address the Plaintiff's petition for habeas corpus on the legal merits presented.
B. Habeas Corpus
A recent Third Circuit case gives us a methodology of reasoning our way through this kind of issue. In Roussos v. Menifee, 122 F.3d 159, 1997 U.S. App. LEXIS 18174 (3rd Cir. 1997), our Circuit considered a prisoner's eligibility for a reduction in his sentence subsequent to his completion of a 500 hour BOP drug treatment program. In Roussos, the prisoner was convicted of conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846. The BOP found the prisoner ineligible for early release because the sentencing court enhanced Roussos' sentence by two levels. The enhancement was the result of the arresting officers finding a firearm at Roussos' vacation home. The BOP disqualified the prisoner for early release based upon the prison's Program Statement, which classified the enhancement under the circumstances as a crime of violence. Roussos, at pp. 5-6.
The prisoner contended that he was eligible for early release because the crime for which he was convicted was not considered a crime of violence under § 924(c). To the contrary, the BOP argued that under the prison's Program Statement, a prisoner is deemed to have committed a "crime of violence" once a two level firearms enhancement is made by the sentencing court. Roussos, at p. 5.
In deciding the case, the Third Circuit looked towards the Ninth Circuit's reasoning in Downey v. Crabtree, 100 F.3d 662 (9th Cir. 1996). The Ninth Circuit was presented with a similar issue in which a prisoner was denied early release when he had received a two-level enhancement because firearms were found at the location of his arrest. Based upon the prison's Program Statement, the BOP denied Downey eligibility for a sentence reduction even though his conviction for possession of methamphetamine was not a crime of violence.
The Ninth Circuit held "the Bureau erred by conflating the guilt-determination (conviction) and sentencing processes." Id. at 668. The Court explained that the relevant statute, § 3621(e)(2)(B), was clear and unambiguous in addressing Downey's conviction. Thus, Downey's conviction was for a drug offense which is not a crime of violence and was only interpreted as a crime of violence through the sentence enhancement factors.
Similarly, in Roussos, the Third Circuit concluded that "by ignoring the offense of conviction and looking only to sentencing factors, the BOP has attempted to transmogrify a 'nonviolent offense' into a 'crime of violence.'" Roussos, at 8. Thus, applying the rationale of Downey, the Court found that "the BOP's interpretation of a nonviolent offense in the Program Statement to be in conflict with both 18 U.S.C. § 3621(e)(2)(B) and 28 C.F.R. § 550.58 and therefore erroneous." Roussos, at 9.
In both Roussos and Downey, the defendants' sentences were "enhanced" by conduct which could be considered violent behavior; but, their "convictions" were for nonviolent behavior. Here, petitioner Snisky's "conviction" was possession of a weapon by a felon which could be considered violent, especially considering all of the circumstances of the conviction. Thus, Snisky's citation of Downey as authority in support of his position is unpersuasive.
Our Circuit Court has recently affirmed a district court decision which held that a determination that "a conviction under 18 U.S.C. § 922(g)(1) constitutes 'a crime of violence' [within the meaning of § 924(c)] is within the discretion of the Bureau of Prisons." Litman v. Morris, 1996 U.S. Dist. LEXIS 21212, *2, No. 96-1207 (D.N.J. 1996) aff'd, 107 F.3d 7 (3d Cir. 1997)(table). In Litman, Judge Rodriquez's analysis focused on the provision of the Violent Crime Control and Law Enforcement Act which states that a reduction in a prisoners term of incarceration is left to the discretion of the BOP in accordance with 18 U.S.C. § 3621. He reasoned that since such a reduction is left to the discretion of the BOP, a determination as to what crimes constitute a "crime of violence" is also within the judgment of the BOP, where it is not specifically defined by 18 U.S.C. § 924(c)(3). Id..
The Litman court held that deference should be given to the BOP interpretation of section § 922(g)(1) as a crime of violence "'so long as it is a permissible construction of the statute,' because a regulatory interpretation of a statute by the agency responsible for its administration is entitled to great deference by the courts." Litman, at p. 6 (quoting Stinson v. United States, 508 U.S. 36, 44, 123 L. Ed. 2d 598, 113 S. Ct. 1913 (1993)). See also Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984)(deference given to agency interpretation of its own policy). Furthermore, the Bureau's interpretation as to what offenses constitute crimes of violence in terms of 18 U.S.C. § 3621(e)(1) will remain valid "as long as it is not unconstitutional, plainly erroneous, or inconsistent with the regulation it interprets." Litman, at p. 6. (citing Stinson, 508 U.S. at 45). We do not find that BOP's exclusion of 18 U.S.C. § 922(g) as a nonviolent offense was unconstitutional, plainly erroneous, or inconsistent with the regulation that it interprets.
Nevertheless, we recognize that the Ninth Circuit in Davis v. Crabtree, 109 F.3d 566 (9th Cir. 1997), reached another conclusion because it had previously decided that a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) was not a crime of violence. However, 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), Piccolo v. Lansing, 939 F. Supp. 319, 320 (D.N.J. 1996), the conclusion of the BOP that § 922(g)(1) is a crime of violence is not inconsistent with any "well established" law in the Third Circuit. Piccolo, 939 F. Supp. at 320. Therefore, we cannot apply the same reasoning as the Ninth Circuit.
Moreover, although the Supreme Court in Stinson 508 U.S. 36, 123 L. Ed. 2d 598, 113 S. Ct. 1913 (1993), held that possession of a firearm is a crime of violence under the United States Sentencing Guidelines pursuant to an Amendment to U.S.S.G. § 4B1.2(1), the Court did not find that such a conclusion would apply beyond the context of the United States Sentencing Guidelines. As applied to the case at bar, we may not determine that 18 U.S.C. § 922(g)(1) is not a crime of violence within the holding of Stinson because the Stinson Court did not determine that such a definition of section 922(g)(1) was to apply beyond the context of the Sentencing Guidelines.
Based upon our review, we determine that the Plaintiff is not entitled to habeas corpus relief pursuant to 28 U.S.C. § 2241. Because our Circuit Court has affirmed the conclusion that deference should be given to the BOP interpretation of section 922(g) as a crime of violence, we conclude that the Bureau's determination that Mr. Snisky is ineligible for a reduction in his sentence is valid. Accordingly, the Plaintiff's § 2241 motion (Doc. 1) is denied.
Richard P. Conaboy
United States District Judge
AND NOW, THIS 18th DAY OF AUGUST, 1997, IT IS HEREBY ORDERED THAT:
1. The Petitioner's habeas corpus motion pursuant to 28 U.S.C. § 2241 (Doc. 1) is denied.
2. By this ruling, we determine that the Bureau of Prison's interpretation of a violation of 18 U.S.C. § 922(g)(1) as a crime of violence is not unconstitutional or plainly erroneous and therefore should be given great deference by this Court. Accordingly, the Bureau of Prison's conclusion that the Petitioner is not entitled to a reduction of his sentence in terms of 18 U.S.C. § 3621(e)(2)(B) is valid.
3. The Clerk of Court is Directed to Close the Case File.
4. Any appeal from this Order will be deemed frivolous, lacking in probable cause and not in good faith.
Richard P. Conaboy
United States District Judge