Fristoe v. Thompson, 144 F.3d 627 (10th Cir. 04/29/1998)

[1] U.S. Court of Appeals, Tenth Circuit


[2] No. 97-6246


[4] April 29, 1998


[5] JAMES R. FRISTOE, PETITIONER-APPELLANT,
v.
R.G. THOMPSON, WARDEN, RESPONDENT-APPELLEE.


[6] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 96-CV-273)


[7] Submitted on the briefs: James R. Fristoe, pro se. Patrick M. Ryan, United States Attorney, Ronny D. Pyle, Assistant United States Attorney, Western District of Oklahoma, Oklahoma City, Oklahoma.


[8] Before: Anderson, McKAY, and Lucero, Circuit Judges.


[9] The opinion of the court was delivered by: McKAY, Circuit Judge


[10] PUBLISH


[11] Appellant James R. Fristoe appeals from the district court's order denying his petition for a writ of pursuant to 28 U.S.C. § 2241. *fn1 The issue to be resolved in this appeal is whether a prisoner convicted of a nonviolent drug offense, whose sentence was enhanced for possession of a firearm, is categorically disqualified from receiving a sentence reduction made available only to prisoners convicted of "nonviolent offenses." See 18 U.S.C. § 3621(e)(2)(B). The district court concluded that the Bureau of Prisons (BOP) acted permissibly in adopting an interpretation of the statute which examines sentencing factors as well as the crime of conviction in determining whether an inmate is eligible for the sentence reduction. We reverse.


[12] I.


[13] Appellant is presently incarcerated, serving an eighty-four month sentence imposed on February 7, 1994, after he pled guilty to conspiracy to distribute cocaine base and cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. At sentencing, he received a two-level sentence enhancement for possession of a firearm during the course of a drug trafficking conspiracy. See U.S.S.G. § 2D1.1(b)(1).


[14] In his petition, appellant contends that the BOP has wrongfully denied him eligibility for a sentence reduction for his successful completion of a drug treatment program under 18 U.S.C. § 3621(e)(2)(B) of the Violent Crime Control and Law Enforcement Act of 1994. The Act provides in pertinent part:


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


[16] (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.


[17] 18 U.S.C. § 3621(e)(2)(B).


[18] The statute does not define a "nonviolent offense." The BOP has established a regulation, however, which implements that qualification by excluding persons whose current offense is a "crime of violence," as that term is defined in the Criminal Code at 18 U.S.C. § 924(c)(3). *fn2 The version of this regulation in effect at the time of appellant's application stated as follows:


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


[20] 28 C.F.R. § 550.58 (1995).


[21] The BOP has further determined the scope of the term "crime of violence" through issuance of its Program Statement 5162.02. Section 9 of the Program Statement provides that convictions, like appellant's, obtained under 21 U.S.C. § 841 or § 846, should be considered convictions for a "crime of violence" if the sentencing court increased the base level of the sentence for possession of a dangerous weapon during the commission of the offense. Under the rationale of the Program Statement and the regulation, then, appellant's crime was not a "nonviolent offense," because of the sentencing enhancement, and he was therefore ineligible for the sentence reduction.


[22] II.


[23] Appellant's entitlement to relief depends on his showing that "[h]e is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Appellant presents several constitutional arguments to satisfy this predicate. We consider each of these claims in turn.


[24] Appellant first raises a claim under the Due Process Clause. To make out a due process claim, appellant must assert the infringement of a protected liberty interest. See Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460 (1989). A protected liberty interest may arise from either the Due Process Clause itself, or from a state or federal law. See id.; cf. Miller v. Federal Bureau of Prisons, 989 F.2d 420, 423 n.4 (10th Cir. 1993) (noting rule in circuits holding former federal parole statute created liberty interest).


[25] The Constitution does not itself afford appellant a liberty interest in a reduced sentence. A convicted person has no constitutional or inherent right to be conditionally released before the expiration of a valid sentence. See Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7 (1979).


