Cook v. Riley

• Decision Date: 14 April 2000
• Docket Number: No. 98-6273,98-6273
• Citation: 208 F.3d 1314
• Parties: (11th Cir. 2000) Harry K. COOK, Petitioner-Appellant, v. Ron RILEY, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1314

208 F.3d 1314 (11th Cir. 2000)

Harry K. COOK, Petitioner-Appellant, v. Ron RILEY, Warden, Respondent-Appellee.

No. 98-6273.

United States Court of Appeals Eleventh Circuit.

April 14, 2000.

[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Alabama.

Before CARNES, BARKETT and MARCUS, Circuit Judges.

CARNES, Circuit Judge:

Section 3621(e)(2)(B) of Title 18 provides that the Bureau of Prisons ("BOP") may reduce by as much as one year the length of a prisoner's sentence for successful completion of a residential substance abuse treatment program. The statute limits the BOP's authority to do that to cases involving prisoners convicted of a "nonviolent offense." Through a regulation and program statement, the BOP has interpreted "nonviolent offense" as used in that statute to exclude the 18 U.S.C. 922(g) crime of being a felon in possession of a firearm.

The issue in this appeal is whether the BOP's regulation and program statement classifying the 922(g) crime as outside the scope of "nonviolent offense" as that term is used in 3621(e)(2)(B) is a permissible exercise of administrative discretion, and if so, whether it is constitutionally permissible. For the reasons that follow, we answer both questions in the affirmative.

I. PROCEDURAL BACKGROUND

Harry K. Cook pleaded guilty to the charge of possession of a firearm by a felon, and he was sentenced to 46 months imprisonment to be followed by 3 years of supervised release. While serving his sentence at the Federal Prison Camp in Talladega, Alabama, Cook completed a 500-hour "Comprehensive Drug Abuse Treatment Program" and applied for a sentence reduction under 18 U.S.C. 3621(e)(2)(B). The BOP refused to consider reducing his sentence, because under its applicable regulation and program statement, Cook's 922(g) conviction rendered him ineligible for such a reduction.¹

Cook then filed a 28 U.S.C. 2241 habeas corpus petition in district court.² He contended that the BOP had impermissibly interpreted "nonviolent offense" to exclude the crime of possession of a firearm by a felon. Cook also contended that the BOP's refusal to consider him for a sentence reduction based on his conviction for the 922(g) offense violated the Due Process and Equal Protection Clauses of the United States Constitution. The district court denied his habeas petition, and Cook appealed.³ We review de novo the district court's denial of Cook's habeas petition. See Chateloin v. Singletary, 89 F.3d 749, 752 (11th Cir.1996).

II. DISCUSSION

Section 3621(e)(2)(B) of Title 18 grants the BOP discretion to reduce by up to one year the sentence of a prisoner who successfully completes a substance abuse treatment program, but makes that reduction available only to "a prisoner convicted of a nonviolent offense." Because the statute does not define "nonviolent offense," it fell to the BOP to define that term in keeping with the statutory purposes.

The BOP's first step was Regulation 550.58, see 28 C.F.R. 550.58 (1995), the applicable version of which was adopted in 1995.⁴ That regulation defines "nonviolent offense" as the converse of "crime of violence," as that term is defined in 18 U.S.C. 924(c)(3).⁵ See id. In other words, the regulation says that whatever is not a "crime of violence" as that term is defined in 924(c)(3) is a "nonviolent offense" under 3621(e)(2)(B).

To insure that it would uniformly apply its regulation interpreting "nonviolent offense," as that term is used in 3621(e)(2)(B), the BOP formalized an interpretation of the regulation itself in a program statement. See Parsons v. Pitzer, 149 F.3d 734, 737 (7th Cir.1998). In contrast to a substantive rule promulgated by an agency, a BOP program statement is "an interpretative statement of position circulated within [the] agency that serves to provide administrative guidance in applying a then existing published rule." Pelissero v. Thompson, 170 F.3d 442, 447 (4th Cir.1999). In July 1995, the BOP issued Program Statement 5162.02 ("P.S.5162.02"), which contained a comprehensive list of offenses that the BOP considered to be "crime[s] of violence" under Regulation 550.58 (1995).⁶ See BOP Program Statement 5162.02 (July 24, 1995). In other words, the BOP interpreted (in the program statement) its own interpretation (in the regulation) of the statute. One offense listed in Section 7 of P.S. 5162.02 as a "crime of violence" per se is 18 U.S.C. 922(g)-possession of a firearm by a felon. See id. 5162.02(7) (section titled "Criminal Offenses That Are Crimes Of Violence In All Cases").

