Duque v. Van Buren

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
July 5, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-11125
Summary Calendar
MYRIAM ROCIO MONTOYA DUQUE,
Petitioner-Appellant,
versus
VIRGINIA VAN BUREN, Warden, Federal Medical Center Carswell,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
(4:04-CV-222-Y)
--------------------
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Myriam Rocio Montoya Duque, federal
prisoner # 60224-079, was convicted of conspiracy with intent to
distribute cocaine and was sentenced to 168 months of imprisonment.
She appeals the district court’s denial of her 28 U.S.C. § 2241
petition challenging the determination that she is not eligible for
early release under 18 U.S.C. § 3621(e). Duque contends that
prison officials were required to notify her immediately of any
change in her eligibility for early release. She argues that

-- 1 of 2 --

2
prison officials were not authorized to revoke her eligibility for
early release based on a disciplinary violation that occurred three
years before. Duque concedes that the Bureau of Prison’s Program
Statement 3550.10, which requires, inter alia, compliance with the
disciplinary rules governing the possession and use of alcohol and
drugs, is reasonable. She asserts, however, that the statement in
this provision that “[a]n inmate shall lose his or her provisional
early release date immediately if the DHO/UDC finds the inmate,
pursuant to an incident report, to have: *Used or possessed alcohol
or drugs . . .” imposes a temporal requirement that limits the
Bureau of Prison’s authority to change an inmate’s eligibility
status. She contends that the failure to comply with this
requirement is a due process violation.
Duque also asserts in her reply brief that she is innocent of
the disciplinary violation that is the basis for the denial of her
eligibility for early release. Duque has abandoned her challenge
to the disciplinary charge, however, as she did not raise this
issue in her initial brief. See Cinel v. Connick, 15 F.3d 1338,
1345 (5th Cir. 1994).
Duque has not shown that any delay in the change in her
eligibility status under 18 U.S.C. § 3621(e) is a violation of
federal or constitutional law entitling her to remain eligible for
early release. See Rublee v. Fleming, 160 F.3d 213, 216-17 (5th
Cir. 1998). Accordingly, the judgment of the district court is
AFFIRMED.

-- 2 of 2 --