[26] Neither does § 3621(e)(2)(B) create a liberty interest. It states that the inmate's sentence "may be reduced by the Bureau of Prisons." (emphasis added). A statute which allows a decisionmaker to deny the requested relief within its unfettered discretion does not create a constitutionally-recognized liberty interest. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983). Appellant's due process claim fails, therefore, because he has not demonstrated that he has a liberty interest in the sentence reduction which he seeks.


[27] Appellant next claims that the failure to grant him a sentence reduction violates the Ex Post Facto Clause of the Constitution. He argues that since he entered the rehabilitation program before the BOP promulgated its definition of a "crime of violence," that definition cannot now be applied to him. There is no ex post facto violation here, because the challenged regulation did not affect the legal consequences of appellant's crime or increase his punishment. See Stiver v. Meko, 130 F.3d 574, 578 (3d Cir. 1997) (rejecting similar argument).


[28] Finally, appellant argues that the BOP's refusal to consider him for sentence reduction violates the Equal Protection Clause. He notes that the BOP has acquiesced in a Ninth Circuit case invalidating its interpretation of § 3621(d)(2)(B) under similar circumstances. See Downey v. Crabtree, 100 F.3d 662, 671 (9th Cir. 1996). Contrary to appellant's contentions, however, the BOP is not compelled by equal protection principles to acquiesce nationwide in the Ninth Circuit's decision. See Castillo-Felix v. INS, 601 F.2d 459, 467 (9th Cir. 1979) (INS was not compelled by equal protection principles to obey holding of Second Circuit Court of Appeals outside the Second Circuit). "It is elementary that decisions of one Court of Appeals cannot bind another." Id. Under our legal system, authoritative decisions of that nature are left to the United States Supreme Court.


[29] III.


[30] Although appellant's constitutional arguments are unavailing, our work is not finished. His pro se complaint also raised the issue of whether the BOP has adopted a permissible construction of the statute.


[31] In his answer brief, appellee asserts that review of BOP decisions under § 3621(e)(2)(B) is not available under the Administrative Procedure Act (APA). See 18 U.S.C. § 3625. While § 3625 may preclude us from reviewing the BOP's substantive decision in appellant's case, it does not prevent us from interpreting the statute to determine whether the BOP exceeded its statutory authority. See, e.g., Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir. 1998); Roussos v. Menifee, 122 F.3d 159, 163 (3d Cir. 1997).


[32] We recently discussed the analysis we follow when examining the agency's construction of a statutory term. See Southern Ute Indian Tribe v. Amoco Prod. Co., 119 F.3d 816, 830-36 (10th Cir. 1997). We begin by asking whether Congress has "directly spoken to the precise question at issue." Id. at 830 (further quotation omitted). Congress has not defined a "nonviolent offense" for purposes of this statute.


[33] We next ask whether Congress has delegated to the agency the responsibility to address the question. See id. at 831. It is undisputed that the BOP has been delegated the authority to interpret § 3621(e)(2)(B). However, we must also ask whether this delegation of authority carries with it the discretion to interpret the statute with the force of law utilizing the particular format at issue, i.e., a program statement. See Southern Ute Indian Tribe, 119 F.3d at 832. An agency's interpretation of a statute by formal regulation or adjudication is entitled to deference, so long as the agency's interpretation is based upon a permissible construction of the statute. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). Where the agency's interpretation of the statute is made informally, however, such as by a "program statement," the interpretation is not entitled to Chevron deference, but will instead be considered only to the extent that it is well-reasoned and has "power to persuade." See Southern Ute Indian Tribe, 119 F.3d at 834.


[34] We begin by noting that courts typically do not consider the predicate drug offense here, conspiracy to distribute cocaine, a "crime of violence." See, e.g., United States v. Diaz, 778 F.2d 86, 88 (2d Cir. 1985) (holding, under former version of 18 U.S.C. § 924(c), that drug conspiracy was not a "crime of violence"). The BOP's classification of appellant's offense as a "crime of violence," therefore, must rest entirely upon consideration of sentencing factors which are not implicated categorically by the nature of his underlying offense.


