Case Information
*1 Before CARNES, BARKETT and MARCUS, Circuit Judges.
CARNES, Circuit Judge:
Section 3621(e)(2)(B) of Title 18 provides that the Bureau of Prisons ("BOP") may reduce by as much as one year the length of a prisoner's sentence for successful completion of a residential substance abuse treatment program. The statute limits the BOP's authority to do that to cases involving prisoners convicted of a "nonviolent offense." Through a regulation and program statement, the BOP has interpreted "nonviolent offense" as used in that statute to exclude the 18 U.S.C. § 922(g) crime of being a felon in possession of a firearm.
The issue in this appeal is whether the BOP's regulation and program statement classifying the § 922(g) crime as outside the scope of "nonviolent offense" as that term is used in § 3621(e)(2)(B) is a permissible exercise of administrative discretion, and if so, whether it is constitutionally permissible. For the reasons that follow, we answer both questions in the affirmative.
I. PROCEDURAL BACKGROUND
Harry K. Cook pleaded guilty to the charge of possession of a firearm by a felon, and he was sentenced to 46 months imprisonment to be followed by 3 years of supervised release. While serving his sentenсe at the Federal Prison Camp in Talladega, Alabama, Cook completed a 500-hour "Comprehensive Drug Abuse Treatment Program" and applied for a sentence reduction under 18 U.S.C. § 3621(e)(2)(B). The *2 BOP refused to consider reducing his sentence, because under its applicable regulation and program statement, Cook's § 922(g) conviction rendered him ineligible for such a reduction. [1]
Cook then filed a 28 U.S.C. § 2241 habeas corpus petition in district court.
[2]
He contended that the
BOP had impermissibly interpreted "nonviolent offense" to exclude the crime of possession of a firearm by
a felon. Cook also contended that the BOP's refusal to consider him for a sentence reduction based on his
conviction for the § 922(g) offense violated the Due Process and Equal Protection Clauses of the United
States Constitution. The district court denied his habeas petition, and Cook appealed.
[3]
We review
de novo
the district court's denial of Cook's habeas petition.
See Chateloin v. Singletary,
II. DISCUSSION
Section 3621(e)(2)(B) of Title 18 grants the BOP discretion to reduce by up to one year the sentence of a prisoner who successfully completes a substancе abuse treatment program, but makes that reduction available only to "a prisoner convicted of a nonviolent offense." Because the statute does not define "nonviolent offense," it fell to the BOP to define that term in keeping with the statutory purposes.
The BOP's first step was Regulation 550.58, see 28 C.F.R. § 550.58 (1995), the applicable version of which was adopted in 1995. [4] That regulation defines "nonviolent offense" as the converse of "crime of 1 Cook previously had been convicted of wire and mail fraud, but that previous conviction had no bearing on his eligibility for the § 3621(e)(2)(B) sentence reduction.
2 In the habeas petition, J.L. Sivley, the warden of the federal correctional facility in which Cook was incarcerated, was named as respondent. Mr. Sivley is now deceased. The current warden, Ron Riley, has been substituted as respondent in this action.
3 At oral argument, counsel indicated that Cook is presently in custody at the Federal Medical Center in Rochester, Minnesota. The relevant part of that regulation read as follows:
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 *3 violence," as that term is defined in 18 U.S.C. § 924(c)(3). [5] See id. In other words, the regulation says that whatever is not a "crime of violence" as that term is defined in § 924(c)(3) is a "nonviolent offense" under § 3621(e)(2)(B).
To insure that it would uniformly apply its regulation interpreting "nonviolent offense," as that term
is used in § 3621(e)(2)(B), the BOP formalized an interpretation of the regulation itself in a program
statement.
See Parsons v. Pitzer,
149 F.3d 734, 737 (7th Cir.1998). In contrast to a substantive rule
promulgated by an agency, a BOP program statement is "an interpretative statement of position circulated
within [the] agency that serves to provide administrative guidance in applying a then existing published rule."
