Hardy v. Warden of FCI Schuylkill

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JORGE HARDY,
Petitioner
v.
CIVIL ACTION NO. 3:26-192
(JUDGE MANNION)
WARDEN OF FCI SCHUYLKILL,
Respondent
MEMORANDUM
Currently before the Court is prose Petitioner Jorge Hardy ("Hardy")'s
petition for a writ of habeas corpus under 28 U.S.C. §2241. 	For the reasons
stated below, the Court will dismiss the petition with prejudice and direct the
Clerk of Court to close this case.
I. 	BACKGROUND
On June 6, 2025, Hardy was sentenced to an aggregate sentence of
fifty-five 	months 	of 	federal 	incarceration, 	followed 	by 	three 	years 	of
supervised release, after he pleaded guilty to six counts of distribution of a
controlled substance (21 U.S.C. §§841 (a)(1 ), (b)(1 )(C)) in the United States
District Court for the Norther District of Ohio. See United States v. Hardy, No.
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24-cr-368 	(N. D. 	Ohio), 	ECF 	No . 	22. 1 When 	calculating 	the 	advisory
sentencing guideline range for Hardy's sentence, the Northern District of
Ohio appl ied a two-level enhancement to his offense level for possessing
firearms in connection with his distribution of controlled substances offenses
pursuant 	to 	Section 	2D1 .1 (b)(1) 	of 	the 	United 	States 	Sentencing
Commission 's Guideline Manual ("USSG"). See (Doc. 1 at 2-4 .)2
Hardy commenced the instant action by filing the instant Section 2241
habeas petition , which the Clerk of Court docketed on January 28 , 2026.
(Doc. 1.)3 In his petition , Hardy asserts that he is currently participating in the
BOP's Residential Drug Abuse Treatment Program ("RDAP" ), and the BOP
has informed him that even if he completes the program, he is ineligible for
a reduction of his term of incarceration for up to one year because the BOP
considers his "non-violent offense" as a "crime of violence." See (id. at 1, 2).
Hardy argues that the BOP's definition of "crimes of violence" in its Program
1 The Court takes judicial notice of the docket in Hardy's underlying
criminal case. See Orabi v. Att'y Gen. of the U.S. , 738 F.3d 535, 537 (3d Cir.
2014) (citations omitted ).
2 According to the Federal Bureau of Prisons ("BOP") Inmate Locator
(https://www.bop.gov/inmateloc/), Hardy has an anticipated release date of
August 3, 2028.
3 Although Hardy neither paid the filing fee nor applied for leave to
proceed 	in forma pauperis when 	he filed 	his petition 	(Doc. 2), 	he 	later
rem itted the fee . See (Unnumbered Docket Entry After Doc. 3) .
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Statement 	5162.05, 	as 	well 	as 	28 	C.F.R. 	§550.55(b)(5)(i), 	exceeds 	its
statutory authority and conflicts with 18 U.S.C. §3621(e)(2)(B). See (id. at 1).
For relief, Hardy seeks an Order (1) determining that the BOP's "policy runs
afoul [of f]ederal law and [c]ongressional intent" and (2) classifying him as
eligible to receive the up-to-one-year reduction 	in 	his incarceration if he
completes RDAP. See (id. at 4).
II. 	LEGAL STANDARDS
A. 	Screening of Habeas Petitions
District courts are obligated to screen habeas petitions pursuant to
Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts. See R. 4, 28 U.S.C. foll. §2254 ("The clerk must promptly
forward the petition to a judge under the court's assignment procedure, and
the court must promptly examine it."). Rule 4 may be applied in habeas cases
brought under Section 2241. See R. 1(b), 28 U.S.C. foll. §2254 ("The district
court may apply any or all of these rules to a habeas corpus petition not
covered by Rule 1(a))."). "[A] district court is authorized to dismiss a [habeas]
petition summarily when it plainly appears from the face of the petition and
any exhibits annexed to it that the petitioner is not entitled to relief in the
district court." 	Lonchar v. 	Thomas, 	517 	U.S. 314, 	320 (1996); 	see a/so
McFarlandv. Scott, 512 U.S. 849,856 (1994) ("Federal courts are authorized
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to dismiss summarily any habeas petition that appears legally insufficient on
its face. " ).