[35] Reliance on sentencing enhancements, however, conflicts with the plain language of the statute. Section 3621(e)(2)(B) refers to prisoners "convicted of a nonviolent offense." (emphasis added). The statute does not permit resort to sentencing factors or sentencing enhancements attached to the nonviolent offense.In United States v. Wagner, 994 F.2d 1467, 1474 (10th Cir. 1993), we considered whether the government could use relevant conduct to classify a violation of 21 U.S.C. § 841(d) as a "controlled substance offense," for purposes of a career offender provision, U.S.S.G. § 4B1.1. We noted that an "offense," for purposes of the sentencing guidelines, usually includes all relevant conduct. See Wagner, 994 F.2d at 1474. However, since the specific definition of "controlled substance offense" employed in U.S.S.G. § 4B1.2(2) referred directly to the charged offense, rather than to all relevant conduct, resort to the relevant conduct was not permitted. See id.


[36] The same is true here. The eligibility criteria in 18 U.S.C. § 3621(e)(2)(B) refer directly to the offense for which the prisoner was convicted. The BOP's program statement definition of a "nonviolent offense" is not well-reasoned, and fails to persuade us that it is entitled to deference. The BOP's interpretation violates the plain language of the statute and cannot be upheld.


[37] We are joined in this view by the majority of circuits which have considered this question. See Martin, 133 F.3d 1076, 1079-81; Bush v. Pitzer, 133 F.3d 455, 456-57 (7th Cir. 1997); Roussos, 122 F.3d 159, 161-64; Downey, 100 F.3d at 666-71; see also Sisneros v. Booker, 981 F. Supp. 1374, 1376-77 (D. Colo. 1997). Only the Fifth Circuit has upheld the BOP's program statement against a similar challenge. See Venegas v. Henman, 126 F.3d 760, 761-62 (5th Cir. 1997), petition for cert. filed, No. 97-7727 (U.S. Jan. 29, 1998).


[38] In Venegas, noting the discretion given to the BOP in particular cases, the Fifth Circuit took the position that "the use of the phrase `a nonviolent offense' merely excludes all inherently violent offenses from eligibility for consideration, while leaving to the Bureau's discretion the determination of which other offenses will or will not be eligible for consideration." 126 F.3d at 763 (emphasis added). In our view, this rationale avoids the central question: whether the BOP may treat a sentence enhancement as though it were the "conviction" of such "other offense." Unless this is permissible, the Fifth Circuit's approach would permit the BOP to treat nonviolent offenders as though they were convicted of a violent offense, undermining the express language of the statute. We therefore find the Fifth Circuit's approach unpersuasive. *fn3


[39] IV.


[40] Having determined that the BOP exceeded its authority in categorically excluding from consideration inmates convicted of nonviolent offenses who received a sentencing enhancement for possession of a firearm, we move on to the appropriate relief to be granted in this case. Appellee correctly points out that we do not have authority to grant appellant the sentence reduction, because that decision rests with the BOP. Therefore, the judgment of the United States District Court for the Western District of Oklahoma is REVERSED and REMANDED to the district court for further remand to the Bureau of Prisons for further proceedings consistent with this opinion. The mandate shall issue forthwith.



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Opinion Footnotes

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[41] *fn1 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); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.


[42] *fn2 A "crime of violence" pursuant to 18 U.S.C. § 924(c)(3), includes: 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.