Pelissero v. Thompson,
28 C.F.R. § 550.58 (1995). Although the regulation was amended in 1997, that amendment is inapplicable to this case. See n. 6, infra.
5 Section 924(c)(3) defines a "crime of violence" as 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 anothеr may be used in the course of committing the offense.
Id. § 924(c)(3). Section 924(c)(3) defines "crime of violence" for purposes of § 924(c)(1), which establishes mandatory minimum sentences for:
"any person who, during and in relation to any crime of violence or drug trafficking crime ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm." 18 U.S.C. § 924(c)(1) (emphasis added). P.S. 5162.02 was amended in April 1996, see BOP Change Notice-01 (April 23, 1996), but the
amendments do not affect the present case. Also, in October 1997, the BOP amended Regulation 550.58, *4 1995). In other words, the BOP interpreted (in the program statement) its own interpretation (in the regulation) of the statute. One offense listed in Section 7 of P.S. 5162.02 as a "crime of violence" per se is 18 U.S.C. § 922(g)—possession of a firearm by a felon. See id. 5162.02(7) (section titled "Criminal Offenses That Are Crimes Of Violence In All Cases").
A. Validity of the BOP's Interpretation of "Nonviolent Offense"
Cook contends that classifying a § 922(g) offense as a "crime of violence"—which prevents that
offense from being a "nonviolent offense" and excludes those convicted of it from consideration of a sentence
reduction—conflicts with the plain lаnguage of § 924(c)(3), and thus, also conflicts with the plain language
of § 3621(e)(2)(B). He further maintains the BOP's categorical treatment of § 922(g) as a "crime of violence"
is inconsistent with judicial treatment of that offense, and more particularly, is inconsistent with the law of
this Circuit.
See United States v. Flennory,
We begin our discussion of these contentions with an explanation of why our prior case law
interpreting "crime of violence" under § 924(c)(3) is not dispositive of the present issue. In
United States v.
Flennory,
this Court stated in passing that § 922(g) was not a "crime of violence" as defined in § 924(c)(3).
See Flennory,
The absence of a statutory definition of "nonviolent offensе" in § 3621(e)(2)(B) indicates that
Congress "intended the BOP to determine those offenses that qualify as nonviolent offenses and those
offenses to be excluded."
Parsons,
In determining which prisoners are potentially violent and therefore unsuitable for early release, the BOP looked to the definition of "crime of violence" in § 924(c)(3) to guide its discretion, but elected not to tie its hands with all of the interpretive case law that had arisen under that statute. The BOP was free to do that. After all, it could have simply parroted the language of § 924(c)(3) in Regulation 550.58 without specifically referring to the statute. The fact that the BOP used a shorthand reference to its chosen definitional standard for "nonviolent offense" does not mean it intended to bind itself to the past or future decisional law construing § 924(c)(3). So, while judicial decisions concluding that § 922(g) is not a "crime of violence" or "violent felony" under statutes other than § 3621(e)(2)(B) may offer guidance to the BOP, they do not compel it to reach the same conclusion when it is administering the sentence rеduction incentive program provided by that statute. In administrative law terms, Congress intended the "gap" of what constitutes a "nonviolent offense" to be filled by the BOP, not by the courts. Courts have a role, to be sure, but it is a limited one.
When a "statute is silent or ambiguous with respect to the specific issue," as § 3621(e)(2)(B) is here,
"the question for the court is whether the agency's answer is based on a permissible construction of the
statute."
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
We recognize that, as an internal BOP guideline, P.S. 5162.02(7) was not subjected to the heightened
scrutiny of administrative rulemaking, and thus, may not be entitled to the "considerable"deference accorded
under
Chevron
to аgency regulations promulgated under the ambit of the Administrative Procedure Act, 5
U.S.C. § 551,
et seq.
