Hunnicutt v. Hawk

• Decision Date: 16 October 2000
• Docket Number: No. 99-6435,99-6435
• Citation: 229 F.3d 997
• Parties: (10th Cir. 2000) DENNY HUNNICUTT, Petitioner-Appellant, v. KATHLEEN HAWK, Respondent-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 997

229 F.3d 997 (10th Cir. 2000)

DENNY HUNNICUTT, Petitioner-Appellant, v. KATHLEEN HAWK, Respondent-Appellee.

No. 99-6435

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

October 16, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. (D.C. No. 98-CV-1717-A)

Denny Hunnicutt, Pro Se.

Before BALDOCK, KELLY, and HENRY, Circuit Judges.

PER CURIAM.

Petitioner-appellant Denny Hunnicutt, a federal inmate appearing pro se, appeals the denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. 2241. He filed suit against the warden, challenging the Bureau of Prison's (BOP) determination that he is ineligible for a sentence reduction under 18 U.S.C. 3621(e)(2)(B). Because Mr. Hunnicutt is a federal prisoner, a certificate of appealability is not required to appeal the district court's denial. See Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000); McIntosh v. United States Parole Comm'n, 115 F.3d 809, 810 n.1 (10th Cir. 1997). The respondent-appellee has not filed a brief. Granting Mr. Hunnicutt's request to proceed in forma pauperis, we affirm.¹

Background

Mr. Hunnicutt pled guilty on January 16, 1997, to conspiracy to possess methamphetamine with intent to distribute, in violation of 21 U.S.C. 846, and conspiracy to commit an offense against the United States in violation of 18 U.S.C. 371, specifically to knowingly and intentionally use and/or carry a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. 924(c). He was sentenced to a term of ninety-two months. He began a residential drug abuse program (RDAP) in prison in November 1997. After completing the program, he unsuccessfully sought reduction of his sentence under 3621(e)(2)(B). Section 3621(e)(2)(B) allows the BOP to reduce an inmate's sentence by as much as one year if the inmate was "convicted of a nonviolent offense" and successfully completes a substance abuse treatment program. See id. The statute does not define the term "convicted of a nonviolent offense."

Initial Determination of Ineligibility

The BOP initially determined Mr. Hunnicutt was ineligible under 3621(e)(2)(B) because his sentence had been enhanced for possession of a firearm during the commission of his offense. Mr. Hunnicutt then filed his 2241 complaint alleging the BOP exceeded its statutory authority in light of this court's ruling in Fristoe v. Thompson, 144 F.3d 627 (10th Cir. 1998). In Fristoe, this court invalidated a previous BOP policy that categorically prohibited inmates whose sentences had been increased by a firearm enhancement from being eligible for early release under 3621(e)(2)(B). We held that reliance on sentence enhancements conflicts with the plain language of 3621(e)(2)(B), which refers to the offense for which the prisoner was convicted. See 144 F.3d at 631-32.

In response to Mr. Hunnicutt's complaint, the respondent argued that Fristoe was inapplicable because Mr. Hunnicutt began the RDAP in November 1997, after amendments in October 1997 to the regulation interpreting 3621(e)(2)(B), 28 C.F.R. 550.58 (1997), and BOP Program Statement No. 5162.04 (October 9, 1997).² These amended policies provide that, as an exercise of the BOP's discretion, an inmate whose sentence was enhanced for possession of a firearm is ineligible for the sentence reduction of 3621(e)(2)(B). See Ward v. Booker, 202 F.3d 1249, 1253 (10th Cir. 2000), petition for cert. filed, 68 U.S.L.W. 3023 (U.S. July 3, 2000) (No. 00-18).

The magistrate judge concluded that the newly amended regulation and Program Statement did not alter the substance of what the BOP was doing--denying 3621 eligibility to prisoners based solely on a sentence enhancement, rather than a conviction--and, therefore, that the BOP exceeded its authority in relying on Mr. Hunnicutt's sentence enhancement to deny him eligibility. The magistrate judge recommended that Mr. Hunnicutt's petition be conditionally granted, subject to reconsideration by the BOP of Mr. Hunnicutt's eligibility. The magistrate judge correctly anticipated our decision in Ward, in which we held the BOP's revised policy still conflicts with the clear language of 3621(e)(2)(B), and that the BOP's attempt to couch it as merely an exercise of its discretion did "not make it any less contrary to the statute." Id. at 1256.³

Revised Determination of Ineligibility

The BOP reconsidered Mr. Hunnicutt's eligibility under 3621(e)(2)(B) after the magistrate judge's report issued. It concluded that Mr. Hunnicutt remained ineligible for early release, but for a different reason: his 371 conspiracy conviction was a crime of violence because it was based on a violation of 18 U.S.C. 924(c), conspiracy to use or carry firearms during and in relation to the commission of a drug trafficking crime. The BOP's new statement of denial, which was filed with respondent's objections to the magistrate judge's recommendation, stated that "the underlying offense is categorized as violent, [thus], the conspiracy offense is violent as well." R. Doc. 19, Ex. A.

