Miller v. U.S., Civil Action No. 96-0220 (PLF).

• Decision Date: 16 May 1997
• Docket Number: Civil Action No. 96-0220 (PLF).
• Citation: 964 F.Supp. 15
• Parties: William F. MILLER, Plaintiff, v. UNITED STATES, et al., Defendants.
• Court: U.S. District Court — District of Columbia

964 F.Supp. 15

William F. MILLER, Plaintiff, v. UNITED STATES, et al., Defendants.

Civil Action No. 96-0220 (PLF).

United States District Court, District of Columbia.

May 16, 1997.

Sandra Lee Brown, David Patrick Durbin and James Francis Jordan, Jordan Coyne & Savits, Washington, DC, for plaintiff.

William Mark Nebeker, Assistant U.S. Attorney, Washington, DC, for defendant.

OPINION

PAUL L. FRIEDMAN, District Judge.

William F. Miller, who is presently incarcerated, brings this civil rights action under 42 U.S.C. § 1983 and the Administrative Procedure Act, 5 U.S.C. § 553 et seq. He alleges that the Federal Bureau of Prisons has violated his constitutional and statutory rights by its restrictive interpretation of 18 U.S.C. § 3621(e)(2)(B) which permits a one-year sentence reduction for nonviolent offenders who successfully complete a substance abuse treatment program. Plaintiff seeks declaratory and injunctive relief and damages. Defendants have moved to dismiss.

I. BACKGROUND

Plaintiff pleaded guilty in the United States District Court for the District of New Mexico to possession with intent to distribute less than 50 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D), and to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). He was sentenced to 46 months' imprisonment. On March 21, 1997, plaintiff successfully completed a 500 hour substance abuse treatment program.¹ The Bureau of Prisons has determined, however, that plaintiff is ineligible for early release under 18 U.S.C. § 3621(e)(2)(B) because he is not a "nonviolent offender" under BOP Program Statement 5162.02 ("P.S. 5162.02") by virtue of his plea of guilty to a violation of 18 U.S.C. § 922(g).²

II. DISCUSSION

This case presents the issue of whether the BOP exceeded its authority when it included the "felon in possession" offense of 18 U.S.C. § 922(g) in its definition of a violent crime for the purposes of applying 18 U.S.C. § 3621(e)(2)(B). The Ninth Circuit recently rejected the BOP's interpretation of Section 3621(e) based on its treatment of gun possession as a violent offense. See Downey v. Crabtree, 100 F.3d 662, 667-68 (9th Cir.1996). The government has provided copies of unpublished decisions by several district courts that reached the opposite conclusion and have upheld the BOP's treatment of a felon-in-possession conviction as a violent offense. See Fonner v. Thompson, C.A. No. 96-0026, Slip Op. at 4 (N.D.W.Va. Jan. 29, 1997); Litman v. U.S. Bureau of Prisons, C.A. No. 96-1207, Slip Op. at 8-9 (D.N.J. July 31, 1996); Sorrells v. U.S. Bureau of Prisons, C.A. No. 96-0155, Slip Op. at 2 (W.D. Tex. June 10, 1996).³

18 U.S.C. § 3621(e)(2)(B) was passed as part of the Violent Crime Control and Law Enforcement Act of 1994 ("VCCLEA"), Pub.L. No. 103-322, 108 Stat. 1796, 1897 (1994). It provides:

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). VCCLEA does not define the term "nonviolent offense" for the purposes of this section, but it refers in a nearby section to "a crime of violence (as defined in section 924(c)(3))." See 18 U.S.C. § 4042(b)(3).⁴ Both sides assume that a nonviolent offense is the converse of a crime of violence. See Defs.' Mot. at 6; Pl.'s Opp'n at 9. Indeed, the BOP expressly incorporates the "crime of violence" definition of 18 U.S.C. § 924(c)(3) in its regulations governing consideration for early release. See 28 C.F.R. § 550.58. See also Downey v. Crabtree, 100 F.3d 662, 666-68 (9th Cir.1996) (treating "non-violent offense" as the converse of "crime of violence"). Defendants maintain, however, that the BOP is not strictly constrained by the definition of "crime of violence" in Section 924(c)(3) but can expand upon it where it sees fit.⁵

The central question is whether the offense to which plaintiff pleaded guilty — being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) — is a crime of violence or a nonviolent offense. 18 U.S.C. § 924(c)(3) defines "crime of violence" for the purpose of imposing penalties for firearms offenses 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). P.S. 5162.02, entitled "Definition of Term `Crimes of Violence,'" incorporates this definition, but then goes further and enumerates various criminal code sections the violation of which the BOP treats as violent crimes as a matter of policy. P.S. 5162.02 lists 18 U.S.C. § 922(g), the section under which plaintiff was convicted, as such a crime. In fact it lists it twice, both in Section 7, which defines offenses that are crimes of violence in all cases, and in Section 10, which defines offenses that may be crimes of violence depending on a variety of factors. See P.S. 5162.02 at 3, 11.⁶

