Downey v. Crabtree

Decision Date18 September 1996
Docket NumberNo. 96-35471,PETITIONER-APPELLEE,RESPONDENT-APPELLANT,96-35471
Citation100 F.3d 662
PartiesBRUCE DOWNEY,, v. JOSEPH CRABTREE, WARDEN, FEDERAL CORRECTIONAL INSTITUTION,
CourtU.S. Court of Appeals — Ninth Circuit

Thomas M. Gannon, United States Department of Justice, Washington, D.C., for the respondent-appellant.

Stephen R. Sady, Chief Deputy Federal Public Defender, and Wendy R. Willis, Assistant Federal Public Defender, Portland, Oregon, for the petitioner-appellee.

Appeal from the United States District Court for the District of Oregon, Ancer L. Haggerty, District Judge, Presiding. D.C. No. CV-95-01801-ALH.

Before: Ruggero J. Aldisert,* Harry Pregerson, Thomas G. Nelson, Circuit Judges.

ALDISERT, Circuit Judge.

This appeal by Joseph H. Crabtree, warden of the Federal Correctional Institution, Sheridan, Oregon, requires us to decide if the federal Bureau of Prisons properly defined "convicted of a nonviolent offense" as set forth in 18 U.S.C. 3621(e)(2)(B) of the Violent Crime Control and Law Enforcement Act of 1994. Such a determination is necessary to review whether the district court properly held that Petitioner Bruce Downey, a federal prisoner, is entitled to be considered by the Bureau of Prisons for a sentence reduction as authorized by Congress based upon his completion of a drug-treatment program while incarcerated. The district court disagreed with the Bureau's interpretation of 3621 and granted Downey's petition for a writ of habeas under 22 U.S.C. 2241. The warden appeals that decision.

The district court held that Downey successfully completed a residential drug-abuse treatment program, received the requisite certificate and was, therefore, eligible for a sentence reduction of up to one year. The court decided the Bureau of Prisons' determination that Downey was convicted of a "crime of violence" and, thus, ineligible for a sentence reduction was contrary to governing case law and directed the Bureau to grant Downey a one-year sentence reduction for his completion of the treatment program.

In administering the sentence-reduction provisions authorized by Congress, the Bureau categorically rules that a sentence enhancement for firearms use or possession automatically converts a predicate offense to a crime of violence. Sentence reductions authorized under 3621(e)(2)(B) are denied irrespective of whether the predicate offense itself is considered nonviolent. This appeal requires us to decide several separate, but related, issues: whether the Bureau has exclusive power to interpret the governing statute; if not, whether its interpretation of the statutory language "convicted of a nonviolent offense" is congruent with decisions of this court and those of our sister circuits; and, if not, whether a federal court has the power to grant habeas corpus relief in this case or is required to remand to the Bureau for reconsideration in light of our interpretation of the law.

We review de novo a district court's decision to grant or deny a petition for writ of habeas corpus. Weston v. Kernan, 50 F.3d 633, 636 (9th Cir.), cert. denied, 133 L. Ed. 2d 247, 116 S. Ct. 351 (1995); Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir. 1991). The district court had subject matter jurisdiction under 28 U.S.C. 2241(a), (c)(3), and 1331. We have jurisdiction under 28 U.S.C. 1291. The appeal was timely filed pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure.

I.

Bruce Downey entered a guilty plea in the District of Oregon on an indictment charging him with violation of federal drug laws. At sentencing, he received a sentence enhancement because firearms were found at the location where he was arrested for the illegal narcotics operation. At the time of his arrest, police seized firearms, 150.26 grams of methamphetamine and $9,385 in cash from the residence at which he was located. Downey was eventually indicted under federal law for possession of more than 100 grams of methamphetamine in violation of 21 U.S.C. 841(a)(1); it is that specific offense to which he pleaded guilty and for which he was subsequently convicted. On January 14, 1991, he was sentenced to imprisonment for 92 months and four years of supervised release. The district court applied a two-level sentence enhancement authorized under the United States Sentencing Guidelines for offenses involving drugs if a dangerous weapon was possessed. U.S.S.G. 2D1.1(b)(1)(1995).

While in federal custody, Downey completed the Bureau's 500-hour substance-abuse treatment program. Such programs are offered pursuant to congressional enactment, providing:

The Bureau shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse.