Nevertheless, the Supreme Court has instructed us that a BOP program statement,
"which is akin to an interpretive rule that do[es] not require notice and comment, is still entitled to some
deference ... [so long as] it is a permissible construction of the statute."
Reno v. Koray,
The Koray Court did not explain the difference between "some deference" and "considerable deference," and we need not hazard a complete explanation here. We do think it оbvious, however, that "some deference" means there are occasions in which we should uphold the interpretation contained in a BOP program statement, even though it is different from the one we would reach if we were deciding the matter de novo. If that were not true, "some deference" would be the same as "no deference," and that would render the Supreme Court's words in Koray meaningless. Giving the BOP's program statement implementing § 3621(e)(2)(B) deference is consistent with the overall statutory theme of granting the BOP substantial discretion to carry out the program. [7]
Granting "some deference" to the BOP, we think the ultimate inquiry is whether its interpretation of
"nonviolent offense" as that term is used in connection with this statutory program is reasonable.
See
Parsons,
In
United States v. Stinson,
Byrd therefore involved the first prong of Chevron —it was clear from the language of § 3621(e)(2)(B) that Congress intended the character of the offense of conviction, not that of the factors used for sentence enhancement, to determine which prisoners should be considered for early release. See id. In this case, however, Cook was convicted of violating § 922(g), an offense the BOP has determined not to be a "nonviolent offense" under § 3621(e)(2)(B). Because the congressional intent as to what constitutes a "nonviolent offense" is unclear, we move to the second prong of Chevron and address the reasonableness of the BOP's interpretation. The defendant in Stinson had been sentenced as a career offender under the Sentencing Guidelines based,
in part, on the district court's determination that the defendant's instant offense of conviction for possession
of a firearm by a felon constituted a "crime of violence" under U.S.S.G. § 4B1.2.
See Stinson,
The term "crime of violence" means any offense under federal or state law punishable by imprisonment for a term exceeding one year that—... is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of injury to another.
U.S.S.G. § 4B1.2(1)(ii) (1989) (emphasis added). Application note 2(B) to § 4B1.2 provided further that an offensе was a "crime of violence" where "the conduct set forth in the count of which the defendant was convicted involved use of explosives or, by its nature, presented a serious potential risk of physical injury to another. " Id., comment. n. 2 (1989) (emphasis added).
In this case, the BOP defined "nonviolent offense" by referring to the § 924(c)(3) definition of "crime of violence." Section 924(c)(3) defines a "crime of violence" as a felony "that ' by its *9 unanimous panel in Stinson relied on the reasoning of a district court opinion holding that § 922(g) was a "crime of violence" as defined in the Bail Reform Act—a definition substantively identical to that in § 924(c)(3) [10] —and explained:
The [district] court in Jones offered four independent justifications for its conclusion that the [§ 922(g) ] offense of weapons possession by a felon "by its nature" involves a "substantial risk of physical force": (1) felons are more likely to use firearms in an irresponsible manner; (2) felons are acutely aware that such activity is illegal, making the act of weapons possession a knowing disregard for legal obligations imposed upon them; (3) felons are more likely to commit crimes, enhancing the likelihood the weapon will be used in a violent manner; and (4) illegal weapons possession is аn ongoing offense that often is not ended voluntarily, but only through law enforcement intervention, thus "[t]he character of the crime cannot be measured solely as of the moment of discovery and arrest."
Id.
at 1271-72 (citing and quoting in part
United States v. Jones,
651 F.Supp.1309, 1310 (E.D.Mich.1987));
see also Parsons,
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'." 18 U.S.C. § 924(c)(3)(B) (emphasis added). 10 The Bail Reform Act defines "crime of violence" as "any other offense that is a felony and 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." 18 U.S.C. § 3156(a)(4)(B). Cook maintains that the commission of a § 922(g) offense is complete once the felon possesses the
firearm, and as a result, there is no inherent risk that a § 922(g) offense will result in violence "in the course
of committing the offense." 18 U.S.C. § 924(c)(3). He thus contends the BOP's categorical inclusion of §
922(g) as a "crime of violence" conflicts with the plain language of § 924(c)(3). However, as the district
court in
Jones
explained, possession of a firearm by a felon may reasonably be viewed as an "ongoing
offense" that terminates only upon the intervening act of law enforcement officials.
