IRVIN Q. HINES, Petitioner, v. JOSEPH H. CRABTREE, Warden, Federal Correctional Institution, Sheridan, Oregon, Respondent.



Civil No. 96-498-HA



UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON



935 F. Supp. 1104; 1996 U.S. Dist. LEXIS 14001



June 19, 1996, Decided

June 19, 1996, FILED













COUNSEL: [**1] For IRVIN QUINN HINES, Petitioner: Stephen R. Sady, Chief Deputy, Wendy R. Willis, Federal Public Defender, Portland, Or.


For JOSEPH CRABTREE, Warden FCI, Sheridan OR, Respondent: Kristine Olson, United States Attorney, District of Oregon, Kenneth C. Bauman, Assistant United States Attorney, Portland, Or.



JUDGES: Ancer L. Haggerty, United States District Judge



OPINIONBY: Ancer L. Haggerty



OPINION:

[*1105] OPINION and ORDER


HAGGERTY, Judge:

The petitioner, Irvin Q. Hines, is a federal prisoner incarcerated at the Federal Correctional Facility at Sheridan, Oregon ("FCI Sheridan"). The respondent, Joseph H. Crabtree, is the warden of FCI Sheridan, and is therefore petitioner's custodian and the proper respondent in this action. Fed. R. Civ. P. 81(a)(2); Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992). petitioner has filed a habeas corpus petition alleging that his statutory and due process rights are being violated by the decision of the Bureau of Prisons ("BOP") to exclude him from eligibility for a sentence reduction notwithstanding his successful completion of a residential substance abuse treatment program established under 18 U.S.C. § 3621(e). Petitioner has also filed a motion for immediate release, alleging that once his [**2] sentence is properly reduced he will have served his present term of imprisonment.

Petitioner argues, and I agree, that the instant action for habeas corpus relief is controlled by this court's recent decision in Davis v. Crabtree, 923 F. Supp. 166 (D. Or. 1996). n1 Respondent, however, disputes the correctness of Davis. Moreover, respondent has apparently decided to ignore the applicability of Davis to similarly situated prisoners, and instead, individually challenge each habeas petition raising the identical issue decided in Davis. Because of the uncompromising posture of respondent's position, I will now attempt to more fully explain the rationale which guided me in deciding Davis.



n1 note that the case of Davis v. Crabtree, 923 F. Supp. 166, is currently on appeal in the Ninth Circuit Court of Appeals.


BACKGROUND


1. Controlling Statute, Implementing Regulation and BOP Program Statements

As part of the Violent Crime Control and Law Enforcement Act ("VCCLEA") of 1994, [**3] Congress required the BOP to "make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse." 18 U.S.C. § 3621(b). In order to carry out this mandate, Congress further directed that the BOP shall, "subject to the availability of appropriations, provide residential substance abuse treatment (and make arrangements for appropriate aftercare)" for an increasing percentage of "eligible prisoners" n2 over three years. 18 U.S.C. § 3621(e). As an incentive to encourage prisoner participation in, and successful completion of, substance abuse treatment programs established under the VCCLEA, Congress authorized the BOP to reduce the period of custody served by a prisoner "convicted of a nonviolent offense" by up to one year for successfully completing the program. 18 U.S.C. § 3621(e)(2)(B). n3



n2 Congress defined the term "eligible prisoner" within the meaning of the VCCLEA as "a prisoner who is (i) determined by the Bureau of Prisons to have a substance abuse problem; and (ii) willing to participate in a residential substance abuse treatment program." 18 U.S.C. § 3621(e)(5)(B). There is no dispute that petitioner is an "eligible prisoner" under this definition. Moreover, while such status may be necessary for admission into a substance abuse treatment program, it is not a specific criterion for early release based upon successful completion of the program. See infra n.8. [**4]




n3 18 U.S.C. § 3621(e)(2)(B) provides:

The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.


[*1106] The BOP subsequently issued a regulation, set forth at 28 C.F.R. § 550.58, to establish specific criteria for a prisoner's eligibility for a sentence reduction under § 3621(e)(2)(B). The regulation provides, in pertinent part:

An inmate who completes a residential drug abuse treatment program during his or her current commitment may be eligible for early release by a period not to exceed 12 months . . . unless the inmate's current offense is determined to be a crime of violence as defined in 18 U.S.C. 924(c)(3), or unless the inmate has a prior federal and/or state conviction for homicide, forcible rape, robbery, or aggravated assault.


28 C.F.R. § 550.58. The BOP has also promulgated two Program Statements concerning the § 3621(e)(2)(B) incentive-based program. The [**5] first BOP Program Statement, P.S. 5330.10 dated May 25, 1995, is entitled "Drug Abuse programs Manual, Inmate" and has the following stated purpose:


To establish operational policy and procedural guidelines for the delivery of drug abuse treatment services and to describe the general philosophy of treatment guiding all Bureau drug abuse programs. Further, this Manual establishes implementation guidelines for the Violent Crime Control and Law Enforcement Act of 1994, specifically, amendments to 18 U.S.C. § 3621, Subtitle T, Substance Abuse Treatment in Federal Prisons.


Respondent's Answer to Petition for Writ of Habeas Corpus Filed Under 28 U.S.C. § 2241 (hereinafter, "Respondent's Answer") Ex. A, p. 1. Chapter 6 of Program Statement 5330.10 is entitled "Early Release Qualifications" and it recites verbatim the above-quoted language of 28 C.F.R. § 550.58.

The second BOP Program Statement, P.S. 5162.02 dated July 24, 1995, is entitled "Definition of Term, 'Crimes of Violence'" and has the following stated purpose:


To implement various portions of the Violent Crime and Law Enforcement Act of 1994 (VCCLEA) that make reference to "nonviolent offense," and "crime [**6] of violence," specifically, . . . Section 32001, Substance Abuse Treatment in Federal Prisons. This Program Statement defines "crime of violence" as that term is used in these sections of the VCCLEA. The definition includes broad statutory language, as well as a framework for determining which specific criminal offenses fall within the statutory definition.


Respondent's Answer, Ex. B, p. 1 (emphasis in original). Program Statement 5162.02 states that "case management staff will review relevant documents to determine whether an inmate has committed a crime of violence." Id.

Program Statement 5162.02 expressly adopts and quotes the statutory definition of "crime of violence" contained in 18 U.S.C. § 924(c)(3). n4 That statutory provision reads, in part:


The term "crime of violence" means an offense that is a felony and --


(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or


(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.


