After confessing that he funneled approximately 400 guns to gangs engaged in the drug trade, James Bush pleaded guilty to conspiracy to violate the firearms-control laws. Substantive weapons сharges were dismissed as part of the plea bargain. His sentence is 57 months’ imprisonment, the maximum of a Guideline range that was increased by 14 levels because of the number of firearms sold, thе obliteration of serial numbers, the vocation of the buyers, and the danger the guns posed to the public in the buyers’ hands. In prison Bush successfully completed a drug abuse treatment program. Sоme prisoners who do this qualify for early release under 18 U.S.C. § 3621(e)(2)(B): “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.” The Bureau refused to advance the date of Bush’s release, citing Program Statement 5162.02. He sought a writ of ha-beas corpus under 28 U.S.C. § 2241 and appeals from the district court’s order denying his petition. After receiving the notice of appeal the district court issued an order purporting to deny Bush’s request for a certificate of appealability, but Bush had not made such a request — and for good reason. Under 28 U.S.C. § 2253(е)(1)(B), a federal prisoner needs a certificate of appealability only when appealing from the denial of relief under 28 U.S.C. § 2255. Having paid the docket fees, Bush also does not need the court’s leave to proceed in forma pauperis.
Bush does not contend that his custody violates the Constitution, making it unclear why he seeks relief under § 2241. Section 3621(e)(2)(B) permits but does not comрel early release, so it would be difficult to say that the custody violates even a statute. Section 2241 does not permit review of prison and parole decisions after the fashiоn of the Administrative Procedure Act; a pris
*457
oner seeking relief under § 2241 must demonstrate that the custody is unlawful, and not just that an administrative official made a mistake in the implementation of a stаtute or regulation. See, e.g.,
Kramer v. Jenkins,
Sections 9 and 10 of Program Statement 5162.02 say that the Bureau of Prisons treats certain offenses as “violent” if adjustmеnts under the Sentencing Guidelines were based on events associated with violence, such as the possession or sale of firearms (or, here, the obliteration of serial numbers). The Bureаu told Bush that he is disqualified under this definition of a “violent” offense. Two courts of appeals have held that this portion of Program Statement 5162.02 is incompatible with § 3621(e)(2)(B) because the statute speaks of “a nonviolent offense” while the Program Statement anchors- the definition to deeds that do not constitute the “offense.”
Roussos v. Menifee,
Section 5 of the Program. Statement adopts as the definition of “violent offense” the definition of a “crime of violence” in 18 U.S.C. § 924(c)(3):
an offense that is a felony and—
(A) has as an element the use, attеmpted 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.
Like § 3621(e)(2)(B), the definition in § 924(e)(3) refers to the elements or nature of the “offense”. An offense such as conspiracy neither has the use of physical force as an element, § 924(c)(3)(A), nor “by its nature” creates a substantive risk that physical force will be used, § 924(c)(3)(B). There is a mismatch betweеn the offense-of-conviction approach adopted by § 3621(e)(2)(B) and § 924(c)(3) and the “underlying facts” or “real offense” approach of Program Statement 5162.02. When defining “crime of viоlence” under § 924(c)(3) and similar parts of the Sentencing Guidelines, courts consistently look to the acts that constituted the crime of conviction and not to the underlying conduct. See, e.g.,
Taylor v. United States,
A conclusion that Program Statement 5162.02 adopts an overbroad definition of a violent offense does not show, however, that Bush is entitled to early release. Commission of a “nonviolent offense” makes a prisoner eligible for consideration but does not require the Bureau to grant the boon he seeks. Eligibility is not entitlement. The Bureau has adopted a regulation (аfter notice and comment rulemaking) withholding the benefit from some prisoners:
*458 An inmate who was sentenced to a term of imprisonment ... for a nonviolent offense, and who is determined to havе a substance abuse problem, and successfully completes a residential drug abuse treatment program during his or her current commitment 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:
(i) INS detainees;
(ii) Pretrial inmates;
(iii) Contractual boarders (for example, D.C., State, or military inmаtes);
(iv) Inmates who have a prior felony or misdemeanor conviction for homicide, forcible rape, robbery, or aggravated assault, or child sexual abuse offenses;
(v) Inmates whо are not eligible for participation in a community-based program as determined by the Warden on the basis of his or her professional discretion;
(vi) Inmates whose current offense is a felony:
(A) That has as an element, the aсtual, attempted, or threatened use of physical force against the person or property of another, or
(B) That involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device), or
(C) That by its nature or conduct, presents a serious potential risk of physical force against the person or property of another, or
(D) That by its nature or conduct involves sexual abuse offenses committed upon children.
28 C.F.R. § 550.58. Three appellаte courts have held that the precursor to this regulation is compatible with § 3621(e)(2)(B) because the Bureau of Prisons is entitled to use any rational, non-invidious criteria when deciding which of the statutorily “eligible” prisoners receive reductions.
Stiver v. Meko,
Section 550.58(a)(1)(vi)(C) disqualifies Bush. It covers persons whose crime, “by its nature or conduct, presents a serious potential risk of physical force against the person or property of another”. Conspirаcy does not by its “nature” present a serious risk; but Bush’s “conduct” did so. Selling 400 guns to drug runners creates substantial risks to innocent persons. Other subsections of the regulation also may be relevant, but we neеd not consider their effect. Although the language of § 550.58 changed after the Bureau denied Bush’s application for earlier release (we have quoted the current version), it did not chаnge to his detriment. The old version (see 60 Fed.Reg. 27695) disqualified not only Bush but also many more prisoners. The change was designed to increase the number of prisoners who could benefit from the prоgram. See 62 Fed.Reg. 53690 (Oct. 15, 1997). The current regulation makes Program Statement 5162.02 irrelevant, so it would be pointless to direct the Bureau of Prisons to reconsider Bush’s application: even if he is “еligible” under the statute he cannot be released before the end of his sentence. A prisoner whose offense was “nonviolent” is eligible in the sense that the Bureau could release him early, but the Bureau need not extend the program to the maximum extent the statute permits. A prisoner is excluded under § 550.58 if his conduct created a substantial risk of future *459 •violence. Bush’s conduct did so, and the order denying his petition for a writ of habe-as corpus therefore is
AFFIRMED.