[43] *fn3 Even if the BOP were allowed to exclude inmates convicted of nonviolent crimes based on the nature of the sentencing enhancement, the enhancement for "possession of a firearm" at issue here might not justify a categorical exclusion based on a "crime of violence." See, e.g., Downey, 100 F.3d at 668-69. The Downey court found support for its Conclusion in § 4B1.2 of the United States Sentencing Guidelines, which contains a definition of the term "crime of violence" substantially similar to that contained in § 924(c). The Sentencing Commission's Application Notes to § 4B1.2 specifically provide: "The term `crime of violence' does not include the offense of unlawful possession of a firearm by a felon.'" Id. at Application Note 2; see also Stinson v. United States, 508 U.S. 36, 47 (1993) (upholding Sentencing Commission's exclusion of possession of firearm by convicted felon from definition of "crime of violence"). In light of our holding that any resort to sentencing factors in the absence of conviction of an offense which constitutes a crime of violence is impermissible, we need not reach this issue.

17 F. SUPP.2D 443

ROBERT EUGENE MCPEEK, Petitioner v. MARK HENRY, WARDEN, et al., Respondent

CIVIL ACTION NO. AMD 98-547

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

17 F. Supp. 2d 443; 1998 U.S. Dist.

August 12, 1998, Decided
August 13, 1998, Filed


DISPOSITION: [**1] Instant 28 U.S.C. § 2241 petition GRANTED.




COUNSEL: Robert Eugene McPeek, Pro Se, Cumberland, MD.

Lynne A. Battaglia, U.S. Attorney, Baltimore, MD.

Larry D. Adams, Assistant U.S. Attorney.

JUDGES: ANDRE M. DAVIS, UNITED STATES DISTRICT JUDGE.

OPINIONBY: ANDRE M. DAVIS

OPINION:
[*443] MEMORANDUM
On February 23, 1998, petitioner, a federal prisoner currently incarcerated at the Federal Correctional Institution located in Cumberland, Maryland, filed the instant federal habeas corpus application pursuant to the provisions of 28 U.S.C. § 2241. He is serving a 46-month federal term for convictions under 18 U.S.C. § 922(g)(1) (possession of a firearm by a convicted felon), 21 U.S.C. § 846 (conspiracy to possess with intent to distribute and to distribute 1,000 kilograms or more of marijuana), and 18 U.S.C. § 1956(a)(1)(A)(i) (money laundering). Petitioner contends that he is eligible for a sentence reduction of up to one year for having completed a residential drug abuse program. n1 He complains that the Bureau of Prisons ("BOP") is illegally denying [**2] him eligibility for this sentence credit based on its erroneous determination that his conviction under 18 [*444] U.S.C. § 922(g)(1) is not a "nonviolent offense," as required for eligibility under 18 U.S.C. § 3621(e)(2)(B). n2

n1 Respondent concedes that petitioner completed the 500-hour Residential Drug Abuse Treatment Program offered by the Bureau of Prisons.
n2 18 U.S.C. § 922(g)(1) provides:

(g) It shall be unlawful for any person -

(1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.




I. STANDARD OF REVIEW
Significant deference is due regulations promulgated in accordance with the notice and comment requirements of the Administrative [**3] Procedure Act ("APA"). See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984)(holding that "legislative regulations are given controlling weight unless they are arbitrary, capricious or manifestly contrary to the statute"). However, Congress explicitly excluded 18 U.S.C. § § 3621-3626 from the requirements of § 554 (adjudications), § 555 (ancillary matters), and § § 701-706 (right of judicial review) of the APA. 18 U.S.C. § 3625. Accordingly, the APA does not define the scope of review of BOP action. Where regulatory action is not subject to the APA, it is entitled only to "some deference." Reno v. Koray, 515 U.S. 50, 61, 132 L. Ed. 2d 46, 115 S. Ct. 2021 (1995)(BOP's program statements are not subject to APA entitling them, therefore, only to some deference).
Where a statute does not define a term, the BOP has broad discretion to adopt any reasonable definition. However, that discretion does not immunize the BOP decision from judicial review. Davis v. Crabtree, 109 F.3d 566, 568 (9th Cir. 1997), citing [**4] Downey v. Crabtree, 100 F.3d 662, 666 (9th Cir. 1996). A court may review allegations that an agency: (1) has violated the constitution, Webster v. Doe, 486 U.S. 592, 603-604, 100 L. Ed. 2d 632, 108 S. Ct. 2047 (1988); or (2) has interpreted a statute contrary to well-settled case law, Neal v. United States, 516 U.S. 284, 294, 133 L. Ed. 2d 709, 116 S. Ct. 763 (1996)(holding that stare decisis required the court to adhere to a prior statutory interpretation despite the agency's subsequent interpretation of the statute contrary to the settled law).

