Lead Opinion
Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge WILKINS joined. Judge CHAMBERS wrote a dissenting opinion.
OPINION
Section 3621(e)(2)(B) of Title 18 of the United States Code provides that the prison terms of prisoners convicted of “nonviolent” offenses may be reduced by the Bureau of Prisons in an amount up to one year as an incentive for the prisoners’ successful completion of a residential substance abuse treatment program. Although inmates Robert Pelissero and Aubra Hayes completed the specified substance abuse treatment program, the Bureau of Prisons denied them any reduction of their sentences, relying on its Program Statement No. 5162.02, which specifies that a prisoner convicted of, or whose sentence was enhanced for, possession of a firearm during the commission of a drug offense is convicted of a “crime of violence” and cannot have his sentence reduced under § 3621(e)(2)(B).
In separate petitions for a writ of habeas corpus filed under 28 U.S.C. § 2241, Pelisse-ro and Hayes challenged the validity of Program Statement No. 5162.02, particularly its definition of “nonviolent offense.” In each case, the district court upheld the Program Statement and denied the petition. For reasons that follow, we affirm.
I
As part of the Crime Control Act of 1990, Congress required the Bureau of Prisons to “make available appropriate substance abuse
To interpret the statute, the Bureau of Prisons issued a regulation in May 1995 defining “nonviolent offense” as the converse of “a crime of violence.” See 28 C.F.R. § 550.58 (1995). This 1995 regulation excluded from eligibility for early release under § 3621(e)(2)(B) those inmates whose “current offense is determined to be a crime of violence as defined in 18 U.S.C. § 924(c)(3).” 28 C.F.R. § 550.58(1995). Section 924(c)(3) of Title 18 in turn defines a crime of violence as any offense that is a felony and that either “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” or “by its nature, involves a substantial risk that physical force against the person or property of another maybe used in the course of committing the offense.” In its request for comment, which accompanied the publication of Regulation 550.58, the Bureau of Prisons explained that “[information contained in the Presentence Investigation Report ordinarily is sufficient to allow staff to determine if the inmate’s committed offense meets this definition of crime of violence.” 60 Fed.Reg. 27692, 27692 (May 25,1995).
To further assist case management staff in deciding whether an inmate qualifies for early release under 18 U.S.C. § 3621(e)(2)(B) and under implementing Regulation 550.58, the Bureau of Prisons adopted Program Statement No. 5162.02 (“P.S. 5162.02”) in July 1995. The Program Statement offers an exhaustive list of offenses that the agency considers to be “crimes of violence.” Section 7 of the Program Statement provides that “in all cases” a conviction under 18 U.S.C. § 922(g) constitutes a crime of violence. And Section 9 identifies other offenses “that may be crimes of violence depending on the specific offense characteristic assigned.” Section 9 expressly provides that a defendant who has been convicted of a drug offense under 21 U.S.C. § 841 and who has received a two-level sentencing enhancement for gun possession has been convicted of a “crime of violence.” The Program Statement explains that such possession “poses a substantial risk that force may be used against persons or property.”
Because federal cases have held that possession of a firearm by a felon is not a crime of violence under 18 U.S.C. § 924(c), a split has developed among the circuits on the question of whether P.S. 5162.02 is a valid interpretation of the Bureau of Prisons’ Regulation 550.58 or whether the Bureau of Prisons is bound by the case law interpreting the definition of “crime of violence” found in 18 U.S.C. § 924(c),which definition the Bureau of Prisons incorporated into its regulation. Compare, e.g., Parsons v. Pitzer,
To clarify how it has been exercising, and intends to exercise, its discretion granted under 18 U.S.C. § 3621(e)(2)(B), the Bureau of Prisons adopted a revised Regulation 550.58 in October 1997. The revised regulation abandons its incorporation of the crime-of-violence definition from 18 U.S.C. § 924(c) and restates the Bureau’s position held in P.S. 5162.02. It again excludes those inmates from eligibility for early release “whose current offense is a felony” that “involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives.” 28 C.F.R. § 550.58(a)(l)(vi)(B) (1997). This 1997 revised regulation, however, was issued after the notices of appeal in these cases were filed. Moreover, because the Bureau of Prisons has intended to apply its revised regulation to inmates who entered a drug treatment program after October 9, 1997, see Program Statements 5333.10 & 5162.04 (Oct. 9, 1997), and Pelissero and Hayes entered drug programs before October 9,1997, we will review these cases under the original 1995 regulation and P.S. 5162.02.
