Vang v. Rardin
- David Doty
- 0:24-cv-02690
- U.S. District Court · District of Minnesota
- 8
In Tou Vang v. Jared Rardin, Magistrate Judge Elsa M. Bullard recommended denying Tou Vang's petition for court-ordered release credits, finding that federal law required the Bureau of Prisons to treat his consecutive sentences as a single term and deny him all First Step Act time credits because one of his convictions involved illegally possessing or using a firearm during a drug crime.
Federal prisoners serving sentences that include a conviction under 18 U.S.C. § 924(c) (use or possession of a firearm during a drug-trafficking crime or crime of violence), particularly those who are also serving consecutive sentences for other offenses that would otherwise qualify them for First Step Act time credits.
What happened
In Tou Vang v. Jared Rardin, Tou Vang is a federal prisoner who pleaded guilty to two offenses: illegally possessing or using a firearm during a drug crime (a 60-month sentence) and a drug-trafficking crime (a 120-month sentence), with both sentences ordered to run one after the other for a total of 180 months. Under the First Step Act of 2018, federal prisoners can earn time credits by participating in programs designed to reduce reoffending, but prisoners convicted of certain crimes — including the firearms offense Vang was convicted of — are legally barred from earning those credits. Vang argued to the court that the Bureau of Prisons (BOP) should at least allow him to apply time credits toward the 120-month portion of his sentence for the drug offense, which on its own would not have disqualified him.
Vang raised three main arguments. First, he argued that the blanket exclusion of all prisoners with his type of firearms conviction from earning time credits violated his constitutional right to due process (the government's obligation to follow fair procedures before taking away something a person is legally entitled to). Second, he argued that even if the exclusion is valid, the BOP was wrongly applying it to his drug sentence, not just his firearms sentence. Third, he argued that allowing the BOP to combine his sentences and deny all credits was an improper handoff of lawmaking power from Congress to an agency — what lawyers call a non-delegation problem. The BOP responded that a separate federal law, 18 U.S.C. § 3584(c), requires it to treat all of a prisoner's consecutive sentences as one combined sentence, making his firearms conviction disqualifying for the entire combined term.
Magistrate Judge Bullard recommended denying Vang's petition and dismissing the case. On the due-process argument, Judge Bullard found that the opportunity to earn First Step Act time credits is likely not a protected legal right in the first place, and that in any event Vang was never eligible to earn those credits, so there was nothing taken from him unfairly. On the second argument, Judge Bullard found that the federal law requiring sentences to be treated as a single combined term (§ 3584(c)) unambiguously required the BOP to treat Vang's firearms conviction as disqualifying him from credits on his entire sentence — a conclusion supported by multiple federal appeals courts. On the third argument, the court found the BOP was simply following what Congress already required by law, not making up its own policy. This is a magistrate judge's recommendation, not a final order; the parties have 14 days to file written objections with the district court.
The detailed version
This case arises from a petition for a writ of habeas corpus — a legal action asking a court to order the government to release or otherwise relieve a prisoner from unlawful confinement conditions — filed by Tou Vang against Jared Rardin, a federal prison official. The matter was referred to United States Magistrate Judge Elsa M. Bullard, who issued a Report and Recommendation on September 22, 2025.
Background
Vang was convicted in the Eastern District of Wisconsin on two counts: (1) a violation of 18 U.S.C. § 924(c), which prohibits using or carrying a firearm during and in relation to a drug-trafficking crime or crime of violence, for which he received a 60-month sentence; and (2) a violation of 18 U.S.C. § 841(b)(1)(A), a drug-trafficking offense, for which he received a 120-month sentence. Because § 924(c) mandates that its sentence run consecutively to the underlying offense, the two terms were stacked, resulting in a total 180-month (15-year) aggregate sentence.
During incarceration, Vang participated in evidence-based recidivism reduction programs qualifying under the First Step Act of 2018 (FSA), 18 U.S.C. § 3632(d)(4). The FSA allows most prisoners who complete such programs to earn time credits applicable toward early release. However, § 3632(d)(4)(D)(xxii) expressly excludes from eligibility any prisoner convicted under § 924(c). The BOP refused to apply any FSA time credits to Vang's sentence on the basis of his § 924(c) conviction.
Vang's Three Arguments and the Court's Analysis
Argument 1: Due Process Challenge to the Categorical Exclusion
Vang argued that the FSA's use of mandatory language — that prisoners 'shall' earn time credits — creates a constitutionally protected liberty interest, and that categorically excluding all § 924(c) prisoners violates the Fifth Amendment's due process guarantee. Magistrate Judge Bullard identified two independent flaws in this argument. First, citing Fiorito v. Fikes, No. 22-CV-0749-PJS-TNL, 2022 WL 16699472 (D. Minn. Nov. 3, 2022), the court found that the opportunity to earn FSA time credits is likely not a protected liberty interest to begin with. Second, and independently, the statute itself expressly carves out 'ineligible prisoners' under § 3632(d)(4)(D) from the 'shall earn' mandate. Because Vang was never statutorily eligible to earn the credits, there was no opportunity that was 'lost,' and no due process protection was triggered.
Argument 2: Partial Eligibility for the Drug-Offense Portion of the Sentence
Vang argued that even if the categorical exclusion is valid, the BOP should apply FSA time credits to the 120-month portion of his sentence attributable to his drug offense, which standing alone would not disqualify him. He characterized the BOP's refusal as stemming from a BOP regulation that unreasonably interprets an ambiguous FSA provision.
The court rejected this argument based on 18 U.S.C. § 3584(c), which states that '[m]ultiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment.' Judge Bullard found this provision unambiguous and dispositive: the BOP is not exercising regulatory discretion by aggregating sentences — it is complying with a mandatory statutory command. The court cited a substantial body of circuit and district court authority in accord, including the Eighth Circuit's unpublished decisions in Clinkenbeard v. Murdock, 2025 WL 926451 (8th Cir. Mar. 27, 2025), and Tyler v. Garrett, 2024 WL 5205501 (8th Cir. Dec. 24, 2024); the Second Circuit in Giovinco v. Pullen, 118 F.4th 527 (2d Cir. 2024); the Third Circuit in Colotti v. Peters, 2025 WL 1321386 (3d Cir. May 7, 2025); the Fifth Circuit in Martinez v. Rosalez, 2024 WL 140438 (5th Cir. Jan. 12, 2024); and the Sixth Circuit in Oiler v. LeMaster, 2025 WL 1864875 (6th Cir. Jan. 10, 2025). Cases cited by Vang were distinguished as addressing single-conviction scenarios, not the multi-conviction aggregation question presented here.
Argument 3: Non-Delegation Doctrine
Vang argued that the BOP's aggregation policy constituted an unauthorized delegation of congressional power to an executive agency. The court rejected this argument as resting on the same flawed premise as Argument 2 — namely, that the BOP was exercising independent regulatory authority to create an aggregation rule. Because § 3584(c) itself mandates aggregation, the BOP is following existing law, not exercising delegated policymaking authority.
Recommendation
Magistrate Judge Bullard recommended that Vang's habeas petition be DENIED and the case DISMISSED. This is a Report and Recommendation, not a final order. Under Local Rule 72.2(b)(1), any party may file written objections within 14 days of being served. The Report and Recommendation is not directly appealable to the Eighth Circuit Court of Appeals; objections must first be addressed by the district court judge.
Reviewer note from the AI+
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.