B. 	Section 2241 Habeas Petitions
Section 2241 	confers federal jurisdiction over a habeas petition that
has been filed 	by 	a federal 	inmate challenging 	"not the validity but the
execution of [thei r] sentence. " Cardona v. Bledsoe, 681 	F.3d 533, 535 (3d
Cir. 	2012 ) (citations 	and 	footnote 	omitted); 	Woodall 	v. 	Fed. 	Bureau 	of
Prisons, 432 F.3d 235, 241 (3d Cir. 2005) (stating that Section 2241 "allows
a federal prisoner to challenge the 'execution' of his sentence in habeas" ).
While "the precise meaning of 'execution of the sentence' 	is hazy[,]" the
phrase has been interpreted as to "put into effect" or "carry out. " Woodall,
432 F.3d at 242, 243 (citation omitted). As a result, a federal inmate may
challenge conduct undertaken by the BOP that affects the duration of the
inmate's custody. See , e.g., Barden v. Keohane , 921 F.2d 476, 478-79 (3d
Cir. 1990) (finding that a federal inmate's Section 2241 petition is actionable
where the inmate attacks the term of their custody by challenging the way
the BOP is computing their federal sentence).
Ill. 	DISCUSSION
The Court has screened Hardy's Section 2241 petition under Rule 4 of
the Rules Governing Section 2254 Habeas Petitions and concludes that it
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plainly appears from the face of the petition and any documents attached
thereto that Hardy is not entitled to habeas relief in this case. As such , the
Court will dismiss Hardy's habeas petition with prejudice.
A. 	RDAP and Applicable BOP Policies
The Court will first discuss RDAP and the BOP's regulatory scheme
referenced in Hardy's petition. RDAP "is an intensive cognitive behavioral
therapy 	program 	offered 	in 	some 	BOP 	facilities ," and 	allows individuals
convicted of nonviolent offenses to be set apart from the general population
for substance abuse treatment. United States v. Davis, No. 21-cr-8, 2025 WL
84214, at *1 	n.3 (W.D. Va. 	Jan . 13, 	2025) (citing 	U.S. SENT'G COMM ' N,
RES IDENT IAL 	DRUG 	ABUSE 	TREATMENT 	PROGRAM 	(July 	22, 	2024),
https://www.ussc.gov/education/residential-drug-abuse-treatment-
program); see also United States v. James, 151 F.4th 28, 43 (2d Cir. 2025)
("RDAP, which typically runs for nine months, ' is an intensive drug treatment
program' run by the BOP 'for federal inmates with documented substance
abuse problems."' (quoting Reeb v. Thomas, 636 F.3d 1224, 1225 (9th Cir.
2011 )) . If the individual complies with RDAP's requirements, the BOP may
reduce the ind ividual's term of imprisonment by up to a year. See James,
151 F.4th at 43. This reduction in sentence comports with the federal statute
governing imprisonment of persons convicted of federal crimes, 18 U.S.C.
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§3621, which provides in relevant part that "[t]he period a prisoner convicted
of a nonviolent offense remains in custody after successfully completing a
treatment program may be reduced by the [BOP], 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).
"The BOP has sole discretion to determine an inmate's eligibility for
RDAP, [id.] §3621 (e)(5)(B), as well as to grant or deny sentence reductions
upon successful completion of the program , id. §3621 (e)(2)(B). " James, 151
F.4th at 43 (citation omitted). "Pursuant to its authority under [Section 3621],
the BOP . .. passed a regulation categorically excluding certain classes of
inmates from receiving sentence reductions when they complete the RDAP."
Jenkins v. Greene, No. 25-cv-730, 2025 WL 2796766, at *1 (M.D. Pa. Sept.
29, 2025) (citing 28 C.F.R. §550.55). This regulation provides that, inter a/ia,
"inmates who 	have 	been 	convicted 	of a '[a]n 	offense that 	involved the
carrying, possession , or use of a firearm' are precluded from receiving an
RDAP sentence reduction ." Id. (quoting 28 C.F. R. §550.55(b)(5)(ii)).