II
Pelissero pled guilty to conspiracy to distribute and possess with intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). On August 23, 1991, the district court in the Western District of Pennsylvania sentenced him to 100 months imprisonment. This sentence included a two-level enhancement imposed pursuant^ to § 2D1.1 of the United States Sentencing Guidelines for possessing a firearm during the commission of these offenses. Hayes pled guilty to distribution of over five grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and to possession of a handgun by a convicted felon, in violation of 18 U.S.C. § 922(g). On March 2, 1993, the district court in the Southern District of Ohio sentenced Hayes to two concurrent 84-month sentences of imprisonment.
Both Pelissero and Hayes are currently incarcerated at the Federal Correctional Institution in Morgantown, West Virginia.
Pelissero completed a drug abuse treatment program conforming to the requirements of 18 U.S.C. § 3621(b) in May 1993, and Hayes completed a similar program in August 1995. Both, however, were denied reduction of their sentences under 18 U.S.C. § 3621(e)(2)(B) because they did not qualify for the reduction as that statute was interpreted by Bureau of Prisons’ Program Statement No. 5162.02(7) & (9). Because Pelissero’s sentence had been enhanced for possession of a firearm in connection with a drug offense and Hayes had been convicted of possession of a firearm by a convicted felon, both were deemed by the Bureau of Prisons to have been convicted of crimes of violence as defined in P.S. 5162.02.
After exhausting their administrative remedies, Pelissero and Hayes filed these petitions for habeas corpus under 28 U.S.C. § 2241, challenging the validity of P.S. 5162.02. The district court upheld the Program Statement’s validity, observing:
The use of guns in connection with drug offenses clearly causes one of the most violent and deadly problems our society has to deal with today. It is entirely reasonable and certainly not arbitrary for the BOP to equate gun possession and drug dealing with violence, thus supporting its interpretation of not being a “nonviolent offense.”
Pelissero v. Thompson,
Ill
Pelissero and Hayes contend that they were not convicted of crimes of violence within the meaning of 28 C.F.R. § 550.58 (1995) and 18 U.S.C. § 924(c)(3), the statute which is incorporated into the regulation. They note that other circuit courts interpreting § 924(c) have held that drug trafficking accompanied by possession of a handgun
Pelissero’s and Hayes’ position that P.S. 5162.02 is invalid has some support. See, e.g., Martin,
In determining the validity of P.S. 5162.02, we must consider the related regulation, 28 C.F.R. § 550.58 (1995), and the authorizing statute, 18 U.S.C. § 3621(e)(2)(B). The principles governing this analysis are well-established:
First, we must determine whether the statute directly addresses the precise issue before us. “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.” Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,467 U.S. 837 , 842-43,104 S.Ct. 2778 ,81 L.Ed.2d 694 (1984). Second, if the statute is silent or ambiguous in expressing congressional intent, we must determine whether the agency’s interpretation is based on a “permissible construction of the statute.” Chevron,467 U.S. at 843 ,104 S.Ct. 2778 .
Snowa v. Commissioner of Internal Revenue,
Although the statute grants the Bureau of Prisons broad discretion to grant or deny sentence reductions to inmates who are convicted of “a nonviolent offense” and who complete a drug treatment program, see 18 U.S.C. § 3621(e)(2)(B), it is silent about defining “a nonviolent offense.” Accordingly, we must decide whether 28 C.F.R. § 550.58(1995), as applied through P.S. 5162.02, represents a reasonable implementation of the statute. Our decision in Snowa restates the guiding principles:
Our standard of review in determining whether an agency’s regulation is valid depends on whether the regulation is legislative or interpretive. A regulation promulgated in the following circumstance is legislative: “If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.” Chevron,467 U.S. at 843-44 ,104 S.Ct. 2778 . Legislative regulations are to be given “controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844,104 S.Ct. 2778 . Interpretive regulations, on the other hand, clarify ambiguous terms found in the statute or explain how a provision operates. Interpretive regulations are accorded “considerable weight,” id., and should be upheld if they implement the congressional mandate in a reasonable manner. National Muffler Dealers Ass’n, Inc. v. United States,440 U.S. 472 , 476,99 S.Ct. 1304 ,59 L.Ed.2d 519 (1979).
As the district court appropriately recognized, Congress entrusted the decision whether to grant inmates early release under 18 U.S.C. § 3621(e)(2)(B) “solely to the discretion and expertise of the BOP, with a cautious eye toward the public safety and welfare.” Pelissero,
While the Bureau of Prisons’ definition of a crime of violence may not be consistent with court interpretations of 18 U.S.C. § 924(c)(3), it is, nevertheless, a permissible and reasonable interpretation of the statute from which the Bureau derived its authority. We agree with the Seventh Circuit’s observation in Parsons:
Given the substantial risk of danger and the inherently violent nature of firearms, particularly firearms in the possession of a convicted felon, there is nothing unreasonable about the BOP’s decision to classify a conviction for possession of a firearm by a felon as “a crime of violence in all cases” for purposes of determining an inmate’s eligibility for early release.