II. ANALYSIS
This case presents the issue of whether the BOP's interpretation of the term "nonviolent offense," as provided in 18 U.S.C. § 3621(e)(2)(B), is contrary to settled law. n3 Section 3621(e)(2)(B) of Title 18 was passed as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, and grants the BOP authority to reduce sentences of prisoners who have completed a BOP substance abuse treatment program. The statute provides, in relevant part:
(A) Generally. --Any prisoner who, in the judgment of the Director of the [**5] [BOP], has successfully completed a program of residential substance abuse treatment provided under paragraph (1) of this subsection, shall remain in the custody of the [BOP] under such conditions as the [BOP] deems appropriate . . . .
(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 [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)(emphasis added). The statute does not define "nonviolent offense."

n3 Petitioner does not present a valid constitutional challenge because no cognizable liberty interest is at issue. "There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979).

Pursuant [**6] to 18 U.S.C. § 3621, the BOP promulgated a regulation, among others, regarding eligibility for the sentence reduction program. 28 C.F.R. § 550.58 (1997)("the regulation"). Although the BOP promulgated an amended regulation on October 15, [*445] 1997, which was effective October 9, 1997, see 62 Fed. Reg. 53690-91 (October 15, 1997)(to be codified at 28 C.F.R. § 550.58), petitioner and respondent argued their positions in this case relying on the pre-October 1997 regulation. n4 The regulation stated, in relevant 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. The following categories of inmates are not eligible: . . . inmates whose current offense is determined to be a crime of violence as defined in 18 U.S.C. § 924(c)(3) . . . .


Program Statement 5162.02 is the BOP's effort to further elucidate the import of the regulation. It lists a violation of 18 U.S.C. § 922(g) as a crime of violence "in all cases." P.S. 5162.02, § 7. [**7] P.S. 5330.10 in effect at the time of the denial of petitioner's eligibility further provides that inmates convicted of offenses considered "crimes of violence" are not eligible for early release consideration. n5 P.S. 5330.10, Ch. 6.1.

n4 It is not entirely clear from the record whether the old or the new regulation should have been applied by the BOP to petitioner's application for a sentence reduction. The record does not disclose the date of the BOP's initial denial of eligibility. Interestingly, a BOP form provided by petitioner reflects that he was informed on November 12, 1996, that he was "eligible for residential drug treatment and consideration for early release contingent upon successful completion of . . . the drug program." Petition at Exh. 4. Sometime after November 12, 1996, petitioner's notice of eligibility was apparently rescinded or disregarded, and he was informed that he was not eligible for a sentence reduction. The record does not reveal when this occurred. The most that can be inferred is that it occurred sometime between November 12, 1996, and November 13, 1997, the date the warden denied petitioner's first appeal in the administrative review process. Petition at Exh. 1. Resolution of this issue, however, is not material because the result would be the same under either regulation.
The interim regulation provides, in relevant part:

An inmate who was sentenced to a term of imprisonment . . . for a nonviolent offense . . . and successfully completes a residential drug abuse treatment program . . . may be eligible, in accordance with paragraph (a) of this section, for early release by a period not to exceed 12 months.

(a) Additional early release criteria.
(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: . . .
(B) That involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives . . .

62 Fed. Reg. 53690 (October 15, 1997)(to be codified at 28 C.F.R. § 550.58).
Although the BOP has broad discretion to define terms not defined by statute, its definition must not violate settled principles of law or ignore the plain meaning of the statute. As discussed in text, the Fourth Circuit has concluded that, for purposes of the United States Sentencing Guidelines ("Sentencing Guidelines"), "the offense of felon in possession of a firearm, in the absence of any aggravating circumstances charged in the indictment, does not constitute a per se 'crime of violence.'" United States v. Johnson, 953 F.2d 110, 115 (4th Cir. 1991). Thus, the BOP's designation of the offense felon in possession of a firearm as not being "nonviolent" (as required for eligibility under § 3621(e)(2)(B)), is contrary to the reasoning of the Fourth Circuit.
[**8]


n5 Program Statement 5330.10, Ch. 6.1 was amended on October 9, 1997. The amended version mirrors the language of the interim regulation discussed at note 4 supra. As was true of the interim regulation, it is unclear from the record whether the old or the new program statement should have been applied by the BOP to petitioner's application for a sentence reduction. For the reasons stated at note 4 supra, however, resolution of this issue is not material.
Nevertheless, I note that the government's indication that "some of the language has been modified from its previous version," Resp. Mot. to Dismiss at 8, n. 4, dramatically understates the import of the amendment; the revised language sets a new standard of eligibility for firearms and weapons offenses.

The parties' arguments focus on whether 18 U.S.C. § 922(g)(1) constitutes a "crime of violence as defined in 18 U.S.C. § 924(c)(3)." Section 924(c)(3) defines a "crime of violence" as follows:


(3) For purposes of this subsection the term "crime of violence" means an offense that [**9] 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 [*446] be used in the course of committing the offense.
In a case on all fours with the instant case, the Ninth Circuit held that a conviction under § 922(g)(1) is not a crime of violence, and therefore, the BOP must consider possession of a firearm by a convicted felon a nonviolent offense under § 3621(e)(2)(B). Davis, 109 F.3d at 569. Relying on its prior decision in Downey, wherein the court held that a sentence enhancement for possession of a firearm during a nonviolent offense did not make the underlying offense a crime of violence for purposes of the sentence reduction statute, the Davis court held that "parity of reasoning" dictated that a conviction for possession of a firearm by a convicted felon is itself a "nonviolent offense" for purposes of § 3621(e)(2)(B). n6 The court went on to state that "Downey makes clear that if a crime has been held 'nonviolent' [**10] by the Ninth Circuit for the purposes of the Sentencing Guidelines, the BOP must consider it 'nonviolent' for the purposes of § 3621(e)(2)(B)." Davis, 109 F.3d at 569.

n6 Other courts have likewise held that where an inmate was convicted of a nonviolent offense, such as a drug conviction under 21 U.S.C. § 841 or 846, and received a sentence enhancement for possession of a firearm, the BOP exceeded its authority by categorically excluding such an inmate from eligibility for a sentence reduction under 18 U.S.C. § 3621(e). As the Eleventh Circuit noted in Byrd v. Hasty, 142 F.3d 1395, 1398 (11th Cir. 1998):

we conclude that the BOP exceeded its statutory authority when it categorically excluded from eligibility those inmates convicted of a nonviolent offense who received a sentencing enhancement for possession of a firearm. The BOP's interpretation of the 18 U.S.C. § 3621(e)(2)(B) is simply in conflict with the statute's plain meaning.

The Byrd court noted that a similar conclusion had been reached by a majority of courts, including the Fourth Circuit. 142 F.3d at 1397. See Fuller v. Moore, 133 F.3d 914 (4th Cir. 1997)(unpublished); Roussos v. Menifee, 122 F.3d 159 (3d Cir. 1997); Bush v. Pitzer, 133 F.3d 455 (7th Cir. 1997); Martin v. Gerlinski, 133 F.3d 1076 (8th Cir. 1998); Fristoe v. Thompson, 144 F.3d 627 (10th Cir. 1998).
I note that in an analogous circumstance, the Sentencing Commission amended the Sentencing Guidelines in 1992 to clarify that § 922(g) is not a crime of violence under the Sentencing Guidelines and cannot serve as a predicate crime for designation of "career offender" under U.S.S.G. § 4B1.1. See U.S.S.G. § 4B1.2, comment. (n.1). The Supreme Court has held this application note binding for sentencing under the Sentencing Guidelines. Stinson v. United States, 508 U.S. 36, 47, 123 L. Ed. 2d 598, 113 S. Ct. 1913 (1993).

