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 Bullard recommends denying Vang's petition challenging the Bureau of Prisons' refusal to apply First Step Act sentence credits to any part of his sentence.
Federal prisoners serving sentences that include a conviction under 18 U.S.C. § 924(c) (using a firearm during a violent or drug trafficking crime) who are also serving time for other offenses that would not independently disqualify them from First Step Act time credits. These prisoners will be affected by the court's holding that the BOP must treat all consecutive sentences as a single aggregate term, making the § 924(c) conviction disqualifying for the entire combined sentence.
What happened
In Tou Vang v. Jared Rardin (Case No. 24-CV-2690), federal prisoner Tou Vang filed a petition asking a federal court to order the Bureau of Prisons (BOP) to apply earned time credits under the First Step Act of 2018 (FSA) toward his sentence. The FSA allows most federal prisoners who complete rehabilitation and other programming to earn credits that shorten their time in custody, but it specifically excludes prisoners convicted of certain offenses — including using a firearm during a drug trafficking crime under 18 U.S.C. § 924(c). Vang was convicted of both that gun offense (carrying a 60-month sentence) and a separate drug trafficking offense (carrying a 120-month sentence), which the sentencing court ordered to run back-to-back for a total of 180 months.
Vang made three arguments. First, he argued that the FSA's blanket exclusion of all § 924(c) prisoners from earning credits violated his constitutional right to due process. Second, he argued that even if the exclusion was valid, the BOP should still allow him to apply credits to the 120-month drug portion of his sentence, which would not be disqualifying on its own. Third, he argued that the BOP's policy of combining his two sentences into one for FSA purposes was an unlawful overreach of authority — what lawyers call a non-delegation problem.
Magistrate Judge Elsa M. Bullard recommends denying the petition and dismissing the case. On the due process claim, the court found that the opportunity to earn FSA credits is likely not a constitutionally protected interest, and that in any event Vang was never eligible to earn such credits given his § 924(c) conviction. On the second argument, the court found that a separate federal law, 18 U.S.C. § 3584(c), unambiguously requires multiple consecutive sentences to be treated as a single combined sentence for administrative purposes, meaning the BOP cannot carve out only the drug portion as eligible — a conclusion supported by multiple circuit courts. The non-delegation argument was rejected for the same reason: the BOP is simply following what § 3584(c) requires, not creating its own unauthorized policy. Because this is a magistrate judge's recommendation and not a final order, Vang has 14 days to file written objections for consideration by the district court judge.
The detailed version
- Vang v. Rardin · No. 0:24-cv-02690
- David Doty
- Sept. 22, 2025
Background
Petitioner Tou Vang is a federal prisoner who pleaded guilty in the Eastern District of Wisconsin to two offenses arising from the same prosecution: (1) a violation of 18 U.S.C. § 924(c), which criminalizes using or carrying a firearm during and in relation to a drug trafficking crime, for which he received a 60-month sentence; and (2) a drug trafficking crime under 18 U.S.C. § 841(b)(1)(A), for which he received a 120-month sentence. Because § 924(c) requires its sentence to run consecutively to the underlying drug offense, the total term of imprisonment is 180 months.
The First Step Act of 2018 (FSA) allows federal prisoners who participate in evidence-based recidivism reduction programming or productive activities to earn time credits that can be applied to shorten their sentences. However, the FSA expressly excludes certain categories of prisoners, including those convicted under § 924(c), from earning or applying those credits. 18 U.S.C. § 3632(d)(4)(D)(xxii).
The Bureau of Prisons (BOP) refused to allow Vang to apply any FSA time credits toward his sentence, citing his § 924(c) conviction as disqualifying. Vang filed a petition for a writ of habeas corpus — a court order challenging the legality of his imprisonment or its conditions — seeking relief on three theories.
