Gunderson v. Hood, Civil No. 99-1233-HA.

• Court: United States District Courts. 9th Circuit. United States District Court (Oregon)
• Citation: 123 F.Supp.2d 1219
• Docket Number: Civil No. 99-1233-HA.
• Parties: Gary Lee GUNDERSON, Petitioner, v. Robert A. HOOD, Warden, Respondent.
• Decision Date: 13 December 2000

123 F.Supp.2d 1219 Gary Lee GUNDERSON, Petitioner,
v.
Robert A. HOOD, Warden, Respondent. Civil No. 99-1233-HA. United States District Court, D. Oregon. December 13, 2000.

Stephen R. Sady, Chief Deputy Federal Defender, Portland, OR, for Petitioner.

Kenneth C. Bauman, Assistant U.S. Attorney, Portland, OR, for Respondent.

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OPINION AND ORDER

HAGGERTY, District Judge.

Pending before the court is petitioner's motion for reconsideration of the court's Opinion and Order dated September 19, 2000, which denied his motion to lift the stay on this case and grant his petition for writ of habeas corpus on alternative grounds.¹ Petitioner is an inmate at the Federal Correctional Institution ("FCI") at Sheridan, Oregon and is currently serving a term of incarceration as a felon in possession of ammunition in violation of 18 U.S.C. § 922(g). Petitioner complains that the Bureau of Prisons ("BOP") found him ineligible for a one-year sentence reduction pursuant to 18 U.S.C. § 3621(e)(2)(B), which allows the BOP to grant federal inmates convicted of a nonviolent offense a one-year sentence reduction for the successful completion of a qualified drug-and-alcohol-abuse ("DAP") program. Cort v. Crabtree, 113 F.3d 1081, 1085 (9th Cir. 1997).

The BOP found petitioner ineligible for a sentence reduction because he was convicted under 18 U.S.C. § 922(g) as a felon in possession of ammunition. The BOP regulation governing eligibility, 28 C.F.R. § 550.58, does not specifically exclude inmates convicted of being a felon in possession of ammunition;² however, a BOP program statement does. BOP Program Statement 5162.04 states, "All offenses under 18 U.S.C. § 922(g) shall preclude an inmate from receiving certain Bureau program benefits" including eligibility for a one-year sentence reduction. 18 U.S.C. § 922(g), referenced by the program statement, criminalizes possession of ammunition by a felon as well as possession of a firearm by a felon.³ Thus, by its reference to § 922(g), BOP Program Statement 5162.04 excludes inmates convicted of the offense of felon in possession of ammunition from eligibility for early release.

In his initial motion for relief on alternative grounds, petitioner argued that the program statement is invalid because, in his view, it conflicts with the regulation. In its decision of September 19, 2000, this court found that while 28 C.F.R. § 550.58 does not list "ammunition" by name, nevertheless it encompasses the offense of felon in possession of ammunition. Specifically, the regulation makes ineligible for a sentence reduction those "inmates whose current offense is a felony ... that involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device)." 28 C.F.R. § 550.58 (emphasis added). The court found that ammunition qualifies as "any

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explosive material or explosive device" and a "dangerous weapon" within the meaning of the regulation. Thus, rather than conflicting with the regulation, the program statement clarified the BOP's view that ammunition offenses are excluded by the regulation. The court also found that the program statement was a reasonable interpretation of the statute. In his motion for reconsideration, petitioner argues that the court erred in reaching those conclusions.

1. Ammunition as Explosive Material or a Dangerous Weapon.

First, petitioner argues that "explosive material," as used by 28 C.F.R. § 550.58, has a particular meaning in accordance with federal criminal statutes. 18 U.S.C. § 845(a) specifically excludes "small arms ammunition and components thereof" from the sections of the criminal code governing explosive materials. Respondent argues that based on simple logic, ammunition contains highly explosive material such as gun powder. Respondent also notes that the Department of Transportation regulates the transportation of ammunition because of its explosive propensities. 49 C.F.R. § 173.50 et seq. However, the BOP exclusions are based on the nature of the offense for which the inmate was convicted. As a result, the most relevant definitions of terms in the regulation are those provided by Congress in defining those offenses. 18 U.S.C. § 845(a) specifically excludes "small arms ammunition and components thereof" from the criminal prohibitions on the possession of explosive materials. Accordingly, the court finds that the term "explosive material" as used in 28 C.F.R. § 550.58 does not encompass ammunition.

Second, petitioner argues that "dangerous weapon," as used in the regulation, also has a specific legal meaning that does not include ammunition. He points to the federal sentencing guidelines as support for his argument. Under the sentencing guidelines, "`Dangerous weapon' means an instrument capable of inflicting death or serious bodily injury." USSG § 1B1.1, comment, n. 1 (d). The Ninth Circuit's reasoning in United States v. Smith, 905 F.2d 1296, 1300 (9th Cir.1990), under a previous version of the guidelines, is instructive.⁴ In Smith, the court found that an inoperable gun present during a bank robbery was a dangerous weapon because it could be used as a bludgeon or used to induce fear. The court's reasoning focused on how the gun could be used as a weapon. See id. The court did not consider the gun in its usual sense as a firearm because this particular gun could not be fired.

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