Pelissero and Hayes also argue that P.S. 5162.02 is invalid because it was not published for notice and comment as required for agency rulemaking under the Administrative Procedure Act. A policy statement, however, is not a substantive rule but rather an interpretative statement of position circulated within an agency that serves to provide administrative guidance in applying a then existing published rule. Accordingly, it is not subject to rulemaking requirements. See Parsons,
In short, through 28 C.F.R. § 550.58 (1995) and P.S. 5162.02, which define a violent crime as one whose commission includes the possession or use of firearms, the Bureau of Prisons has exercised the discretion given to it by Congress in 18 U.S.C. § 3621(e)(2)(B). Because possessing a firearm adds an aspect of violence to otherwise nonviolent conduct by posing a risk of danger to others, we conclude that the Bureau of Prisons acted permissibly and reasonably in applying 18 U.S.C. § 3621(e)(2)(B) to deny inmates early release when their convictions involve the use or possession of firearms.
IV
Applying 28 C.F.R. § 550.58 (1995) and P.S. 5162.02 to Pelissero and Hayes, there is no substantial dispute that they failed to qualify as prisoners who have been convicted of a nonviolent offense. Both were convicted of felonies, see 18 U.S.C. § 3559(a) (an offense for which the maximum term of impris
Accordingly, we affirm the district court’s orders denying their petitions for a writ of habeas corpus.
AFFIRMED.
Dissenting Opinion
dissenting:
The BOP has exceeded its statutory authority by interpreting 18 U.S.C. § 3621(e)(2)(B) in a manner inconsistent with the plain language of the statute and contrary to settled law. The BOP’s misinterpretation of its governing statute, in both its original regulations and the 1997 revisions, reveals a misunderstanding of the proper exercise of the BOP’s discretion. Both the majority and the BOP would expand the parameters of the BOP’s discretion to allow the agency to redefine a statutory term beyond its plain meaning. For these reasons and the reasons stated herein, I respectfully dissent. *
The governing statute, 18 U.S.C. § 3621(e)(2)(B), allows the BOP to grant sentence reductions to inmates “convicted of a nonviolent offense.” As almost every circuit court has recognized, “[t]he operative word of § 3621(e)(2)(B) is ‘convicted.’ ” Downey v. Crabtree,
The majority premises its analysis on the view that the statute does not define the phrase “nonviolent offense”, reducing the issue to whether the BOP regulation and policy statement reasonably interpret these words. This approach first ignores an important part of the phrase in the statutory language, which reads “convicted of a nonviolent offense”. The plain meaning of this phrase is not difficult to discern, and its application requires only a review of the charge of conviction to determine whether actual or implied violence was an element. To the extent that this phrase is ambiguous or the statute is silent as to its meaning, the BOP correctly looked to § 924(c)(3) in its initial regulation. However, with no compelling reason to ignore the judicial interpretations of this language, the Bureau did just
The Supreme Court has held that federal courts are bound by the Sentencing Commission’s definition of “crime of violence” in the commentary to U.S.S.G. § 4B1.2, which provides that felon in possession of a firearm convictions are not crimes of violence. Stinson v. United States,
The majority seems to believe that these contradictions can be justified as permissible exercises of the BOP’s discretion. Con-cededly, the statute vests virtually unfettered discretion in the BOP to determine who, among the statutorily eligible inmates, should be granted early release. Under the statute, the BOP also has broad discretion to determine the length of any particular sentence reduction. But the BOP does not have discretion to interpret statutory language in a way that conflicts with the statute’s plain meaning, as well as settled law. As a recent district court opinion explained:
BOP does not ... have the “discretion” to interpret “prisoners convicted of a nonviolent offense” and “crimes of violence” under § 924(c)(3) in whatever way it chooses. These are statutory and regulatory terms whose meaning is quite clear, to the extent BOP has its own definitions of these terms, these interpretations are not permissible exercises of discretion but are instead statutory interpretations by an agency to which this Court owes some deference only if not contrary to the statute’s clear meaning.
La Sorsa v. Spears,
Under this view, BOP officials may deny or limit sentence reductions to individual inmates convicted of nonviolent offenses based on such factors as sentence enhancements and firearm possession. But this does not change the fact that such inmates are statutorily eligible for sentence reductions, and are thus statutorily entitled to an individualized determination by the BOP. The Bureau may impose reasonable restrictions or limitations on any sentence reduction based upon the particular prisoner’s propensity to violence, even for those inmates whose eligibility is not at issue. Even so, I do not believe the BOP may categorically exclude such inmates without offending the statute’s plain language and settled law. For these reasons, I would join in the reasoned judgment of seven of our sister circuits, as well as a recent panel of this court, and find that the BOP exceeded its statutory authority in categorically excluding inmates from sentence reductions based upon sentencing factors and firearm possession convictions.