Hicks v. Brooks

• Decision Date: 24 November 1998
• Docket Number: No. Civ.A. 97-D-785.,Civ.A. 97-D-785.
• Citation: 28 F.Supp.2d 1268
• Parties: Kenneth E. HICKS, Petitioner, v. Joseph M. BROOKS, Respondent.
• Court: U.S. District Court — District of Colorado

28 F.Supp.2d 1268

Kenneth E. HICKS, Petitioner, v. Joseph M. BROOKS, Respondent.

No. Civ.A. 97-D-785.

United States District Court, D. Colorado.

November 24, 1998.

Kenneth E. Hicks, Littleton, CO, for Petitioner.

Mark S. Pestal, Assistant U.S. Attorney, Denver, CO, for Respondent.

MEMORANDUM OPINION AND ORDER

DANIEL, District Judge.

This matter is before the Court on Magistrate Judge Richard M. Borchers' October 15, 1997, recommendation that the Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 by a Person in Federal Custody submitted pro se by the petitioner Kenneth E. Hicks be granted, on the respondent's October 30, 1997, objections to that recommendation, and on the November 12, 1997, notice of supplemental authority the respondent submitted as an addition to the October 30 objections. Mr. Hicks is a prisoner in the custody of the United States Bureau of Prisons (BOP). He currently is incarcerated at the Federal Correctional Institution at Englewood, Colorado.

I must construe liberally the habeas corpus petition because Mr. Hicks is representing himself. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Although I must construe the petition liberally, I should not be the pro se litigant's advocate. Hall, 935 F.2d at 1110. I have reviewed the file in the instant action and have determined that the habeas corpus petition must be granted for the reasons stated below.

I. Background

On September 9, 1992, a jury convicted Mr. Hicks in the United States District Court for the District of Wyoming of conspiracy to distribute marijuana pursuant to 21 U.S.C. § 846 (Supp.1998). After a subsequent drug quantity hearing, the district court found that Mr. Hicks was responsible for the distribution of 350 to 700 pounds of marijuana and sentenced him on January 7, 1993, to sixty-six months of imprisonment and to four years of supervised release. The calculation of Mr. Hicks' sentence included a two-level enhancement pursuant to U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (Supp.1998) for possession of a weapon during commission of the crime. His conviction was upheld on direct appeal. See United States v. Hicks, No. 93-8002, 1994 WL 628986 (10th Cir. Nov.10, 1994) (unpublished).

In the instant habeas corpus petition, Mr. Hicks alleges that the BOP is denying him "eligibility to attend" a residential drug treatment program and a sentence reduction pursuant to 18 U.S.C. § 3621(e) (Supp.1998) if he successfully completes the program because the BOP has determined that he was convicted of a crime of violence. See Memorandum in Support of Writ of Habeas Corpus at 4. The BOP's determination that Mr. Hicks was convicted of a crime of violence is based solely on the sentencing enhancement for possession of a weapon. Mr. Hicks contends that he was convicted of a nonviolent offense. Therefore, he argues, he should be allowed to enter a residential drug treatment program and should be considered eligible for a one-year reduction in sentence upon the successful completion of the program. In his response to the petition, the respondent maintains that Mr. Hicks was convicted of a crime of violence and is not eligible for a one-year reduction in sentence based upon the two-level enhancement for possession of a weapon at the time of his drug-related offense.

II. Analysis

Section 32001 of the Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA), codified at 18 U.S.C. § 3621(e)(2)(B), provides as follows:

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). Section 3621(e)(2)(B) does not define nonviolent offense. After the enactment of VCCLEA, the BOP established a regulation, 28 C.F.R. § 550.58 (1995), that disqualified from consideration under § 3621(e)(2)(B) inmates whose current offense is determined to be a crime of violence as that term is defined in 18 U.S.C. § 924(c)(3). See Fristoe v. Thompson, 144 F.3d 627, 629 (10th Cir.1998). Section 924(c)(3) then and currently defines the term "crime of violence" as:

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) (Supp.1998). Thus, the BOP did not define "nonviolent" but rather defined "crime of violence" by reference to § 924(c)(3) of the criminal code. The BOP then adopted Program Statement 5162.02 for use by its officers and employees in determining what constitutes a "crime of violence."