[**11]
Similarly, in Miller v. United States, 964 F. Supp. 15, 20 (D.D.C. 1997)(Friedman, J.), vacated as moot, No. 97-5175 (D.C.Cir. May 6, 1998), n7 the court held that "the plain language of 18 U.S.C. § 924(c)(3) and the demands of statutory interpretive consistency require the conclusion that Section 922(g) is not a crime of violence for the purposes of 18 U.S.C. § 3621(e)(2)(B)." The court quoted the Supreme Court's holding that "'use' means more than mere possession." Id. at 19, quoting Bailey v. United States, 516 U.S. 137, 143, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995). Furthermore, the court reasoned that § 922(g) does not by its nature, involve a substantial risk that physical force may be used in the course of committing the offense. Id. The court relied on the reasoning of then-Chief Judge Breyer which provided "simple possession, even by a felon, takes place in a variety of ways (e.g., in a closet, in a store room, in a car, in a pocket) many, perhaps most, of which do not involve likely accompanying violence." Id., quoting United States v. Doe, 960 F.2d 221, 225 (1st Cir. 1992). [**12]

n7 The judgment of the district court was vacated by the D.C. Circuit as moot because Miller had been released from custody during the pendency of the appeal. The order of the court of appeals recited, however, that "the government indicated that it will remove the provisional notice of eligibility, which identified Miller as a violent offender, from its files. In addition, the government agreed to send copies of the Amended Notification of Prisoner Release to the same law enforcement officials who received the original notification." Miller v. United States, 1998 U.S. App. LEXIS 10667, No. 97-5175 (D.C.Cir. May 6, 1998).

The reasoning of the Ninth Circuit in Davis and Judge Friedman in Miller is sound and persuasive. The offense of possession of a firearm by a convicted felon does not, as a matter of statutory interpretation, constitute the "use" of the firearm as provided at 18 U.S.C. § 924(c)(3)(A). To treat mere possession of a firearm as if it equated to [**13] use of a firearm is contrary to the plain language of the relevant statutes and the clear pronouncement of the Supreme Court. [*447] See Bailey, 516 U.S. at 143. Furthermore, the argument that the offense "by its nature, involves a substantial risk that physical force . . . may be used in the course of committing the offense," as provided at 18 U.S.C. § 924(c)(3)(B), is likewise unavailing. "The offense" is simply possession of the firearm, which, in and of itself, does not create a risk of physical force against another; the gravamen of the offense, unlike some other firearms offenses, involves merely the knowing possession of a firearm. n8

n8 As the Fourth Circuit held in Thompson v. United States, 891 F.2d 507, 509 (4th Cir. 1989), cert. denied, 495 U.S. 922, 109 L. Ed. 2d 319, 110 S. Ct. 1957 (1990), the South Carolina offense of pointing a firearm at a person constitutes a crime of violence for purposes of "career offender" status. Thus, an element of an offense encompassing an affirmative act beyond mere possession of a firearm seems to be required to remove the firearm offense from the realm of nonviolent crimes.