To further guide determining whether a nonviolent offender is eligible
for 	a sentence 	reduction 	under 	Section 	3621 (e)(2)(B) 	upon 	completing
RDAP , the BOP considers Program Statement 5162.05: Categorization of
Offenses. 	See PROGRAM STATEMENT 5162.05, 	UNITED STATES DEPARTMENT
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OF 	JUST ICE 	FEDERA L 	BUREAU 	OF 	PRISONS 	(Mar. 	16 , 	2009),
https://www.bop.gov/policy/progstat/5162_005.pdf (" PS 5162.05"); Romero
v. Warden F.C.I. Marianna , No. 25- cv -48, 2025 WL 2394887, at *2 (N.D. Fla.
July 	23, 	2025) 	(explaining 	that 	"[t]he 	BOP's 	Program 	Statement 	for
Categorization of Offenses provides further guidance" on a federal inmate's
eligibility for a sentence reduction under Section 3621 (e)(2)(B)), report and
recommendation adopted, 2025 WL 2394347 (N . D. Fla. Aug . 18, 2025). 4 As
applicable here, this Program Statement lists Hardy's Section 841 controlled
substances conviction as among the "offenses that at the [BOP] Director's
discretion shall preclude an inmate[ from] receiving certain [BOP] program
benefits. " PS 5162 .05 at 8, 12 (cleaned up). It also provides the following
example, which is specifically applicable here:
Sect ion 841 of Title 21 , United States Code makes it a crime to
manufacture, distribute, or possess with the intent to distribute
drugs. Under the Sentencing Guidelines (§2D1 .1 and §2D1 .11 ),
the 	defendant could 	receive 	an 	increase 	in 	his or her base
offense level because of a "Specific Offense Characteristic" (for
example, 	if 	a 	dangerous 	weapon 	was 	possessed 	during
commission 	of 	the 	offense), 	the 	court 	would 	increase 	the
defendant's base offense level 	by two 	levels. 	This particular
"Specific Offense Characteristic" (possession 	of a dangerous
weapon 	during 	the 	commission 	of a drug 	offense) 	poses 	a
4 The Court takes judicial notice of BOP Program Statement 5162.05.
See Bains v. Quay, No . 21-cv-353, 2021 WL 5343485, at *8 n.22 (M.D. Pa .
Oct. 	27, 2021 ) ("The 	court may 	properly take judicial 	notice of a BOP
program 	statement. " 	(citations 	omitted)), 	report 	and 	recommendation
adopted, 2021 WL 5330841 (M.D . Pa . Nov. 16, 2021 ).
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serious potential risk that force may be used against persons or
property. 	Specifically, 	as 	noted 	in 	the 	U.S. 	Sentencing
Guidelines 	§2D1 .1., 	application 	note 3, the enhancement for
weapon possession reflects the increased danger of violence
when drug traffickers possess weapons. Accordingly, an inmate
who was convicted of manufacturing drugs, (21 U.S.C. §841) and
received a two-level enhancement for possession of a firearm
has been convicted of an offense that will preclude the inmate
from receiving certain Bureau program benefits.
Id. at 10.
8. 	Analysis
Hardy 	contends 	that 	Program 	Statement 	5612.05 	and 	28 	C.F.R.
§550.55 exceed the BOP's statutory authority and otherwise conflict with 18
U.S.C. §3621 (e)(2)(B). See (Doc. 1 at 1.) He argues that the BOP cannot
use the USSG §2D1 .1(b)(1) sentencing enhancement to deny an inmate
el igibility for a reduced sentence under Section 3621 (e)(2)(B) because it
does not constitute a "crime of violence. " See (id. at 2-3). Hardy's arguments
lack merit.
