce death or great bodily harm." (Emphasis added).
Finally, petitioner's contention that the rule of lenity requires thatstatutory ambiguities be resolved in his favor is fruitless as there isno statutory ambiguity.
Accordingly, the respondent's Motion to Dismiss Habeas Corpus PetitionisPage 4ALLOWED. Judgment may be entered dismissing the petition.
1. Insofar as is relevant to this case, the FBI's Uniform CrimeReports defines Aggravated Assault as: An unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury. This type of assault usually is accompanied by the use of a weapon or by means likely to produce death or great bodily harm. . . .Federal Bureau of Investigation, Crime in the United States 2002:Uniform Crime Reports, Appendix II at 454, available athttp://www.fbi.gov/ucr/02cius.htm.