[**14]
Although the Fourth Circuit has not spoken directly to the matter at issue, it has concluded that for purposes of the Sentencing Guidelines, "the offense, felon in possession of a firearm, in the absence of any aggravating circumstances charged in the indictment, does not constitute a per se 'crime of violence' . . . ." Johnson, 953 F.2d at 115. The court reasoned that "the danger inherent in the mere possession of a firearm is, in many cases, too highly attenuated to qualify the offense as a per se 'crime of violence.'" Id. "While a felon in possession of a firearm may pose a statistical danger to society," the offense in and of itself cannot be categorically considered a crime of violence. Id.
While I recognize that, strictly speaking, the holding of Johnson applies only in the context of the Sentencing Guidelines, I can discern no basis to decline to apply its reasoning here. But cf. Fonner v. Thompson, 955 F. Supp. 638, 640-641 (N.D.W.Va. 1997)(holding that BOP interpretation of § 922(g)(1) as a crime of violence is permissible construction of § 3621(e)(2)(B) and limiting the holding of Johnson to the interpretation of Sentencing [**15] Guidelines). This is especially true in light of the very similar definitions of "crime of violence" found at 18 U.S.C. § 924(c)(3) and U.S.S.G. § 4B1.2(a). I therefore conclude that the BOP's decision to interpret a priori a conviction for possession of a firearm by a convicted felon as other than a conviction for a nonviolent offense, where the Fourth Circuit has stated that it is not, is contrary to the law of this Circuit. n9

n9 I note that other courts have considered the issue presented in this case and upheld the BOP's designation of § 922(g)(1) as a "crime of violence." See, e.g., Paydon v. Hawk, 960 F. Supp. 867, 870-71 (D.N.J. 1997)(applying more deferential standard of review and holding because "the Third Circuit has not decided whether possession of a weapon by a felon is a crime of violence under 18 U.S.C. § 924(c)(3) . . . a determination by the BOP that a violation of § 922(g)(1) is a crime of violence under § 924(c) is not contrary to any 'well-established' law in this Circuit.")(internal quotations omitted); Davis v. Beeler, 966 F. Supp. 483, 490 (E.D.Ky. 1997)(holding that "in the absence of binding precedent in this Circuit holding that a § 922(g) offense is not a crime of violence, the BOP's action challenged herein cannot constitute an abuse of its discretion . . . ."). Nevertheless, none of these courts had circuit caselaw teaching that the possessory offense under § 922(g)(1) is ordinarily a nonviolent offense or indicating that the categorical characterization of the offense as "violent" is error. Accordingly, I am not persuaded by their reasoning.

[**16]

III. REMEDY
Whether or not the BOP grants petitioner a sentence reduction remains, however, completely within its discretion. The statute provides that the BOP "may" reduce a prisoner's sentence after completion of a drug abuse treatment program. 18 U.S.C. § 3621(e)(2)(B). Although, based upon my ruling, the BOP may not use petitioner's conviction to deny him eligibility for a sentence reduction, I recognize that the BOP may choose, for other reasons not litigated in this case, to deny petitioner's request for a sentence reduction.

IV. CONCLUSION
For the foregoing reasons, I conclude that the BOP's determination that petitioner is ineligible for consideration for a sentence reduction under 18 U.S.C. § 3621(e)(2)(B) on the basis that he was not convicted of a "nonviolent offense" as defined in 18 U.S.C. § 924(c)(3) is contrary to the plain language [*448] of the statute, defies parity of reasoning in the interpretation of closely-related statutes, is contrary to the settled law of the Fourth Circuit and is, as a result, an abuse of discretion. Accordingly, I shall grant the petition and order [**17] the BOP to take further action not inconsistent with this opinion. An order follows.

Filed: August 12, 1998
ANDRE M. DAVIS
UNITED STATES DISTRICT JUDGE
ORDER
In accordance with the foregoing Memorandum, it is this 12th day of August 1998, by the United States District Court for the District of Maryland, ORDERED
(1) That the instant 28 U.S.C. § 2241 petition is GRANTED;
(2) That the Respondent shall determine petitioner's eligibility for early release consistent with the reasoning of this opinion;
(3) That the Clerk of Court CLOSE this case; and
(4) That the Clerk of Court MAIL a copy of this Order, along with the foregoing Memorandum, to petitioner and counsel of record.
ANDRE M. DAVIS
UNITED STATES DISTRICT JUDGE