Program Statement 5162.02 then [**7] proceeds, in Section 7, to enumerate certain offenses which are always to be considered crimes of violence. Further, other sections of Program Statement 5162.02 enumerate offenses which might be crimes of violence depending on particular facts of the offense. For example, pursuant to Section 9, an offense which is not a per se crime of violence, will be so construed if, at the time of sentencing, the court makes a determination that the offense involved [*1107] violence, and that determination is based upon a specific offense characteristic in the pre-sentence report.



n4 Program Statement 5162.02 does not contain a distinct definition of the term "nonviolent offense," which is used in the underlying statute, 18 U.S.C. § 3621(e)(2)(B). However, the BOP appears to have used the terms "nonviolent offense" and "crime of violence" interchangeably, and thus, I find that for purposes of interpreting relevant BOP regulations and program statements, a "nonviolent offense" is simply a crime that does not fall within the definition of "crime of violence."


[**8]


2. Petitioner's Underlying Offense and Participation in Substance Abuse Treatment Program

Petitioner's current term of confinement stems from a conviction for being a former felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), as well as for a supervised release violation for the same conduct. Following a plea of guilty to the above charges, petitioner was sentenced to 65 months in the custody of the BOP. At present, petitioner's release date is calculated as April 22, 1997.

While in custody, petitioner successfully completed a 500-hour residential drug and alcohol treatment program (hereinafter, the "Program") authorized under 18 U.S.C. § 3621(e). n5 Petitioner requested reduction of his sentence based on his successful completion of the Program. The BOP denied this request on the grounds that petitioner was convicted of a crime of violence as defined in the relevant BOP Program Statement. Specifically, petitioner's crime of conviction, felon in possession of a firearm, is classified as a per se "crime of violence" in Program Statement 5162.02. In other words, prisoners, like petitioner, convicted under 18 U.S.C. § 922(g) are automatically rendered [**9] ineligible for the statutorily prescribed sentence reduction.



n5 Respondent does not dispute that petitioner has successfully completed the Program.


Petitioner is currently pursuing administrative remedies to obtain his desired sentence reduction.


3. Controlling Precedent

In Davis v. Crabtree, 923 F. Supp. 166, the prisoner/petitioner was convicted for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The prisoner successfully completed a residential drug and alcohol treatment program established under 18 U.S.C. § 3621(e) and requested a reduction in his guideline sentence. The BOP denied his request for a sentence reduction pursuant to Program Statement 5162.02, which categorically excludes prisoners convicted under § 922(g). The prisoner exhausted his administrative remedies and filed a habeas petition in this court.

In granting the prisoner's habeas petition and ordering the BOP to award him a 12-month sentence reduction, I rejected the BOP's argument that it [**10] was vested with authority to define "crime of violence" in a manner inconsistent with governing case law. Instead, I followed the Ninth Circuit's clear line of cases which hold that possession of a firearm by a felon is not a "crime of violence" as that term is defined in 18 U.S.C. § 924(c)(3). Id. at 166-67.

DISCUSSION


1. Exhaustion of Administrative Remedies

Petitioner concedes that he has not yet exhausted his administrative remedies, but argues that this court should waive the exhaustion requirement and consider the merits of his petition because pursuit of administrative relief would be futile, and because a favorable decision on the merits might result in the immediate granting of the requested relief. It is well settled that exhaustion of administrative remedies is not jurisdictional. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990). Indeed, this district court has previously recognized that the exhaustion requirement may be excused where a prisoner's efforts to secure administrative relief would constitute an exercise in futility, and where the prisoner may be entitled to some immediate relief. Dougherty v. Crabtree, 812 F. Supp. 1089, 1091 (D. [**11] Or. 1991), aff'd, 981 F.2d 1258 (9th Cir. 1992).

In the instant action, given the BOP's continued position that Program Statement 5162.02 remains valid and enforceable in its original terms, and given the categorization of petitioner's conviction under 18 U.S.C. § 922(g) as a "crime of violence," I find that it would be futile for petitioner to pursue his administrative remedies. Moreover, because petitioner's projected release date is less than a year from today's date, I find that if he is deemed eligible for a sentence reduction then he might be entitled to [*1108] immediate relief. Accordingly, I will excuse the exhaustion requirement and consider the merits of the habeas petition. n6



n6 As the Dougherty court made clear, the general rule is that a petitioner must exhaust administrative remedies, and that while that rule is waived in this case, "the court will continue to apply, [the] rule except when unique circumstances require its waiver." 812 F. Supp. at 1091.



2. Eligibility under 18 U.S.C. [**12] § 3621(e)(2)(B)

The narrow question to be decided here is whether the BOP properly categorized a conviction for felon in possession of a firearm under 18 U.S.C. § 922(g) as a "crime of violence." n7



n7 I note that one United States Magistrate Judge in the Southern District of West Virginia has recommended that BOP Program Statement 5162.02 be held unlawful and set aside for failure to comply with the notice and comment provisions of the Administrative Procedure Act ("APA"), 5 U.S.C. § 553. More specifically, in Wiggins v. Wise, 1996 U.S. Dist. LEXIS 19676, Civil No. 1:96-0113, Findings and Recommendation (S.D. W. Va. May 29, 1996), the Magistrate Judge found that Program Statement 5162.02 is inconsistent with the underlying regulation, 28 C.F.R. § 550.58, "because the Program Statement significantly, alters and expands the statutory definition of "crime of violence" in Section 924(c)(3) which was adopted by the regulation." Id. at 44-45. As a consequence of this substantive change in the existing regulation, the Magistrate found that Program Statement is a legislative rule (as opposed to an interpretative rule exempt from APA requirements of notice and comment), and thus, is subject to the notice and comment requirements of the APA. The Magistrate's Findings and Recommendation has been referred to a United States District Court Judge, however, I am currently unaware of whether the Article III Judge has issued any ruling concerning the adoption or rejection of the Magistrate's recommendations.

In the case before this court, I need not reach the broader question of the legality of Program Statement 5162.02. The issue has neither been raised nor is the resolution of the issue vital to the determination of the narrow question presented.


[**13]

As indicated above, in creating the incentive-based program under § 3621(e)(2)(B), Congress expressly prohibited the BOP from considering a sentence reduction for prisoners not convicted of a "nonviolent offense." n8 The term "nonviolent offense" is not discretely defined by Congress or the BOP. Rather, the BOP has determined that a "nonviolent offense" is a crime that does not fall within its definition of "crime of violence," which in turn is the definition contained in 18 U.S.C. § 924(c)(3). See 28 C.F.R. § 550.58. n9



n8 The only other congressional commands were that the BOP not consider prisoners who had not successfully completed a qualifying treatment program, see Bowser v. Crabtree, Civil No. 96-44-HA, slip op. at 2-7 (D. Or. Apr. 19, 1996) (affirming, on reconsideration, the holding that successful completion of a treatment program is a prerequisite to eligibility for any sentence reduction under § 3621(e)(2)(B)), and that any sentence reduction may not exceed one year. See Sesler v. Pitzer, 926 F. Supp. 130, 1996 WL 262798 (D. Minn. 1996). Neither of these rules are at issue in the instant action. [**14]




n9 The following supplementary information provided by the BOP at the time it published the proposed regulation in the Federal Register supports the notion that the BOP has defined "nonviolent offense" in terms of the § 924(c)(3) definition of "crime of violence":

New § 550.58 establishes procedures to be used by the Bureau in determining eligibility for early release and for determination of the length of the reduction in sentence. In keeping with the statutory provision that possible reduction in sentence is applicable to an inmate convicted of a nonviolent offense, an inmate whose current offense falls under the definition in 18 U.S.C. 924(c)(3) of a crime of violence is excluded from consideration.


