F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAY 26 2000
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 STEVEN LAWRENCE SCHARDEIN,

           Petitioner-Appellee,
 v.                                                       No. 00-6001
 L.E. FLEMING,                                      (D.C. No. 99-CV-519-L)
                                                          (W.D.Okla.)
           Respondent-Appellant.


                             ORDER AND JUDGMENT           *




Before SEYMOUR , Chief Judge, EBEL and BRISCOE, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Petitioner Steven Schardein, a federal inmate housed at the Federal

Correctional Institution in El Reno, Oklahoma (FCI El Reno), filed this habeas

action against respondent L. E. Fleming, the warden at FCI El Reno, challenging


       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
a nationwide Bureau of Prisons regulation and program statement that rendered

him ineligible for early release consideration pursuant to § 32001 of the Violent

Crime Control and Law Enforcement Act of 1994, codified at 18 U.S.C.

§ 3621(e)(2)(B). The district court granted habeas relief in favor of Schardein.

Fleming now appeals. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and

affirm.

      Fleming asserts the district court erred in concluding that the BOP

regulation and program statement in question conflict with the clear language of §

3621(e)(2)(B). We recently rejected the precise arguments asserted by Fleming

on appeal. See Ward v. Booker, 

(10th Cir. 2000). In his appellate

brief, Fleming acknowledges the decision in Booker “is directly on point with this

case,” and simply asks the panel to “hold this case pending the resolution of [an]

en banc suggestion and issuance of the mandate” in Booker. Respondent’s Aplt

Brief at v. This court entered an order denying the petition for rehearing in

Booker on April 4, 2000, and the mandate issued in that case on April 12, 2000.

Booker is binding on this panel and, as appropriately noted by Fleming, directly

controls the outcome of this appeal.




      The order of the district court conditionally granting Schardein’s petition


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for writ of habeas corpus is AFFIRMED.

                                             Entered for the Court

                                             Mary Beck Briscoe
                                             Circuit Judge




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