Although he cites to various district court and circuit court of appeals
decisions he believes supports his arguments in this case, Hardy omits any
reference to the case which forecloses his arguments, namely, the United
States Supreme Court's decision in Lopez v. Davis, 531 U.S. 230 (2001 ). In
Lopez, the BOP determined that the Section 2241 	habeas petitioner, who
had been convicted of possession with intent to distribute methamphetamine
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in violation of 21 	U.S.C. §841, was qualified to participate in 	RDAP but
categorically ineligible for early release if he completed the program because
the sentencing court enhanced his sentence 	by two levels under USSG
§2D 1.1 (b )( 1) 	after 	finding 	that 	the 	petitioner 	possessed 	a 	firearm 	in
connection with the offense. See 	531 	U.S. 	at 236. 	The 	BOP based 	its
ineligibility 	determination 	on 	28 	C.F.R. 	§550.58(a)(1 )(vi), 	which 	was
essentially a prior version of the regulation at issue in the instant case. See
id.; see also Hendricks v. Jenkins, No. 19 -cv-4427, 2020 WL 5430821, at *4
(N.D. Cal. Sept. 10, 2020) ("The particular regulation addressed in Lopez,
former 28 C.F. R. 	§550.58, 	has been redesignated and is now 28 C.F.R.
§550.55. " (citing 69 	Fed. 	Reg. 	39887-02 (2004))). The BOP's regulation
"categorically denie[ d] early release to prisoners whose current offense is a
felony attended by 'the carrying , possession, or use of a firearm."' 531 U.S.
at 232-33.
The Supreme Court rejected the petitioner's challenge to the BOP's
regulation . See id. at 244. The Court first pointed out that Congress granted
the BOP discretion "to decide whether to reduce a sentence" under Section
3621 (e)(2)(B). Id. at 241. As such , "[w]hen an eligible prisoner successfully
completes drug treatment, the [BOP] thus has the authority, but not the duty,
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both to alter the prisoner's conditions of confinement and to reduce [their]
term of imprisonment. " Id.
The Court then determined that the BOP was not required to "rely only
on case-by-case assessments" when determining eligibility for a sentence
reduction 	under 	Section 	3621 (e)(2)(B) 	because 	such 	"case-by-case
decisionmaking 	in thousands of cases each year could 	invite favoritism,
disunity, 	and 	inconsistency." 	Id. 	at 	243-24. 	Instead, 	the 	BOP 	"may
categorically exclude prisoners based on their preconviction conduct." Id. at
244.
Finally, 	the 	Court 	held 	that 	the 	BOP's 	regulation 	excluding 	the
petitioner 	from 	a 	sentence 	reduction 	under 	Section 	3621 (e)(2)(B) 	was
"permissible. " 	Id. 	The 	Court 	explained 	that 	"[t]he 	[BOP] 	reasonably
concluded that an inmate's prior involvement with firearms, 	in connection
with the commission of a felony , suggests [their] readiness to resort to life-
endangering 	violence 	and 	therefore 	appropriately 	determines 	the 	early
release decision." Id. (footnote omitted).
In 	the 	instant 	case, the 	regulation 	Hardy 	challenges, 	28 	C.F.R.
§550.55(b)(5)(ii), contains language that is in all relevant respects identical
to 	the 	regulation 	the 	Court 	upheld 	in 	Lopez. 	Compare 	28 	C.F.R.
§550.55(b)(5)(ii) ("As an exercise of the Director's discretion, the following
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categories of inmates are not eligible for early release: ... (5) Inmates who
have a current felony conviction for: 	. .. 	(ii) An offense that involved the
carrying, 	possession, 	or use of a firearm or other dangerous weapon or
explosives (including any explosive material or explosive device)."), 	with
Lopez, 531 	U.S. at 235 ("(1) As 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: . . . (vi) Inmates whose current offense is a
felony: .. . (8) That involved the carrying, possession, or use of a firearm or
other dangerous weapon 	... 	." (quoting 	28 C.F.R. 	§550.58(a) (2000))).
Therefore, "Lopez controls this [C]ourt's analysis and compels the [C]ourt to
[dismiss Hardy's] petition because [Lopez] upholds the validity of an earlier
regulation that is identical in all relevant respects to the regulation [Hardy]
challenges" here. Jenkins, 2025 WL 2796766, at *2.
Although the Court will dismiss Hardy's Section 2241 habeas petition
because the Lopez Court squarely rejected the type of claim he asserts in
this case, a brief discussion of the case law Hardy cites in support of his
claim is warranted . Hardy attaches to his petition a portion of the Ninth Circuit
Court of Appeals' decision in Arrington v. Daniels, 516 F.3d 1106 (9th Cir.