Although the BOP has adopted the statutory definition of "crime of violence" contained in 18 U.S.C. § 924(c)(3), respondent argues that the BOP is not strictly confined to judicial interpretations of that definition. In other words, respondent argues that in adopting the statutory definition, the BOP did not also adopt the body of case law construing § 924(c)(3). I disagree. [**15]

In Maislin Indus., U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 111 L. Ed. 2d 94, 110 S. Ct. 2759 (1990), and again in Lechmere, Inc. V. NLRB, 502 U.S. 527, 117 L. Ed. 2d 79, 112 S. Ct. 841 (1992), the Supreme Court succinctly articulated the rule that an agency, even one charged with the administration of a statue, is not free to interpret a statute in direct contravention of well settled case law. The Court expressly stated: "Once we have determined a statute's [*1109] clear meaning, we adhere to that determination under the doctrine of stare decisis, and we judge an agency's later interpretation of the statute against our prior determination of the statute's meaning." Maislin, 497 U.S. at 131 (emphasis in original); Lechmere, 502 U.S. at 536-37 (quoting Maislin). The Court has recently reaffirmed this rule in Neal v. United States, 133 L. Ed. 2d 709, 116 S. Ct. 763 (1996), where the Court held that stare decisis required it to adhere to a prior statutory interpretation pertaining to the sentencing calculation of a certain drug, in the face of a newly conflicting methodology set forth by the United States Sentencing Commission in the Sentencing Guidelines. [**16] 116 S. Ct. at 768-69. In sum, an agency's interpretation of a statute, irrespective of any deference which may be due to that interpretation, "cannot compel a court to forgo the principle of stare decisis and abandon a construction previously made." Aguirre v. INS, 79 F.3d 315, 317 (2d Cir. 1996); see also United States v. Novey, 78 F.3d 1483, 1486 (10th Cir. 1996).

The fact that no court has interpreted the term "nonviolent offense" found in 18 U.S.C. § 3621(e)(2)(B) is of little consequence as the BOP itself has construed that term to have the same meaning as the term "crime of violence" found in 18 U.S.C. § 924(c)(3). Thus, it is the § 924(c)(3) definition of "crime of violence" which is now at issue. As I noted in Davis, the Ninth Circuit has explicitly held that possession of a firearm by a felon does not constitute a crime of violence under § 924(c)(3):

We hold that possession of a firearm by a felon is not a "crime of violence" under § 924(c). Commission of the crime requires no act other than possession of the firearm nor, consistent with interpretations given similar provisions, does it pose a "substantial risk" that physical force may be used against a [**17] person or property.


United States v. Canon, 993 F.2d 1439, 1441 (9th Cir. 1993). Having adopted the § 924(c)(3) definition of "crime of violence," the BOP is not at liberty to disregard those cases interpreting that statutory definition; nor am I at liberty to disregard those same cases in assessing the BOP's interpretation of the statutory definition. While Program Statement 5162.02, on its face, purports to apply the § 924(c)(3) definition of "crime of violence" by "determining which specific criminal offenses fall within the statutory definition," the BOP has impermissibly included a conviction for felon in possession of a firearm on the list of per se crimes of violence. The BOP simply does not have the authority to override or amend § 924(c)(3) as construed by the courts. See Neal, 116 S. Ct. at 766, 768. It follows that the BOP improperly excluded petitioner from eligibility for a sentence reduction under 18 U.S.C. § 3621(e)(2)(B). n10



n10 I am cognizant of the rationale advanced to support the BOP's approach of defining § 924(c)(3) in terms of specific offenses. Respondent explains that the BOP's approach "ensures that . . . [the] rehabilitative program will be used to reduce the period of custody of only those inmates whose offense conduct was truly nonviolent." Respondent's Answer, at 9. Further, in Wiggins, the Magistrate noted that Judith Simon Garrett, Assistant General Counsel in the BOP's Legislative and Correctional Issues Branch, who participated in drafting the BOP Program Statements, argued that the BOP approach "guarantees uniform application of the early release statute." Findings and Recommendation, at 19.

I do not, however, find the explanations proffered to be sufficiently compelling to warrant reconsideration of the Ninth Circuit's interpretation of § 924(c)(3), even if such authority is vested in this court. See Aguirre, 79 F.3d at 317 (holding that a court is "not prevented from making an independent decision whether a particular case now requires a revised reading of a statute); cf. United States v. Jackson, 59 F.3d 1421, 1422 (2d Cir. 1995) (even if agency's pending interpretation of a statutory term "might have influenced us to adopt a congruent interpretation . . . as an original matter, once we have construed the statute, we will not reinterpret it in the absence of new guidance from Congress").


[**18]

I am mindful that a prisoner who successfully completes a residential drug abuse treatment program may properly be excluded if the prisoner "has a prior federal and/or state conviction for homicide, forcible rape, robbery, or aggravated assault." 28 C.F.R. § 550.58. I am further mindful of the fact that petitioner has a prior conviction for robbery. However, the BOP's exclusionary [*1110] decision as to petitioner was based solely on the fact that his crime of conviction, violation of 18 U.S.C. § 922(g), was a "crime of violence" per se. Respondent admits that "the BOP did not deny Inmate Hines the one year reduction in his guideline sentence based on his Robbery II conviction." Respondent's Answer, at 7 n.1. Accordingly, petitioner's prior conviction does not present cause to deny his request for an order directing the BOP to treat him as eligible for a sentence reduction under § 3621(e)(2)(B).

As a final matter, I recognize that a prisoner's mere eligibility for a sentence reduction does not guarantee that such a reduction will be granted. The underlying statute unmistakably gives the BOP discretion concerning the reduction of a prisoner's sentence upon successful completion of a qualifying [**19] treatment program. Nevertheless, respondent has made it clear that "the BOP has decided . . . that all eligible inmates who successfully complete[] the 500 hour residential drug and alcohol treatment program [will] receive a one-year reduction in his or her sentence." Respondent's Answer, at 11. Accordingly, no reason exists to deny petitioner's request for a one-year sentence reduction.