In section 9 of Program Statement 5162.02, the BOP provides that a conviction, like Mr. Hicks', for an offense under 21 U.S.C. § 846 should be considered a crime of violence if the sentencing court increased the base level for the offense due to possession of a weapon during the commission of the crime. Under the BOP's regulation and its program statement, Mr. Hicks' crime was not a "nonviolent offense" as required by 18 U.S.C. § 3621(e)(2)(B) because of the sentencing enhancement. Therefore, the BOP determined that he was ineligible for the sentence reduction.

In his recommendation, the magistrate judge finds Roussos v. Menifee, 122 F.3d 159 (3d Cir.1997), to be persuasive authority in deciding the case at bar. In Roussos, the petitioner was convicted of conspiracy to distribute narcotics in violation of 21 U.S.C. § 846. During a search of the petitioner's residence, weapons were found. The trial court treated the weapons as connected with the drug offense and imposed a two-level sentence enhancement for possession of a firearm during a drug trafficking offense. After the petitioner was placed in BOP custody, he completed a drug treatment program in order to obtain a one-year sentence reduction. The BOP, however, denied him eligibility for the sentence reduction because of his two-level sentence enhancement. Petitioner then sought to overturn the BOP's decision through court action.

The United States Court of Appeals for the Third Circuit, looking to the decision in Downey v. Crabtree, 100 F.3d 662 (9th Cir .1996), held that:

Roussos, like Downey, has been denied eligibility for sentence reduction under § 3621(e)(2)(B) not because his offense has been classified as a "crime of violence" under § 924(c)(3), but based solely on the Program Statement that categorically declares all inmates with two-level sentencing enhancements for firearm possession ineligible. By ignoring the offense of conviction and looking only to sentencing factors, the BOP has attempted to transmogrify a "nonviolent offense" into a "crime of violence." In other words, the BOP converted a nonviolent crime into a violent one by means of a Program Statement that is inconsistent with the language of the statute, and its own regulations. More specifically, under the rationale of Downey, we find the BOP's interpretation of a nonviolent offense in the Program Statement to be in conflict with both 18 U.S.C. § 3621(e)(2)(B) and 28 C.F.R. § 550.58 and therefore erroneous.

Roussos, 122 F.3d at 163.

The magistrate judge agrees with the rationale of Roussos. He points out that Congress specifically provided that a one-year reduction is available to a prisoner "convicted of a nonviolent offense." See 18 U.S.C. § 3621(e)(2)(B). He notes that Mr. Hicks was not convicted of a violent offense.

The magistrate judge recommends that the habeas corpus petition of Mr. Hicks be granted to the extent that the respondent be directed to consider Mr. Hicks for entrance into a residential drug treatment program and to grant him a one-year sentence reduction if he successfully completes the program. The magistrate judge further recommends that I enter an order prohibiting the respondent from denying Mr. Hicks entrance into the program and from denying him a one-year sentence reduction solely on the basis of the erroneous interpretation that Mr. Hicks was convicted of a violent offense.

After the magistrate judge issued his recommendation, this Court and the United States Court of Appeals for the Tenth Circuit issued decisions that support the magistrate judge's recommendation that Mr. Hicks should be considered for entrance into the program and that he should be considered for a sentence reduction if he successfully completes the program. In November 1997, in a factually similar case, Judge Zita L. Weinshienk of this Court held that the BOP cannot adopt a program statement denying a one-year reduction in sentence to a prisoner convicted of committing a nonviolent crime whose sentence was enhanced for the possession of weapons. See Sisneros v. Booker, 981 F.Supp. 1374, 1375-77 (D.Colo.1997).¹

In April 1998, the United States Court of Appeals for the Tenth Circuit, citing to Roussos, Downey, and Sisneros, held that the BOP may not categorically exclude from consideration for early release upon completion of a drug treatment program those inmates convicted of nonviolent offenses whose sentences were enhanced for possession of a weapon. See Fristoe, 144 F.3d at 631. Although Fristoe is controlling authority in this Court, I must examine its applicability in the instant action because the relevant BOP regulation has been revised and because Fristoe did not consider the revised regulation.

In October 1997, the BOP revised 28 C.F.R. § 550.58 to delete its incorporation of the crime-of-violence definition from 18 U.S.C. § 924(c)(3). The current regulation now provides in pertinent part:

(1) As an exercise of the discretion vested in the Director of the Federal Bureau of Prisons,...