Regulation 550.58 expressly renders ineligible for early release any felony inmate whose offense "involved the carrying, possession, or use of a firearm. . . ." 28 C.F.R. 550.58(a)(1)(vi)(B). Program Statement No. 5162.04, in effect when Mr. Hunnicutt started the RDAP, lists a firearms conviction under 924(c) as a crime of violence, and states, with respect to conspiracy convictions under 371, that "[i]f the underlying offense is categorized as violent [in the Program Statement], then the . . . conspiracy offense is also violent." R. Doc. 13, Ex. F, at 4 and 7-8. The district court concluded that the BOP was within its statutory authority to deny Mr. Hunnicutt 3621 eligibility because of his conviction under 371 for conspiracy to use or carry a firearm during and in relation to a drug trafficking offense.

Analysis

"We review de novo the district court's denial of habeas corpus relief." Martinez v. Flowers, 164 F.3d 1257, 1258 (10th Cir. 1998). Because the Administrative Procedure Act does not apply to 3621, we may not review whether the BOP erred in Mr. Hunnicutt's particular case, but may only review whether the BOP exceeded its statutory authority in construing 3621(e)(2)(B). See Fristoe, 144 F.3d at 630-31. "An agency's interpretation of a statute by formal regulation or adjudication is entitled to deference, so long as the agency's interpretation is based upon a permissible construction of the statute." Id. at 631. "Where the agency's interpretation of the statute is made informally, however, such as by a 'program statement,' the interpretation is not entitled to [such] deference, but will instead be considered only to the extent that it is well-reasoned and has 'power to persuade.'" Id.

On appeal, Mr. Hunnicutt argues that the BOP exceeded its statutory authority because the BOP based its eligibility determination on underlying offense conduct, rather than on the conviction itself. This argument misconstrues the BOP's decision, which was based on Mr. Hunnicutt's 371 conviction for conspiracy to use or carry a firearm during and in relation to a drug trafficking offense, and was not based merely on underlying offense conduct, as was the case in Fristoe and Ward. Mr. Hunnicutt does not dispute that the use or carrying a firearm during and in relation to a drug trafficking offense in violation of 924(c)(1) is a crime of violence. See Warren v. Crabtree, 185 F.3d 1018, 1021 (9th Cir. 1999) (BOP properly determined inmates convicted for use or carrying of a firearm in relation to drug trafficking crime categorically ineligible for a sentence reduction); Love v. Tippy, 133 F.3d 1066, 1069 (8th Cir. 1998) (same).

We have held that a 371 conviction for conspiracy to commit a federal crime of violence itself constitutes a "crime of violence," and is, therefore sufficient to support a conviction under 18 U.S.C. 924(c)(1) for use or carrying of a firearm during and in relation to a crime of violence. See United States. v. Brown, 200 F.3d 700, 706 (10th Cir. 1999), cert. denied, 120 S. Ct. 1213 (2000) and 120 S. Ct. 1706 (2000). We based this holding on the fact that "an overt act in furtherance of the object of conspiracy [i]s an element of a conspiracy conviction" under 371. Id.

In order to qualify as a violent crime, a conviction need not involve the actual use of force or violence; rather, it need only involve "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). Because the elements of Mr. Hunnicutt's conspiracy conviction included an overt act in furtherance of the offense of using or carrying a firearm, we conclude that the BOP's interpretation of 3621(e)(2)(B) was reasonable, and that it acted within its statutory authority, in classifying a conviction under 371 for conspiracy to use or carry a firearm during and in relation to a drug trafficking offense as a crime of violence, precluding eligibility under 3621(e)(2)(B).

Mr. Hunnicutt also contends his due process rights were violated because the BOP applied different 3621(e)(2)(B) eligibility criteria upon reconsideration than in its original eligibility determination. He relies on a Ninth Circuit decision which held that unfavorable changes to BOP rules construing 3621(e)(2)(B) cannot be applied...