United States v. Michael Dale

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3918
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Alisha Stevenson, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
FCI Waseca; Bureau of Prisons; *
Ricardo Rios, *
* [UNPUBLISHED]
Appellees. *
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Submitted: June 17, 2010
Filed: July 8, 2010
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Before LOKEN, BRIGHT and GRUENDER, Circuit Judges.
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PER CURIAM.
Alisha Stevenson is currently serving a 41-month sentence at FCI Waseca,
which is operated by the Bureau of Prisons (“BOP”), for distribution of cocaine.
Under 18 U.S.C. § 3621(e)(2)(B), the BOP is authorized, in its discretion, to reduce
the sentences of inmates who were convicted of a nonviolent offense and who
complete a drug treatment program. Stevenson filed a habeas petition under 28 U.S.C.
§ 2241, challenging the BOP’s policy of denying such a sentence reduction to inmates
who, like Stevenson, received an enhancement to their advisory sentencing guidelines
calculation for possession of a firearm. See 28 C.F.R. § 550.58(a)(1)(vi)(B).

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1The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, adopting the report and recommendation of the Honorable Janie S.
Mayeron, United States Magistrate Judge for the District of Minnesota.
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Stevenson argues that the BOP promulgated this rule in violation of the
Administrative Procedure Act (“APA”). See 5 U.S.C. § 706(2)(A). The district court 1
rejected this argument and dismissed Stevenson’s habeas petition.
We have already held that 28 C.F.R. § 550.58 was validly promulgated under
the Administrative Procedure Act. See Gatewood v. Outlaw, 560 F.3d 843, 848-49
(8th Cir.), cert. denied, 558 U.S. ---, 130 S. Ct. 490 (2009). Stevenson acknowledges
that Gatewood is controlling on this issue, but she asks us to reconsider that decision.
We have no power to do so, as “it is a cardinal rule in our circuit that one panel is
bound by the decision of a prior panel.” United States v. Betcher, 534 F.3d 820,
823-24 (8th Cir. 2008) (quoting Owsley v. Luebbers, 281 F.3d 687, 690 (8th Cir.
2002)), cert. denied, 555 U.S. ---, 129 S. Ct. 962 (2009). Moreover, the BOP recently
promulgated 28 C.F.R. § 550.55, which reaffirms the challenged policy and addresses
the alleged APA shortcomings that Stevenson identifies in § 550.58. Stevenson did
not enter the drug treatment program until after March 16, 2009, when this new rule
went into effect. See 74 Fed. Reg. 1892, 1892 (Jan. 14, 2009). Therefore, even if
Gatewood were not controlling, Stevenson has identified no defect in § 550.55, which
also prohibits her from receiving a sentence reduction. Accordingly, we affirm the
district court’s dismissal of Stevenson’s habeas petition.
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