CONCLUSION

For the reasons provided above, petitioner's petition for a writ of habeas corpus (doc. # 1) is GRANTED. Specifically, I find that petitioner is a "prisoner convicted of a nonviolent offense," within the meaning of 18 U.S.C. § 3621(e)(2)(B), and therefore, is eligible for a reduction in his guideline sentence under that statutory provision. Further, I hereby direct the Bureau of Prisons to reduce petitioner's sentence by one year.

In light of the sentence reduction ordered herein, petitioner appears to be entitled to immediate release from custody. Accordingly, petitioner's motion for immediate release (doc. # 3) is conditionally GRANTED. I hereby direct the Bureau of Prisons to immediately release petitioner from custody or show cause, no later than June 28, 1996, why petitioner [**20] should not be immediately released.

IT IS SO ORDERED.


Dated this 19 day of June, 1996.

Ancer L. Haggerty

United States District Judge

ALBERT RAYMOND DAVIS, Petitioner, v. JOSEPH CRABTREE, Warden, Federal Correctional Institution, Sheridan, Oregon, Respondent.



Civil No. CV 95-1739-HA



UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON



923 F. Supp. 166; 1996 U.S. Dist. LEXIS 8165



February 29, 1996, Decided

March 1, 1996, FILED







DISPOSITION: [**1] Petitioner's Petition for Writ of Habeas Corpus granted.



COUNSEL: STEPHEN R. SADY, Federal Public Defender, Portland, Oregon, Attorney for Plaintiff.


KRISTINE OLSON, United States Attorney, District of Oregon, KENNETH C. BAUMAN, Assistant United States Attorney, Portland, Oregon, Attorneys for Defendant.



JUDGES: ANCER L. HAGGERTY, U. S. DISTRICT COURT JUDGE



OPINIONBY: ANCER L. HAGGERTY



OPINION:

[*166] OPINION


HAGGERTY, Judge:

The petitioner, Albert Raymond Davis, is an inmate at the Federal Correctional Facility at Sheridan Oregon. The respondent, Joseph H. Crabtree, is the warden of Federal Correctional Institute at Sheridan, Oregon and is therefore inmate Davis' custodian and the proper respondent in this action. The petitioner asserts that his statutory and due process rights are being violated by the Bureau of Prisons' revocation of his eligibility for reduction of his period of custody under 18 USC § 3621(e).

ANALYSIS

For the following reasons, this court concludes that petitioner is entitled to a reduction. Petitioner alleges that since he has completed the residential drug and alcohol treatment program authorized under 18 USC § 3621(b), he should have his guideline sentence reduced [**2] by one year as authorized under 18 USC § 3621(e)(2)(B). The Bureau of Prisons (BOP) has refused to give petitioner such a reduction pursuant to its Program Statement 5330.10, (drug abuse program's inmate manual, May 25, 1995), and Program Statement 5162.02, (definition of "crimes of violence", July 24, 1995).

1. Exhaustion of Administrative Remedies

It is uncontroverted that petitioner has exhausted his administrative remedies.

2. Eligibility

There is no dispute that petitioner has successfully completed a residential drug abuse treatment program and received the requisite certificate. Petitioner was convicted of possession of a firearm by a felon. The BOP has denied petitioner's request for the one year guideline reduction after determining that petitioner had been convicted of a "crime of violence." However, the Ninth Circuit has specifically held that possession of a firearm by a felon is not a "crime of [*167] violence" under § 924(c). United States v Canon, 993 F.2d 1439, 1441 (9th Cir. 1994). Respondent argues that decisional case law is inapplicable here because the BOP is carrying out a rehabilitative program authorized by Congress and that therefore, the court should [**3] give deference to their definition Congress, however, used the term "convicted of a nonviolent offense" without defining the term. This court believes that the categorical approach approved by the Ninth Circuit is the proper way to interpret the language. See United States v. Amparo, 68 F.3d 1222, 1224 (9th Cir. 1995).

CONCLUSION

Based on the foregoing, I find that petitioner is eligible for the one year reduction in his guideline sentence. I hereby direct the Bureau of Prisons to give him such credit. Accordingly, petitioner's Petition for Writ of Habeas Corpus is granted.

DATED this 29 of February, 1996

ANCER L. HAGGERTY

U. S. DISTRICT COURT JUDGE

Downey v. Crabtree, 100 F.3d 662 (9th Cir. 10/25/1996)

[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


[2] No. 96-35471


[4] filed: October 25, 1996.


[5] BRUCE DOWNEY, PETITIONER-APPELLEE,
v.
JOSEPH CRABTREE, WARDEN, FEDERAL CORRECTIONAL INSTITUTION, RESPONDENT-APPELLANT.


[6] Appeal from the United States District Court for the District of Oregon. D.C. No. CV-95-01801-ALH. Ancer L. Haggerty, District Judge, Presiding.


[7] Thomas M. Gannon, United States Department of Justice, Washington, D.C., for the respondent-appellant.


[8] Stephen R. Sady, Chief Deputy Federal Public Defender, and Wendy R. Willis, Assistant Federal Public Defender, Portland, Oregon, for the petitioner-appellee.


[9] Before: Ruggero J. Aldisert,*fn* Harry Pregerson, Thomas G. Nelson, Circuit Judges. Opinion by Judge Aldisert.


[10] Author: Aldisert


[11] ALDISERT, Circuit Judge.


[12] This appeal by Joseph H. Crabtree, warden of the Federal Correctional Institution, Sheridan, Oregon, requires us to decide if the federal Bureau of Prisons properly defined "convicted of a nonviolent offense" as set forth in 18 U.S.C. § 3621(e)(2)(B) of the Violent Crime Control and Law Enforcement Act of 1994. Such a determination is necessary to review whether the district court properly held that Petitioner Bruce Downey, a federal prisoner, is entitled to be considered by the Bureau of Prisons for a sentence reduction as authorized by Congress based upon his completion of a drug-treatment program while incarcerated. The district court disagreed with the Bureau's interpretation of § 3621 and granted Downey's petition for a writ of habeas under 22 U.S.C. § 2241. The warden appeals that decision.


[13] The district court held that Downey successfully completed a residential drug-abuse treatment program, received the requisite certificate and was, therefore, eligible for a sentence reduction of up to one year. The court decided the Bureau of Prisons' determination that Downey was convicted of a "crime of violence" and, thus, ineligible for a sentence reduction was contrary to governing case law and directed the Bureau to grant Downey a one-year sentence reduction for his completion of the treatment program.