18 U.S.C. 3621(b). He received his certificate of successful completion of the treatment program on February 3, 1995, and subsequently requested the Bureau to reduce his sentence as authorized by Congress in the Violent Crime Control and Law Enforcement Act of 1994. The Bureau may reduce prisoners' sentences consistent with that Act, which provides in relevant part:

(2) Incentive for prisoners' successful completion of treatment program. -

* * *

(B) Period of custody. - The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a 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).

On October 4, 1995, the Bureau denied Downey eligibility for a sentence reduction, a denial based on the Bureau's categorical exclusion from consideration for sentence reduction of inmates who, when sentenced, received a base offense-level enhancement under the Sentencing Guidelines for possession of a dangerous weapon. U.S.S.G. 2D1.1(b)(1). It bears repetition that Downey was convicted under 21 U.S.C. 841(a)(1) for possession of methamphetamine, not for possession of firearms under 924(c). The sentencing Judge applied a two-point sentence enhancement authorized in 2D1.1(b)(1) for the firearms seized from the residence where Downey and the methamphetamine were found.

Downey petitioned the district court for a writ of habeas corpus, challenging the Bureau's denial of his eligibility for a sentence reduction. Addressing only the 3621 claim, the court first concluded that Downey was not convicted of a crime of violence and then ordered the Bureau to give him a one-year sentence reduction. Thus, the court granted Downey's Petition for Writ of Habeas Corpus. Downey v. Crabtree, 923 F. Supp. 164, 165 (D. Or. 1996). This appeal by the government followed.

II.

Our primary task is to construe the phrase "convicted of a nonviolent offense" as set forth in 18 U.S.C. 3621(e)(2)(B). The statute does not define the term.

The Bureau of Prisons promulgated certain Bureau Program Statements ("BOP P.S.") to assist its staff in interpreting the statute:

6.1 [ Consideration for early release 550.58. 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,. . ., unless the inmate is an INS detainee, . . ., or unless the inmate's current offense is determined to be a crime of violence as defined in 18 U.S.C. [ ] 924 (c)(3),

. . . .

BOP P.S. 5330.10 Drug Abuse Programs Manual, Inmate (May 25, 1995); ER 76.

For sentencing purposes, 18 U.S.C. 924(c)(3) (1984) ("Penalties") defines the term "crime of violence" as:

an offense that is a felony and -

(A) has 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.

BOP P.S. 5162.02, Definitions of "Crimes of Violence" (July 24, 1995), ER 89 (quoting 18 U.S.C. 924(c)(3) (1984).)

Under the BOP P.S. 5162.02 framework, the crime for which Downey was convicted, 21 U.S.C. 841(a) (Controlled Substances Act), is categorized among the criminal offenses that "may" be crimes of violence "depending on the specific offense characteristic assigned." BOP P.S. 3162.02 (9)(c); ER 93, 95. Section 924 (penalties for firearms violations) is similarly categorized as a criminal offense that "may" be a crime of violence "depending on a variety of factors." BOP P.S. 5162.02 (10)(c); ER 95-96. For such crimes, the Bureau looks to the presentence investigation report for guidance on whether to define an offense as violent or nonviolent.

For crimes listed in BOP P.S. 3162.02, section "(9)", which includes Downey's crime of conviction, the Bureau examines the "Specific Offense Characteristics" in the presentencing report to ascertain whether the district court found the offense involved violence. In the absence of any indication of the district court's findings on the violence question in the presentence investigation report, the Bureau's case management staff will examine the Sentencing Guidelines applied to the particular case to determine whether the sentencing court found the offense involved the use of force. BOP P.S. 5162.02 (9); ER 93. The Bureau categorically denies early-release credit for inmates who are convicted under 841(a) if they also receive a sentence enhancement for possession of firearms. Downey is an example.

An analysis of the statutory language, the Bureau's policy statements and the categorical framework utilized to implement the sentence-reduction plan for inmates who complete a treatment program discloses the following seeds of controversy:

The controlling statute speaks in terms of "convicted of a nonviolent offense."

The Bureau's policy statements address a "crime of violence," a term that does not appear in the relevant statute, 3621(e)(2)(...

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