2008). See (Doc. 1-2 at 1-3). In Arrington, the Ninth Circuit concluded that
28 C. F.R. 	§550.58(a)(1 )(vi)(B) violated the Administrative Procedures Act
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("APA"), 5 U.S.C. §706(2)(A), because it was "arbitrary and capricious." 516
F.3d at 1112.
In this case, Arrington is inapplicable because Hardy does not assert
that 28 C.F.R. §550.55 is arbitrary and capricious in violation of the APA.
See (Doc. 1 at 1-4). Even if he did , the Ninth Circuit's decision in Arlington
is not binding on this Court. See, e.g., Walton v. Montgomery Cnty. Cmty.
Co//. , No. 24-cv-6420, 2025 WL 345087, at *3 n.4 (E.D. Pa. Jan. 30, 2025)
(explaining 	that 	"Ninth 	Circuit 	precedent 	is 	not 	binding 	on 	this 	Court" ).
Instead, this Court is bound to follow the precedent set forth by the United
States Supreme Court and the Third Circuit Court of Appeals, and the Third
Circuit expressly declined to follow the Ninth Circuit's decision in Arrington
and instead held 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. " 	Gardner 	v.
Grando/sky, 585 F.3d 786, 793 (3d Cir. 2009). The Third Circuit's decision in
Gardner is binding precedent on this Court; whereas, the Ninth Circuit's
decision in Arrington is inapplicable to this case.
In addition to Arrington, Hardy cites to a Third Circuit case, Roussos v.
Menifee, 	122 F.3d 159 (3d Cir. 1997), in his petition. See (Doc. 1 at 2). In
Roussos, the habeas petitioner was convicted for conspiring to distribute
narcotics in violation of 21 U.S.C. §846. See 122 F.3d at 160. The sentencing
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court, pursuant to a plea agreement, applied the two-level enhancement
under USSG §2D1 .1 (b)(1) for possessing a firearm during a drug trafficking
offense. See id.
The BOP determined that the petitioner was ineligible for a sentence
reduction 	for 	completing 	a 	drug 	treatment 	program 	under 	Section
3621 (e)(2)(B) 	because 	its 	Program 	Statement classified 	the 	petitioner's
offense as a crime of violence. See id. at 160, 161. The Program Statement
provided that Section 841 or 846 convictions qualify as crimes of violence "if
the sentencing court increased the base level of the sentence for possession
of 	a 	dangerous 	weapon 	during 	commission 	of 	the 	offense 	because
'possession of a dangerous weapon during commission of a drug offense
poses a substantial risk that force may be used against persons or property."'
Id. at 160-61 . The petitioner challenged the BOP's Program Statement and
ineligibility determination because " he was convicted of a 'nonviolent offense'
in that his offense has not been regarded as a crime of violence under [18
U.S.C. §924(c)]." Id. at 161.
The Third Circuit agreed with the petitioner and determined that the
BOP's Program Statement unlawfully classified his Section 846 conviction
as a crime of violence. See id. at 163. It explained that the petitioner:
has 	been 	denied 	eligibility 	for 	sentence 	reduction 	under
§3621 (e)(2)(B) not because his offense has been classified as a
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"crime of violence" under §924(c)(3), but based solely upon the
Program Statement that categorically declares all inmates with
two-level 	sentencing 	enhancements 	for 	firearm 	possession
ineligible. By ignoring the offense of conviction and looking only
to sentencing factors, the BOP has attempted to transmogrify a
"nonviolent offense" into "a crime of violence." In other words, the
BOP converted a nonviolent crime into a violent one by means
of a Program Statement that is inconsistent with the language of
the statute, and its own regulations. More specifically, ... we find
the BOP's interpretation of a nonviolent offense in the Program
Statement to be in conflict with both 18 U.S.C. §3621 (e)(2)(B)
and 28 C.F.R. §550.58 and therefore erroneous.
Id. Accordingly, the Third Circuit concluded that the BOP could not "rely on
[the 	petitioner's] 	sentencing 	enhancement to deny 	him 	eligibility for the
sentence reduction" under Section 3621 (e)(2)(B). Id. at 164.