[14] In administering the sentence-reduction provisions authorized by Congress, the Bureau categorically rules that a sentence enhancement for firearms use or possession automatically converts a predicate offense to a crime of violence. Sentence reductions authorized under § 3621(e)(2)(B) are denied irrespective of whether the predicate offense itself is considered nonviolent. This appeal requires us to decide several separate, but related, issues: whether the Bureau has exclusive power to interpret the governing statute; if not, whether its interpretation of the statutory language "convicted of a nonviolent offense" is congruent with decisions of this court and those of our sister circuits; and, if not, whether a federal court has the power to grant habeas corpus relief in this case or is required to remand to the Bureau for reconsideration in light of our interpretation of the law.


[15] We review de novo a district court's decision to grant or deny a petition for writ of habeas corpus. Weston v. Kernan, 50 F.3d 633, 636 (9th Cir.), cert. denied, 133 L. Ed. 2d 247, 116 S. Ct. 351 (1995); Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir. 1991). The district court had subject matter jurisdiction under 28 U.S.C. §§ 2241(a), (c)(3), and 1331. We have jurisdiction under 28 U.S.C. § 1291. The appeal was timely filed pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure.


[16] I.


[17] Duane Downey entered a guilty plea in the District of Oregon on an indictment charging him with violation of federal drug laws. At sentencing, he received a sentence enhancement because firearms were found at the location where he was arrested for the illegal narcotics operation. At the time of his arrest, police seized firearms, 150.26 grams of methamphetamine and $9,385 in cash from the residence at which he was located. Downey was eventually indicted under federal law for possession of more than 100 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1); it is that specific offense to which he pleaded guilty and for which he was subsequently convicted. On January 14, 1991, he was sentenced to imprisonment for 92 months and four years of supervised release. The district court applied a two-level sentence enhancement authorized under the United States Sentencing Guidelines for offenses involving drugs if a dangerous weapon was possessed. U.S.S.G. § 2D1.1(b)(1)(1995).


[18] While in federal custody, Downey completed the Bureau's 500-hour substance-abuse treatment program. Such programs are offered pursuant to congressional enactment, providing:


[19] The Bureau shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse.


[20] 18 U.S.C. § 3621(b). He received his certificate of successful completion of the treatment program on February 3, 1995, and subsequently requested the Bureau to reduce his sentence as authorized by Congress in the Violent Crime Control and Law Enforcement Act of 1994. The Bureau may reduce prisoners' sentences consistent with that Act, which provides in relevant part:


[21] (2) Incentive for prisoners' successful completion of treatment program. -


[22] (B) Period of custody. - The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.


[23] 18 U.S.C. § 3621(e)(2)(B)(1994).


[24] On October 4, 1995, the Bureau denied Downey eligibility for a sentence reduction, a denial based on the Bureau's categorical exclusion from consideration for sentence reduction of inmates who, when sentenced, received a base offense-level enhancement under the Sentencing Guidelines for possession of a dangerous weapon. U.S.S.G. § 2D1.1(b)(1). It bears repetition that Downey was convicted under 21 U.S.C. § 841(a)(1) for possession of methamphetamine, not for possession of firearms under § 924(c). The sentencing Judge applied a two-point sentence enhancement authorized in § 2D1.1(b)(1) for the firearms seized from the residence where Downey and the methamphetamine were found.


[25] Downey petitioned the district court for a writ of habeas corpus, challenging the Bureau's denial of his eligibility for a sentence reduction. Addressing only the § 3621 claim, the court first concluded that Downey was not convicted of a crime of violence and then ordered the Bureau to give him a one-year sentence reduction. Thus, the court granted Downey's Petition for Writ of Habeas Corpus. Downey v. Crabtree, 923 F. Supp. 164, 165 (D. Or. 1996). This appeal by the government followed.


[26] II.


[27] Our primary task is to construe the phrase "convicted of a nonviolent offense" as set forth in 18 U.S.C. § 3621(e)(2)(B). The statute does not define the term.


[28] The Bureau of Prisons promulgated certain Bureau Program Statements ("BOP P.S.") to assist its staff in interpreting the statute:


[29] 6.1 [ Consideration for early release § 550.58. An inmate who completes a residential drug abuse treatment program during his or her current commitment may be eligible for early release by a period not to exceed 12 months,


[30] , unless the inmate is an INS detainee,


[31] , or unless the inmate's current offense is determined to be a crime of violence as defined in 18 U.S.C. [ § ] 924 (c)(3),


[32] BOP P.S. 5330.10 Drug Abuse Programs Manual, Inmate (May 25, 1995); ER 76.


[33] For sentencing purposes, 18 U.S.C. § 924(c)(3) (1984) ("Penalties") defines the term "crime of violence" as:


[34] an offense that is a felony and -


[35] (A) has an element the use, attempted use, or threatened use of physical force against the person or property of another, or


[36] (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.


[37] BOP P.S. 5162.02, Definitions of "Crimes of Violence" (July 24, 1995), ER 89 (quoting 18 U.S.C. § 924(c)(3) (1984).)


[38] Under the BOP P.S. 5162.02 framework, the crime for which Downey was convicted, 21 U.S.C. § 841(a) (Controlled Substances Act), is categorized among the criminal offenses that "may" be crimes of violence "depending on the specific offense characteristic assigned." BOP P.S. 3162.02 (9)(c); ER 93, 95. Section 924 (penalties for firearms violations) is similarly categorized as a criminal offense that "may" be a crime of violence "depending on a variety of factors." BOP P.S. 5162.02 (10)(c); ER 95-96. For such crimes, the Bureau looks to the presentence investigation report for guidance on whether to define an offense as violent or nonviolent.


[39] For crimes listed in BOP P.S. 3162.02, section "(9)", which includes Downey's crime of conviction, the Bureau examines the "Specific Offense Characteristics" in the presentencing report to ascertain whether the district court found the offense involved violence. In the absence of any indication of the district court's findings on the violence question in the presentence investigation report, the Bureau's case management staff will examine the Sentencing Guidelines applied to the particular case to determine whether the sentencing court found the offense involved the use of force. BOP P.S. 5162.02 (9); ER 93. The Bureau categorically denies early-release credit for inmates who are convicted under § 841(a) if they also receive a sentence enhancement for possession of firearms. Downey is an example.


[40] An analysis of the statutory language, the Bureau's policy statements and the categorical framework utilized to implement the sentence-reduction plan for inmates who complete a treatment program discloses the following seeds of controversy:


[41] The controlling statute speaks in terms of "convicted of a nonviolent offense."


[42] The Bureau's policy statements address a "crime of violence," a term that does not appear in the relevant statute, § 3621(e)(2)(B).


[43] Although the relevant statute limits eligibility to "prisoners convicted of a nonviolent offense," the Bureau's categorical framework focuses on sentencing, a concept that does not appear in the statutory language.