See Stinson,
943 F.2d
at 1272 (quoting
Jones,
In sum, the BOP decided that § 922(g) should not be considered a "nonviolent offense" under §
3621(e)(2)(B), because the BOP determined that offense to be a "crime of violence" as defined in § 924(c)(3).
Several district courts and a panel of this Court have interpreted virtually identical definitions of "crime of
violence" as applying to § 922(g).
[12]
While the opinions of those district courts and that panel of this Court
do not conclusively establish that the BOP's interpretation of "crime of violеnce," and conversely "nonviolent
offense," is ultimately correct, we think they do conclusively establish that the BOP's interpretation is
reasonable. Nothing more is required. While there are other plausible interpretations of § 924(c)(3), and
conversely, of § 3621(e)(2)(B), "it would be too much to say that the statute 'cannot bear the interpretation
adopted by' the [BOP]."
Koray,
For these reasons, we agree with the three other circuits which have concluded that the 1995 versions
of Regulation 550.58 and P.S. 5162.02(7) constitute a reasonable implementation of § 3621(e)(2)(B).
See
Pelissero,
In reversing and remanding our original Stinson decision, the Supreme Court concluded only that we had failed to accord sufficient defеrence to the supervening Sentencing Guidelines commentary, not that its initial interpretation that "crime of violence" included § 922(g) offenses was erroneous. Indeed, the Supreme Court specifically stated that "the exclusion of the felon-in-possession offense from the definition of 'crime of violence' may not be compelled by the [U.S.S.G. § 4B1.2] text." Stinson,508 U.S. at 47 ,113 S.Ct. at 1920 (emphasis added). Thus, while the initial decision of the Stinson panel was vacated and therefore has no precedential value, the fact remains that three judges of this Court unanimously concluded that § 922(g) "inherently constitutes a 'crime of violence' " under a dеfinition similar to the one interpreted by the BOP in this case. Stinson,957 F.2d at 815 .
implementation of the reduction in sentence provision of § 3621(e)(2)(B));
Parsons,
B. Constitutional Claims
Cook also contends that the BOP's refusal to consider him for a § 3621(e)(2)(B) reductiоn in sentence violates his rights to due process and equal protection under the Fifth Amendment of the United States Constitution. He is wrong about that, too.
In order to establish a violation of the Due Process Clause, a petitioner must have been deprived of
a liberty or property interest protected under the Fifth Amendment.
See American Mfrs. Ins. Co. v. Sullivan,
Neither did the BOP violate the Equal Protection Clause by excluding prisoners convicted under §
922(g) from consideration for a sentence reduction. Because the BOP's exclusion of § 922(g) offenders from
consideration for a discretionary reduction in sentence does not impinge upon a fundamental right,
see Olim,
Under a rational basis review, the BOP's interpretation of "nonviolent offense," embodied in
Regulation 550.58 and P.S. 5162.02(7), would violate the Equal Protection Clause only if it is not rationally
related to any legitimate gоvernmental objective.
See Heller v. Doe by Doe,
III. CONCLUSION
We hold that the 1995 version of Regulation 550.58, as applied through P.S. Statement 5162.02(7), which excluded from consideration for a § 3621(e)(2)(B) sentence reduction a prisoner serving a sentence for being a felon in possession of a firearm, in violation of § 922(g), constitutes a reasonable implementation of 18 U.S.C. § 3621(e)(2)(B). Furthermore, the BOP's refusal to consider reducing Cook's sentence did not violate either the Due Process or Equal Protection Clause. The district court's denial of Cook's habeas petition is affirmed.
AFFIRMED.