Ray D. Love v. James W.Tippy ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-4224
___________
Ray D. Love, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
James W. Tippy, Warden; *
FCI Waseca, *
*
Defendants - Appellees. *
___________
Submitted: October 20, 1997
Filed: January 8, 1998
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Before McMILLIAN, LAY, and BEAM, Circuit Judges.
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LAY, Circuit Judge.
Ray D. Love (“Love”) filed this habeas corpus action to challenge the Bureau
of Prisons’ (“BOP”) decision to deny him a sentence reduction under 18 U.S.C.
§3621(e)(2)(B).1
1
The statute provides: “The period a prisoner convicted of a nonviolent offense
remains in custody after successfully completing a [substance abuse] 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.” 18 U.S.C. § 3621(e)(2)(B)
(1994).
Facts and Procedural Background
Love is a federal prisoner serving time for conspiring to distribute cocaine in
violation of 21 U.S.C. § 841(a)(1), and carrying a firearm during a drug trafficking
offense in violation of 18 U.S.C. § 924(c)(1).2 Love was convicted in 1990, and he
received consecutive sentences of sixty-three months for the drug offense and sixty
months for the firearm offense. Love’s firearm conviction under § 924(c) is based on
Love’s carrying of a .22 caliber handgun during and in relation to a drug trafficking
crime. Love did not brandish the weapon during the transaction.
While in prison, Love successfully completed a designated drug treatment
program, and he applied for a one-year reduction of his sentence pursuant to
§ 3261(e)(2)(B). The BOP denied Love’s application for a sentence reduction after
concluding a § 924(c) conviction is not a conviction for a “nonviolent offense.”
In reaching its decision, the BOP relied, in part, upon its own rule set forth in 28
C.F.R. § 550.58. The version of this rule in effect at the time of Love’s application
stated:
2
Section 924(c)(1) states in relevant part:
Whoever, during and in relation to any crime of violence or drug
trafficking crime (including a crime of violence or drug trafficking crime
which provides for an enhanced punishment if committed by the use of a
deadly or dangerous weapon or device) for which he may be prosecuted
in a court of the United States, uses or carries a firearm, shall, in addition
to the punishment provided for such crime of violence or drug trafficking
crime, be sentenced to imprisonment for five years [ ]. . . .
18 U.S.C. § 924(c)(1) (1994).
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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). . . .
28 C.F.R. § 550.58 (1995) (emphasis added). Congress has defined “crime of
violence” in section 924(c)(3) as follows:
For purposes of this subsection the term “crime of violence” means
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.
18 U.S.C. § 924(c)(3) (emphasis added).3
After exhausting his administrative remedies, Love filed a Petition for Writ of
Habeas Corpus in the United States District Court pursuant to 28 U.S.C. § 2241. The
district court4 adopted the magistrate judge’s5 report and recommendation in its
3
The BOP also relied upon two of its internal program statements. BOP Program
Statement 5330.10 provides that an inmate whose current offense is determined to be
a crime of violence as defined in 18 U.S.C. § 924(c)(3) is not eligible for early release
consideration under § 3621(e)(2)(B). BOP Program Statement 5162.02 (“P.S.
5162.02”) states that for purposes of determining an inmate’s eligibility for a reduced
sentence under § 3621(e)(2)(B), violations of § 924(c) will be considered crimes of
violence in all cases.
4
Honorable Richard H. Kyle, United States District Judge for the District of
Minnesota.
5
Honorable Franklin L. Noel, Chief Magistrate Judge for the District of
Minnesota.
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entirety, and denied Love’s petition. Love v. Tippy, Civ. No. 3-95-1034 (D. Minn.
Nov. 25, 1996) (order denying application for writ of habeas corpus). The district court
concluded that because Congress was silent on the meaning of “nonviolent offense”
within 18 U.S.C. § 3621(e)(2)(B), the BOP properly promulgated regulations
interpreting the phrase, and its interpretation does not contradict congressional intent.
Id. Love appeals.
BOP Interpretation of 18 U.S.C. § 3621(e)(2)(B)
The BOP determined the term “nonviolent offense” as used in § 3621(e)(2)(B)
does not include offenses that are “crimes of violence” as defined in § 924(c)(3). Love
argues the BOP exceeded its statutory authority when it made this determination.6
6
Love also argues that P.S. 5162.02, an internal agency interpretation of
§ 550.58, is inconsistent with § 550.58. While § 550.58 defines ineligibility for a
§ 3621(e)(2)(B) sentence reduction by the term “crime of violence as defined by 18
U.S.C. § 924(c)(3),” P.S. 5162.02 defines “crime of violence” to include all offenses
under § 924(c). “[P]rovided an agency’s interpretation of its own regulations does not
violate the Constitution or a federal statute, it must be given ‘controlling weight unless
it is plainly erroneous or inconsistent with the regulation.’” Stinson v. United States,
508 U.S. 36, 45 (1993) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410,
414 (1945)).