Plaintiff argues that every court to have interpreted Section 922(g), including the Supreme Court, has held that the felon-in-possession offense is not a violent offense for the purposes of sentencing. See Stinson v. United States, 508 U.S. 36, 47, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993); Downey v. Crabtree, 100 F.3d at 667; United States v. Talbott, 78 F.3d 1183, 1189 (7th Cir.1996); United States v. Gary, 74 F.3d 304, 316 (1st Cir.1996); United States v. Saffeels, 39 F.3d 833, 834 (8th Cir.1994); United States v. Canon, 993 F.2d 1439, 1441 (9th Cir.1993) (Section 922(g) is not a crime of violence for the purposes of the imposition of penalties under 18 U.S.C. § 924(c)(1)). Defendants maintain that the interpretation of Section 922(g) as an initial sentencing matter — either under the Sentencing Guidelines or under the sentencing enhancement provisions of 18 U.S.C. § 924 — should not preclude the BOP from exercising its considerable authority to interpret Section 922(g) as it sees fit in the context of a reduction of the period of incarceration for an individual already in custody.

The Court agrees with defendants that the fact that the Sentencing Guidelines treat Section 922(g) as a nonviolent crime is not dispositive. In 1992, the Sentencing Commission amended the Guidelines to make clear that Section 922(g) is not a crime of violence for guideline sentencing purposes and cannot serve as the predicate crime for a designation of "career offender" under Section 4B1.1 of the United States Sentencing Guidelines. See U.S.S.G. § 4B1.2, comment. (n.2).⁷ The Supreme Court, in turn, held that the application note is binding on courts for the purposes of sentencing under the Guidelines. Stinson v. United States, 508 U.S. at 47. That holding, of course, is not the same as a global decision that the offense proscribed by Section 922(g) itself is a nonviolent crime for all purposes. Nor does the fact that the Sentencing Commission treats Section 922(g) as a nonviolent crime necessarily mean that either the BOP or the courts must do so in other circumstances. See Downey v. Crabtree, 100 F.3d at 666 ("Although deference is extended to the Bureau's interpretation of `convicted of a nonviolent offense' under § 3621(e)(2)(B), the federal courts have ultimate responsibility to determine which offenses are violent and nonviolent under the Sentencing Guidelines.").

As a matter of statutory interpretation, the Court concludes that Section 922(g) is not a crime of violence as defined by either Subsection (A) or (B) of 18 U.S.C. § 924(c)(3). Section 924(c)(3)(A) defines a crime of violence as an offense that has as an element the "use" of physical force, either actual, attempted or threatened. Section 922(g) by its terms establishes only that an individual who has previously been convicted of a felony "possessed" a firearm.⁸ The Supreme Court has made it abundantly clear in the context of gun offenses that "`use' means more than mere possession." Bailey v. United States, ___ U.S. ___, ___, 116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995). It means "active employment of the firearm by the defendant...." Id. at 505. Indeed, the Court expressly distinguished Section 922(g) as a mere "possession" offense from Section 924(c)(1), a "use" offense. Id. at 506. See also United States v. Canon, 993 F.2d at 1441.

Section 924(c)(3)(B) applies only where the offense "by its nature, involves a substantial risk that physical force ... may be used in the course of committing the offense." This language also does not cover the felon-in-possession offense. No violence need be used "in the course of committing" this offense, that is, in the coming into possession of the weapon. See United States v. Doe, 960 F.2d 221, 225 (1st Cir.1992). As then-Chief Judge Breyer reasoned, "simple possession, even by a felon, takes place in a variety of ways (e.g., in a closet, in a store room, in car, in a pocket) many, perhaps most, of which do not involve likely accompanying violence." Id. at 225.

Furthermore, while the Sentencing Guidelines are not dispositive, the fact that they treat Section 922(g) as a nonviolent crime is significant. As a matter of statutory interpretation, the Supreme Court in Stinson held that the Guidelines' application note excluding Section 922(g) from the definition of crimes of violence "does not run afoul off ... a federal statute." Stinson v. United States, 508 U.S. at 47. The First, Seventh and Ninth Circuits have all concluded that being a felon in possession of a firearm is not a violent crime under the Sentencing Guidelines or, in the case of the First and Ninth Circuits, in determining penalties under 18 U.S.C. § 924. See Downey v. Crabtree...