Although Roussos would appear to support Hardy's arguments in this
case, he does not mention what occurred after that decision was issued in
July 1997. Shortly thereafter, the BOP amended 28 C. F. R. §550.58 so that
it 	no 	longer "excluded inmates convicted of drug offense violations with
sentence enhancements for possession 	of a weapon from 	receiving 	18
U.S.C. §3621 (e)(2)(B)'s early release benefit" by "defining the statutory term
'prisoner convicted of a nonviolent offense' under 18 U.S.C. §3621(e)(2)(B)
or 	18 	U.S.C. 	§924(c)(3)'s 	cognate 	term 	'crimes 	of violence."' 	Muoio 	v.
Quintana, 593 F. Supp. 2d 776, 780 (W.D. Pa.), aff'd, 345 F. App'x 736 (3d
Cir. 2009) (unpublished) (citations omitted); see a/so Gardner, 585 F.3d at
790 (discussing the BOP's amendment of 28 C.F.R. §550.58). Instead , the
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regulation "relied upon 'the discretion allotted to the Director of the Bureau
of Prisons in granting a sentence reduction to exclude' such inmates. " Muoio,
593 F. Supp. 2d at 780; see also Gardner, 585 F.3d at 790 ("[T]he current
BOP regulation continues to provide that '[a]s an exercise of the discretion
vested in the Director of the [BOP], 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 ... ." (all alterations other than third alteration in original)
(quoting 28 C.F.R. §550.58(a)(1 )(vi)(B) (2000))).
The BOP's amendment to 28 C.F.R. §550.58 removed the basis upon
which the Third Circuit decided Roussos, i.e., the prior version defining the
phrase "crime of violence" by reference to Section 924(c)(3) of the Criminal
Code. Given that the Supreme Court then upheld the BOP's new version of
28 C.F.R. §550.58 as a valid exercise of the BOP's discretion in Lopez, see
531 	U.S. at 241-44, and the pertinent language in this former regulation is
identical to the relevant language in 28 U.S.C. §550.55, Hardy's reliance on
Roussos is misplaced. 5
5 Moreover, to the extent that Hardy's statutory-interpretation argument
is premised 	in 	part on 	Section 3621 (e)(2)(B)'s eligibility requirement of a
"nonviolent" offense, he would not be entitled to habeas relief because the
Lopez Court "made clear that in promulgating the policy by which it denies a
(footnote continued on next page)
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Finally, it appears that every federal court to address Hardy's claim in
this case has rejected it. See, e.g. , Britt v. Plumley, 787 F. App'x 431, 431-
32 (9th Cir. 2019) (unpublished) (affirming district court's denial of Section
2241 petition in which the petitioner, who was convicted of violating Section
841 	and received the two-level enhancement under USSG §201 .1 (b)(1 ),
challenged the BOP excluding him from a sentence reduction under Section
3621 (e)(2)(B)); 	Hendricks, 2020 WL 5430821, at *4 ("[T]he BOP had the
discretion to preclude from early release consideration those inmates whose
drug offenses under 21 U.S.C. §841 involved the possession of a firearm ." ).
Accordingly, 	because 	it 	plainly 	appears 	from 	Hardy's 	petition 	and 	the
documents attached thereto that he is not entitled to habeas relief, the Court
will dismiss his Section 2241 petition with prejudice.
sentence reduction if the offense involved the possession of a firearm , the
BOP was not interpreting the term 'nonviolent offense,' but was instead
acting 	pursuant to 	its 	discretion 	concerning 	whether 	to 	grant sentence
reductions under the statute. " Greene-McNeil v. Warden, 	No . 24-cv-414,
2025 WL 2740400, at * 10 (S.D.W. Va . June 9, 2025) (citing Lopez, 531 U.S.
at 235), report and recommendation adopted, 2025 WL 2736924 (S .D.W.
Va . Sept. 25, 2025).
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IV. 	CONCLUSION
For the reasons stated above, the Court will dismiss Hardy's Section
2241 habeas petition with prejudice and direct the Clerk of Court to close this
case. An appropriate Order follows.
DATE:
26-0192-01
HYE. MANNION
Unite 	States District Judge
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