Vang's Three Arguments
Argument 1: Due Process Challenge to the Categorical § 924(c) Exclusion
Vang argued that the FSA's blanket exclusion of all § 924(c) prisoners from earning time credits violates his due process rights under the federal Constitution. He pointed to the FSA's mandatory language — prisoners "shall" earn time credits upon participation in qualifying programming — as creating a constitutionally protected liberty interest that cannot be removed without procedural due process.
The court identified two independent problems with this argument. First, the court found that the opportunity to earn FSA time credits is likely not a protected liberty interest at all, citing Fiorito v. Fikes, No. 22-CV-0749-PJS-TNL, 2022 WL 16699472 (D. Minn. Nov. 3, 2022), which held that a prisoner placed in a Special Housing Unit who thereby lost the chance to earn FSA credits had no protected liberty interest in that opportunity. Second, and independently, the court noted that even if such a liberty interest existed, the FSA expressly carves out ineligible prisoners from the "shall earn" provision. Because Vang was never eligible to earn FSA credits due to his § 924(c) conviction, he never had an opportunity that could be "lost," and cannot claim a due process violation for the removal of something he never possessed.
Argument 2: Partial Eligibility for the Non-Disqualifying Drug Sentence
Vang's alternative argument was narrower: even accepting that his § 924(c) conviction disqualifies him from FSA credits for the 60-month portion of his sentence, he should be eligible to apply credits toward the 120-month drug trafficking portion, which would not independently disqualify him.
Vang framed the BOP's denial of credits as stemming from a BOP regulation interpreting an ambiguous provision of the FSA — specifically, arguing that the BOP's interpretation was unreasonable and should be invalidated.
The court rejected this framing. It found that the relevant rule does not come from an ambiguous BOP regulation, but from a separate and unambiguous federal statute: 18 U.S.C. § 3584(c), which provides 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." Under § 3584(c), the BOP cannot disaggregate Vang's 60-month and 120-month sentences into their component parts; it must treat them as a single 180-month sentence.
The court cited extensive and consistent authority from multiple federal circuits for this conclusion, including: - The Eighth Circuit in Clinkenbeard v. Murdock, No. 24-3127, 2025 WL 926451 (8th Cir. Mar. 27, 2025) - The Eighth Circuit in Tyler v. Garrett, No. 24-1147, 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, No. 25-1191, 2025 WL 1321386 (3d Cir. May 7, 2025) - The Fifth Circuit in Martinez v. Rosalez, No. 23-50406, 2024 WL 140438 (5th Cir. Jan. 12, 2024) - The Sixth Circuit in Oiler v. LeMaster, No. 24-5033, 2025 WL 1864875 (6th Cir. Jan. 10, 2025)
The court also noted that the cases Vang cited in support did not actually address his situation — they involved single convictions, not the aggregation of a § 924(c) sentence with a non-disqualifying conviction. The court further noted that the District of Minnesota's own precedent in Foos v. Eischen, 2023 WL 2795860 (D. Minn. Mar. 14, 2023), expressly held that a § 924(c) conviction precludes FSA credits across the entire aggregated term.
Argument 3: Non-Delegation Doctrine
Vang's third argument was that the BOP's sentence-aggregation policy violated the non-delegation doctrine — the constitutional principle that Congress cannot hand off its legislative powers to an executive agency without providing clear guidelines (an "intelligible principle"). Vang contended that Congress had not delegated authority to the BOP to devise an aggregation policy.
The court rejected this argument as resting on the same flawed premise as Argument 2. Because § 3584(c) unambiguously mandates that multiple sentences be treated as a single aggregate term, the BOP is not exercising delegated legislative power or creating its own policy — it is simply following a directive from Congress. There is therefore no non-delegation problem.
Recommendation and Procedural Posture
Magistrate Judge Bullard recommends that the petition for a writ of habeas corpus be denied and the case be dismissed. Because this is a Report and Recommendation from a magistrate judge — not a final order from a district court judge — it is not immediately appealable to the Eighth Circuit. Vang has 14 days after service of the Report and Recommendation to file written objections with the district court. Any opposing party then has 14 days to respond to those objections. The assigned district court judge will then review the recommendation.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.