[44] Reviewing this case on appeal encompasses three tasks. We must first decide whether the Bureau has non-reviewable, exclusive competence to interpret the statute. If we decide that it does not, we must then determine whether the Bureau acted erroneously by equating "a nonviolent offense" with the antithesis of "a crime of violence." A related consideration is whether the Bureau erred by conflating the guilt-finding process, which is reflected in the statutory language "convicted," with the punishment process, which is reflected in the Bureau's program statements referring to Sentencing Guidelines. The ultimate question is one of statutory interpretation and, as to § 3621(e)(2)(B)'s relationship to the sentencing process, is one of first impression in the courts of appeals.


[45] III.


[46] The government correctly states that the Bureau of Prisons has broad discretion to adopt any reasonable definition of "nonviolent offense" under § 3621(e)(2)(B). However, the Bureau's endowment of broad discretion does not immunize its decisions from judicial review, especially concerning questions of statutory interpretation. Bureau of Prison program statements, including the ones adopted to implement § 3621(e)(2)(B), are not subject to the "rigors of the Administrative Procedure Act" and are, therefore, only "entitled to some deference." Reno v. Koray, 132 L. Ed. 2d 46, 115 S. Ct. 2021, 2027 (1995). When the Bureau's "interpretation is . . . in conflict with the plain language of the statute, deference is [not] due." National R.R. Passenger Corp. v. Boston and Maine Corp., 503 U.S. 407, 417, 118 L. Ed. 2d 52, 112 S. Ct. 1394 (1992); Medtronic, Inc. v. Lohr, 135 L. Ed. 2d 700, 116 S. Ct. 2240, 2263 (1996) ("Where the language of the statute is clear, resort to the agency's interpretation is improper."); Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984), reh'g denied, 468 U.S. 1227, 82 L. Ed. 2d 921, 105 S. Ct. 28, 105 S. Ct. 29 (1984) ("If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.").


[47] Although deference is extended to the Bureau's interpretation of "conviction of a nonviolent offense" under § 3621(e)(2)(B), the federal courts have ultimate responsibility to determine which offenses are violent and nonviolent under the Sentencing Guidelines. The courts also have responsibility to resolve issues of statutory construction. Southern California Edison Co. v. Federal Energy Regulatory Commission, 770 F.2d 779, 782 (9th Cir. 1985) ("The courts are the final authorities on issues of statutory construction."). Accordingly, we reject the government's argument that Congress' omission of a definition for "nonviolent offense" in § 3621(e)(2)(B) suggests an intention to entrust defining that term entirely to the Bureau of Prisons' discretion. Appellant's Brief at 8 n.4. We hold that the Bureau's interpretation of the statute is subject to judicial review.


[48] IV.


[49] Without question, the Bureau has broad discretion over the entire drug-treatment process within the federal corrections system, beginning with determining which inmates ever enter substance-abuse programs. Under § 3621, the Bureau "shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse." 18 U.S.C. § 3621(b). As an incentive for prisoners to obtain treatment while in custody, Congress authorized the Bureau to reduce prisoners' sentences upon the Bureau's determination that an inmate successfully completed a residential substance-abuse program. Congress made eligible for the sentence reduction those inmates who successfully completed the drug-abuse program and who were "convicted of a nonviolent offense." Congress defined several terms in § 3621(e)(2)(B), but did not define "nonviolent offense."


[50] The Bureau looks to § 924(c)(3) to define "nonviolent offense" and determine which inmates are eligible for sentence reductions. The Bureau incorporates into § 3621(e)(2)(B) the definition of "crimes of violence" as set forth in 18 U.S.C. § 924(c)(3); that is:


[51] an offense that is a felony and -


[52] (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or


[53] (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.


[54] Immediately apparent is the Bureau's departure from traditional methods of statutory construction in its interpretation of the phrase "convicted of a nonviolent offense." The Bureau has not applied the Literal Rule, American Plain Meaning Rule, Textualism, Intentionalism, Purposivism, or so-called Hybrid Dynamic Theories.*fn1 Instead, the Bureau adopts a unique statutory interpretation technique and concludes that inmates are "convicted of a nonviolent offense" if they did not commit a crime of violence as determined only after considering various Sentencing Guideline factors that may or may not be directly related to the crime for which the inmate was convicted. In employing such a technique, the Bureau simply assumes that a "crime of violence" as defined in § 924(c)(3) may never be a "nonviolent offense" in the distinguishable context of § 3621(e)(2)(B).


[55] The courts of appeals are divided on the meanings of the terms "nonviolent offense" and "crime of violence" in the context of certain Sentencing Guidelines.*fn2 However, this court has spoken unequivocally regarding firearms possession, the offense the Bureau contends is relevant to determining whether Downey was convicted of a nonviolent offense and, therefore, the offense purportedly relevant to this case. Interpreting several Sentencing Guidelines provisions, we have held that mere possession of a firearm by a felon is not a crime of violence. United States v. Cantu, 12 F.3d 1506, 1513 (9th Cir. 1993) (defendant convicted of being a felon in possession of a firearm has committed a nonviolent offense for purposes of eligibility for downward-departure provision in Sentencing Guidelines). In Cantu, we set forth the analysis worth repeating here:


[56] Section 5K2.13 requires that the district court find that Cantu's offense, possession of a firearm by a felon, is non-violent. We have defined "non-violent" as the converse of a "crime of violence" under U.S.S.G. § 4B1.2(1)(i), one of the career offender guidelines: that is, a non-violent offense is one that does not have "as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 4B1.2(1)(i); United States v. Borrayo, 898 F.2d 91, 94 (9th Cir. 1989).


[57] The application note to § 4B1.2(1)(i) states, "The term 'crime of violence' does not include the offense of unlawful possession of a firearm by a felon." U.S.S.G. § 4B1.2, Note 2 (November 1, 1991). That provision bolstered our Conclusion in United States v. Sahakian, 965 F.2d 740, 741-43 (9th Cir. 1992), that being a felon in possession is not a crime of violence for the purpose of applying the career offender guidelines. We have since extended Sahakian to sentences imposed under the Armed Career Criminal Act, 18 U.S.C. § 924(e),


[58] , and to the application of 18 U.S.C. § 924(c), which criminalizes the use of a firearm during a crime of violence, United States v. Canon, 993 F.2d 1439, 1441-42 (9th Cir. 1993). Our reasoning was the same in all of those cases: that the status of being a felon in possession "does not have as an element the actual, attempted or threatened use of violence[,] nor does the actual conduct it charges involve a serious potential risk of physical injury to another." Sahakian, 965 F.2d at 742.


[59] That reasoning is equally persuasive here. We therefore hold that possession of a firearm by a felon is not a crime of violence for the purpose of a departure under § 5K2.13.