We do not find P.S. 5162.02 to be inconsistent with § 550.58. P.S. 5162.02
further defines the term “crime of violence” as that term is used in § 924(c)(3). Given
the definition of crimes of violence in § 924(c)(3)(B), it seems reasonable to label all
§ 924(c) offenses as “crimes of violence.”
Love also argues the BOP’s action of denying him a sentence reduction is
inconsistent with the BOP policies set forth in P.S. 5162.02. Love contends the section
of P.S. 5162.02 that makes § 924(c) violations “crimes of violence in all cases,” refers
to “firearms used in violent or drug trafficking crimes.” Love notes the terms “use”
and “carrying” in § 924(c) have distinct meanings, Bailey v. United States, ___ U.S.
___, 116 S. Ct. 501, 507 (1995), and he was neither charged with nor convicted of
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Whether the BOP’s interpretation of a statute violates the Constitution7 or
exceeds its statutory authority is a proper ground of inquiry for this court. See Webster
v. Doe, 486 U.S. 592, 602-05 (1988); Jones v. United States Bureau of Prisons, 903
F.2d 1178, 1184 (8th Cir. 1990). It is well-settled that “if a statute is unambiguous the
statute governs; if, however, Congress’ silence or ambiguity has ‘left a gap for the
agency to fill,’ courts must defer to the agency’s interpretation so long as it is ‘a
permissible construction of the statute.’” Stinson, 508 U.S. at 44 (quoting Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43
(1984)).
Congress’ decision to leave the term “nonviolent offense” undefined in
§ 3621(e)(2)(B), indicates Congress’ intent to give the BOP discretion to decide
whether an inmate’s offense of conviction is a nonviolent offense. We hold the BOP’s
decision to exclude convictions under § 924(c) from its list of “nonviolent offenses” is
within its statutory authority. See Stinson, 506 U.S. at 44.
using a firearm during a drug trafficking offense. Thus, Love urges, when the BOP
denied his sentence reduction request, it did not follow its policy that only categorizes
firearms used in violent or drug trafficking crimes as crimes of violence.
We do not find this argument persuasive. Although the terms “use” and
“carrying” in § 924(c) have distinct meanings, see Bailey, 116 S. Ct. at 507, and P.S.
5162.02 does describe § 924(c) as “firearms used in violent or drug trafficking crimes,”
this statement is merely the BOP’s internal description of § 924(c). Perhaps this
description could be more accurate. Even so, this description does not create a BOP
policy that only § 924(c) offenses involving the use of firearms are “crimes of
violence.” P.S. 5162.02 makes clear that § 924(c) convictions are to be categorized
as crimes of violence in all cases.
7
In his appeal to this court, Love does not claim the BOP’s interpretation of
§ 3621(e)(2)(B) violates the Constitution.
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We also find the BOP’s interpretation of the phrase “nonviolent offense” to be
a permissible construction of § 3621(e)(2)(B). Any § 924(c) violation necessarily
involves a firearm. See 18 U.S.C. § 924(c)(1). An individual may not be convicted
under § 924(c)(1) unless that individual uses or carries a firearm “during and in relation
to” a crime of violence or a drug trafficking crime. See id. (emphasis added). Given
the inherently violent nature of firearms, and the danger firearms pose to all members
of society, the BOP did not act unreasonably when it determined that a § 924(c)(1)
offense is not a “nonviolent offense” for purposes of § 3621(e)(2)(B).8
Finally, we note that § 3621(e)(2)(B) is discretionary. It does not require the
BOP to give any prisoner a sentence reduction. Section 3621(e)(2)(B) only requires
that the BOP: 1) limit its consideration for sentence reductions to those prisoners
convicted of nonviolent offenses; and 2) limit any sentence reduction to one year or
less. See 18 U.S.C. § 3621(e)(2)(B). The BOP acted within its discretion in
concluding § 924(c) convictions are not “nonviolent offenses” under § 3621(e)(2)(B).9
8
The government argues that with few exceptions, see Downey v. Crabtree, 100
F.3d 662, 670 (9th Cir. 1996), courts have consistently upheld the BOP’s position that
prisoners convicted of firearm offenses are ineligible for sentence reductions under §
3621(e)(2)(B). In support of this contention, the government refers this court to an
Eighth Circuit panel’s recent decision in Sesler v. Pitzer, 110 F.3d 569 (8th Cir. 1997),
cert. denied, ___U.S.___, 118 S. Ct. 197 (1997)).
Sesler is somewhat different than this case. Unlike Sesler, Love was not
convicted of the “use” of a weapon during drug trafficking. Thus, although we reach
the same result as the Sesler panel, we are reluctant to rely solely on Sesler in
upholding the BOP’s conclusion that Love’s § 924(c)(1) conviction is not a “nonviolent
offense” under § 3621(e)(2)(B).
9
Based on our jurisdiction to review the BOP’s exercise of discretion in deciding
all prisoners convicted of § 924(c) offenses are ineligible for § 3621(e)(2)(B) sentence
reductions, we also find the BOP did not abuse its discretion in denying Love’s
individual application for a § 3621(e)(2)(B) sentence reduction.
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For the foregoing reasons, we affirm the decision of the district court.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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