A.Validity of the BOP's Interpretation of "Nonviolent Offense"

Cook contends that classifying a 922(g) offense as a "crime of violence"-which prevents that offense from being a "nonviolent offense" and excludes those convicted of it from consideration of a sentence reduction-conflicts with the plain language of 924(c)(3), and thus, also conflicts with the plain language of 3621(e)(2)(B). He further maintains the BOP's categorical treatment of 922(g) as a "crime of violence" is inconsistent with judicial treatment of that offense, and more particularly, is inconsistent with the law of this Circuit. See United States v. Flennory, 145 F.3d 1264, 1268 (11th Cir.1998) (stating that possession of a firearm by a felon is not a "crime of violence" as defined in 924(c)(3) for purposes of the mandatory minimum sentences in 924(c)(1)) (citing United States v. Canon, 993 F.2d 1439, 1441 (9th Cir.1993)); cf. United States v. Oliver, 20 F.3d 415, 418 (11th Cir.1994) (holding that possession of a firearm by a felon is not a "violent felony" as defined in 924(e) and cannot be used to enhance the sentence of a defendant as an armed career criminal under U.S.S.G. 4B1.4).

We begin our discussion of these contentions with an explanation of why our prior case law interpreting "crime of violence" under 924(c)(3) is not dispositive of the present issue. In United States v. Flennory, this Court stated in passing that 922(g) was not a "crime of violence" as defined in 924(c)(3). See Flennory, 145 F.3d at 1268. However, in that decision we were interpreting "crime of violence" with respect to 924(c)(1), which, among other things, "imposes a mandatory five-year sentence for using or carrying a firearm 'in relation to any crime of violence or drug trafficking crime.' " Id. at 1267 (quoting 18 U.S.C. 924(c)(1)) (emphasis omitted). Congress did not merely use the term "crime of violence" in the statute, but also provided a definition for the term as used in that statute. See 18 U.S.C. 924(c)(3). Some interpretation of the defined term was still required, though, and in interpreting 924(c)(3) in Flennory, this Court was engaging in the routine judicial task of interpreting statutes that apply to one of the traditional judicial functions, sentencing in criminal cases. By contrast, 3621(e)(2)(B) involves the traditional executive function of commuting a sentence that is already being served, and the statute entrusts that function to the BOP, not to the courts. Thus, under 3621(e)(2)(B) the courts have a different, and more limited, role in regard to the interpretation and application of statutory terms than they do under 924(c)(1).

The absence of a statutory definition of "nonviolent offense" in 3621(e)(2)(B) indicates that Congress "intended the BOP to determine those offenses that qualify as nonviolent offenses and those offenses to be excluded." Parsons, 149 F.3d at 737; see also H.R.Rep. No. 103-320, 103rd Cong., 1st Sess. (1993) ("In effect, [ 3621(e)(2)(B) ] authorizes the [BOP] to shorten by up to one year the prison term of a prisoner who has successfully completed a treatment program, based on criteria to be established and uniformly applied by the [BOP].")(emphasis added). Even if a prisoner is deemed statutorily eligible for the sentence reduction, the decision about whether to reduce his sentence remains solely within the discretion of the BOP. See 18 U.S.C. 3621(e)(2)(B) (providing that the BOP "may" grant a sentence reduction to a prisoner who successfully completes a substance abuse treatment program). And that decision is not subject to judicial review. See 18 U.S.C. 3625; see also Ward v. Booker, 202 F.3d 1249, 1254 n. 5 (10th Cir.2000); Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir.1998) (stating that "it is apparent that 3625 precludes judicial review of agency adjudicative decisions but not of rulemaking decisions"). As the Fourth Circuit has explained, such expansive discretion under 3621(e)(2)(B) is necessary to permit the BOP to balance the dual objectives expressed in the statute: encouraging prisoners to complete substance abuse treatment programs and preventing the early release of potentially violent felons. See Pelissero, 170 F.3d at 447.

In determining which prisoners are potentially violent and therefore unsuitable for early release, the BOP looked to the definition of "crime of violence" in 924(c)(3) to guide its discretion, but elected not to tie its hands with all of the interpretive case law that had arisen under that statute. The BOP was free to do that. After all, it could have simply parroted the language of 924(c)(3) in Regulation 550.58 without specifically referring to the statute. The fact that the BOP used a shorthand reference to its chosen definitional standard for "nonviolent offense" does not mean it intended to bind itself to the past or future decisional law construing 924(c)(3). So, while judicial decisions concluding that 922(g) is not a "crime of violence" or "violent felony" under statutes other than 3621(e)(2)(B) may offer guidance to the BOP, they do not compel it to reach the same conclusion when it is administering the sentence reduction incentive program provided by that statute. In administrative law terms, Congress intended the "gap" of what constitutes a "nonviolent offense" to be filled by the BOP, not by the courts. Courts have a role, to be sure, but...