[60] 12 F.3d at 1513-14.


[61] Under Cantu, defendants convicted of being a felon in possession of a firearm may not be denied sentence-reduction eligibility under a Sentencing Guideline provision on grounds that their offense was not nonviolent. Parity of reasoning dictates that inmates not convicted of the firearm-possession offense, even if affected by sentence-enhancement factors for similar conduct, also cannot be denied sentence-reduction eligibility under a congressionally authorized program on grounds that their offense was not nonviolent.*fn3 Thus, even if firearms possession was the relevant offense in this case, we would not necessarily find that Downey was convicted of a nonviolent offense for purposes of § 3621(e)(2)(B).


[62] Further detracting from the Bureau's approach and the government's argument is the concession made by the government in a case strikingly similar to the one at bar. In United States v. Arrellano-Rios, 799 F.2d 520, 523 (9th Cir. 1986), the government conceded that Downey's predicate offense - possession of controlled substances with intent to sell, 21 U.S.C. § 841(a)(1) - is a nonviolent offense. The government conceded that narcotics offenses under § 841(a)(1) are not "crimes of violence" within the meaning of 18 U.S.C. § 924(c), the very statute from which the Bureau derives its definition of "nonviolent offense" for purposes of the sentence-reduction program in § 3621(e)(2)(B). See BOP P.S. 5162.02, Definitions of "Crimes of Violence" (July 24, 1995), ER 89.


[63] The government's concession in Arrellano-Rios and the reasoning in Cantu make clear that a violation of § 841(a)(1), the predicate offense in this case, is a nonviolent offense. Courts have similarly stated that drug-trafficking convictions, and other arguably serious offenses, cannot necessarily be categorically deemed "crimes of violence." See, e.g., United States v. Canon, 993 F.2d 1439, 1441 (9th Cir. 1993) (possession of firearm by felon is not a "crime of violence" under § 924(c)); United States v. Cruz, 805 F.2d 1464, 1468-75 (11th Cir. 1986), cert. denied, 481 U.S. 1006, 95 L. Ed. 2d 204, 107 S. Ct. 1631 (1987)(whether Congress intended statutory definition of "crime of violence" to include drug trafficking is ambiguous and such ambiguity precludes convicting defendants convicted of underlying narcotics offenses for use of firearms during commission of crime of violence); United States v. Diaz, 778 F.2d 86, 88 (2nd Cir. 1985)(narcotics offenses are not crimes of violence within meaning of statute describing offense of carrying or using firearm in commission of crime of violence); United States v. Wells, 623 F. Supp. 645 (S.D. Iowa)(offense of cocaine distribution is not a "crime of violence" within firearm-enhancement statute), aff'd, 773 F.2d 230 (8th Cir. 1985); United States v. Bushey, 617 F. Supp. 292 (D.C. Vt. 1985)(possession with intent to distribute narcotics, by itself or in conjunction with use or carrying of firearm, is not "crime of violence" for purposes of statute prohibiting use of firearm during or in relation to crime of violence); United States v. Jernigan, 612 F. Supp. 382 (E.D.N.C. 1985)(possession with intent to distribute cocaine was not a crime of violence within meaning of statute, § 924(c), imposing penalty for using firearm during crime of violence).


[64] The relevant statute speaks clearly and unambiguously. The operative word of § 3621(e)(2)(B) is "convicted." Downey was convicted of a drug-trafficking offense, which is not a crime of violence. Section 3621(e)(2)(B) addresses the act of convicting, not sentencing or sentence-enhancement factors. The Bureau erred by conflating the guilt-determination (conviction) and sentencing processes. The result is a Bureau interpretation that runs counter to the Sentencing Commission's formulation of a "non-violent offense" and judicial endorsement of that formulation.


[65] V.


[66] The Sentencing Commission's delineation of "crime of violence" articulated in § 4B1.2 of the Sentencing Guidelines must also figure in our analysis. Both parties agree that the Commission's Guidelines regarding § 4B1.2 are relevant to this case. Appellant's Brief at 16; Appellee's Brief at 33-36. The Sentencing Guidelines Manual defines "crime of violence" for the purpose of identifying repeat violent offenders as:


[67] any offense under federal or state law punishable by imprisonment for a term exceeding one year that -


[68] (i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or,


[69] (ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.


[70] U.S.S.G. § 4B1.2(1)(1995).


[71] The Sentencing Commission's Application Notes interpreting this section clearly state:


[72] The term "crime of violence" does not include the offense of unlawful possession of a firearm by a felon.


[73] Id. at Application Note 2.


[74] Courts of appeals have uniformly upheld the Commission's broad authority to exclude the unlawful possession of a firearm by a felon from the definition of "crime of violence." See, e.g., United States v. Rutherford 54 F.3d 370, 374 n.11 (7th Cir.), cert. denied, 133 L. Ed. 2d 224, 116 S. Ct. 323 (1995); United States v. Parson, 955 F.2d 858, 867 (3rd Cir. 1992); see also Stinson v. United States, 508 U.S. 36, 47, 123 L. Ed. 2d 598, 113 S. Ct. 1913 (1993)(upholding Commission's exclusion of possession of firearm by a convicted felon from definition of "crime of violence"). Accordingly, the Sentencing Guidelines not only fail to support the Bureau's statutory interpretation in this case, but the Guidelines experience cuts directly against its contentions. The Sentencing Guidelines plainly and unequivocally state that the term "crime of violence" does not include the crime of possession of a firearm by a felon, and case law supports this interpretation.


[75] VI.


[76] The Bureau's interpretation of § 3621(e)(2)(B) also runs counter to the teachings of Taylor v. United States, 495 U.S. 575, 109 L. Ed. 2d 607, 110 S. Ct. 2143 (1990). There the Court "required the trial court to look only to the fact of conviction and the statutory definition of the prior offense" in determining whether petitioner's prior burglary offense constituted a previous "conviction of a violent felony" for purposes of a sentencing-enhancement statute. Id. at 602. The Bureau in this case relied on sentence-enhancement devices and related staff considerations, factors external to the constituent elements of the crime of conviction, to define "a nonviolent offense" for the purposes of 18 U.S.C. § 3621(e)(2)(B). Reliance on such external factors flies in the face of the Taylor analysis.


[77] The statute under consideration in Taylor authorized district courts to increase sentences for persons convicted of possession of a firearm by a felon if the felon has "three previous convictions


[78] for a violent felony." 18 U.S.C. §§ 922(g)(1), 924(e). To determine whether the prior burglary offense was "violent," the Court had to address the more general issue of whether the sentencing court must look only to the statutory definitions of the prior offenses or whether the court may consider other evidence concerning the defendant's prior crimes. 495 U.S. at 600. The Court noted:


[79] The Courts of Appeals uniformly have held that § 924(e) mandates a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.


[80] Id. (citations omitted).


[81] In explaining that considerable congressional debate addressed which categories of offenses might be deemed violent or non-violent the Court observed:


[82] No one suggested that a particular crime might sometimes count towards enhancement and sometimes not, depending on the facts of the case. If Congress had meant to adopt an approach that would require the sentencing court to engage in an elaborate factfinding process regarding the defendant's prior offenses, surely this would have been mentioned somewhere in the legislative history.


[83] We think the only plausible interpretation of § 924(e)(2)(B)(ii) is that, like the rest of the enhancement statute, it generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense.


[84] Id. at 601-02.


[85] We perceive no reason why we should not apply the Court's reasoning in Taylor to the case at bar. To interpret properly the authorizing statutory phrase "convicted of a nonviolent offense," Taylor would instruct that Congress intended that the Bureau and reviewing courts should look only to the fact of conviction and not to external facts influencing sentencing. As the Court in Taylor concluded, if Congress meant to adopt an approach that would require the Bureau or the federal courts to engage in elaborate fact-finding processes regarding a prisoner's crime of conviction, "surely this would have been mentioned somewhere in the legislative history." 495 U.S. at 601. It was not.


[86] For the above reasons, therefore, we hold that Downey was convicted of a nonviolent offense and was, therefore, eligible for a sentence reduction.


[87] Our inquiry does not stop here. Given the Bureau's error in interpreting the statute, we must now decide whether the district court had the authority to grant Downey's Writ of Habeas Corpus or was required to remand to the Bureau for reconsideration in light of judicial interpretation of the statute.


[88] VII.


[89] Under the Sentencing Reform Act, persons who have been sentenced to imprisonment "shall be committed to the custody of the Bureau of Prisons until the expiration of the term imposed, . . . ." 18 U.S.C. § 3621(a)(Postsentence Administration). Section 3621(e)(2)(B) of Title 18 ("Incentive for prisoners' successful completion of treatment program") reflects unequivocal congressional intent to leave to the Bureau final decisions regarding whether to grant eligible inmates a sentence reduction following successful completion of a drug-treatment program. The statute provides,


[90] (B) Period of custody. - The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.


[91] 18 U.S.C. § 3621(e)(2)(B)(emphasis added). Relevant legislative history also supports only this Conclusion. See, e.g., 139 Cong. Rec. H8724 (reduction within discretion of the Bureau); H8728 (the sentence reduction "is not mandatory time off, it is an option, up to the prison authorities").


[92] The broad discretion afforded the Bureau in administering prisoners' sentences is recognized throughout ruling case law. Regarding substance-abuse treatment programs, the Bureau's discretion begins with deciding whether an inmate ever enters such a program. Section 3621(b) provides that the Bureau "shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse." 18 U.S.C. § 3621(b)(1988)(emphasis added). "It is solely within the authority of the Federal Bureau of Prisons . . . to select those prisoners who will be best served by participation in [drug-rehabilitation] programs." United States v. Jackson, 70 F.3d 874, 877 (6th Cir. 1995).


[93] In Jackson, the court held the district court exceeded its authority by ordering defendant's participation in a drug-treatment program while incarcerated. Id. at 878. See also United States v. Williams, 65 F.3d 301, 307 (2nd Cir. 1995)(sentencing court has no authority to order that defendant be confined in a particular facility or placed in a particular treatment program; those decisions are within Bureau's sole discretion); United States v. Sotelo, 94 F.3d 1037, 1041 (7th Cir. 1996)(holding district court has no authority to order a restriction upon persons with whom convicted defendant can communicate, although "the court certainly had the option to recommend that the [Bureau] impose such a restriction").


[94] Like the drug-treatment placement decisions at issue in Jackson, decisions regarding whether to grant or deny eligible inmates a sentence reduction under § 3621(e) remain within the Bureau's discretion. The district courts may recommend that particular prisoners receive drug rehabilitation while incarcerated; however, they may not order such treatment. Jackson, 70 F.3d at 878. Similarly, a reasonable inference exists that district courts may recommend to the Bureau that a particular inmate's sentence be reduced one year based upon successful completion of a drug-treatment program. The courts may not order the Bureau to grant such reductions.


[95] Accordingly, under ordinary circumstances the proper relief would be to remand to the Bureau for reconsideration in light of our Conclusion that Downey is eligible for a sentence reduction. However, the record indicates that the only obstacle to eligibility for, and entitlement to, a sentence reduction in Downey's case was a question of law. We have concluded that the Bureau's statutory interpretation of § 3621(e)(2)(B) is in error as a matter of law. Given that remanding this case to the Bureau would entail only a ministerial act by the Bureau, we affirm the district court's grant of Petitioner's Writ of Habeas Corpus and sentence-reduction order.


[96] AFFIRMED.


[97] Disposition


[98] AFFIRMED.



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Judges Footnotes

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[99] *fn* Ruggero J. Aldisert, Senior Judge, United States Court of Appeals for the Third Circuit, sitting by designation.



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Opinion Footnotes

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[100] *fn1 See Ruggero J. Aldisert, The Judicial Process, Text, Materials and Cases (2d Edition) 193-312 (West 1996).


[101] *fn2 See, e.g., United States v. Mayotte, 76 F.3d 887, 889 (8th Cir. 1996)(collecting cases); United States v. Poff, 926 F.2d 588 (7th Cir.), cert. denied, 502 U.S. 827, 116 L. Ed. 2d 67, 112 S. Ct. 96 (1991); compare, United States v. Weddle, 30 F.3d 532, 537-38 (collecting cases); United States v. Chatman, 300 U.S. App. D.C. 97, 986 F.2d 1446, 1449 (D.C. Cir. 1993).


[102] *fn3 We are satisfied with our literal interpretations of the terms in 18 U.S.C. § 3621(e)(2)(B), and our literal application of the statute on which the Bureau relies, 18 U.S.C. § 924(c), to define key terms and deny inmates sentence-reduction eligibility. We reject the government's argument that a more expansive interpretation of the law - one beyond the plain meaning of the language - is permissible here because § 3621(e)(2)(B) is merely a "remedial" statute. The Supreme Court's recent decision in Bailey v. United States, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995), supports our literal interpretation of these laws. There the Court indicated that federal courts have gone too far in imposing mandatory minimum sentences for defendants who "use" a firearm in drug-trafficking crimes. To be convicted of such "use," defendants must have actively employed the firearms to effectuate the drug offense. Given that the facts in this case fail to indicate Downey could have been convicted for "use" of a firearm, we are reluctant to move in a direction contrary to that of the court in Bailey by allowing the Bureau to go beyond the scope of the statutory language, "convicted," at issue in this case.



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