Muolo v. Quintana, 092309 FED3, 09-1213

Docket Nº:09-1213
Opinion Judge:MCKEE, FISHER, and CHAGARES, Circuit Judges
Party Name:FRANCIS A. MUOLO, Appellant v. WARDEN FRANCISCO QUINTANA.
Judge Panel:Before: MCKEE, FISHER, and CHAGARES, Circuit Judges
Case Date:September 23, 2009
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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FRANCIS A. MUOLO, Appellant

v.

WARDEN FRANCISCO QUINTANA.

No. 09-1213

United States Court of Appeals, Third Circuit

September 23, 2009

NOT PRECEDENTIAL

Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 August 27, 2009

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 08-cv-00099) Magistrate Judge: Honorable Susan Paradise Baxter

Before: MCKEE, FISHER, and CHAGARES, Circuit Judges

OPINION

PER CURIAM

Francis A. Muolo, a federal prisoner, appeals from an order of the United States District Court for the Western District of Pennsylvania denying his habeas corpus petition filed under 28 U.S.C. § 2241, in which he claims that the Federal Bureau of Prisons ("BOP") wrongfully denied him eligibility for early release despite his participation in a substance abuse treatment program. More specifically, Muolo claims that the regulation the BOP applied to deny his eligibility for early release, 28 C.F.R. § 550.58(a)(1)(vi)(B) (2000), is invalid in light of two decisions from the United States Court of Appeals for the Ninth Circuit. We will summarily affirm because Muolo's appeal presents no substantial question. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6.

I.

A.

Under 18 U.S.C. § 3621(e)(2)(B), the BOP may reduce the term of a federal prisoner convicted of a "nonviolent offense" if the prisoner successfully completes a substance abuse treatment program. Congress did not define the statutory term "nonviolent offense." In 1995, the BOP published a regulation, 28 C.F.R. § 550.58, that implemented the statute's "nonviolent offense" criteria by denying early release to inmates whose "current offense is determined to be a crime of violence as defined in 18 U.S.C. § 924(c)(3)," as well as to inmates who had a prior state or federal conviction for homicide, forcible rape, robbery, or aggravated assault. Drug Abuse Treatment Programs: Early Release Consideration, 60 Fed. Reg. 27692, 27695 (May 25, 1995). The BOP also issued a Program Statement further defining "crimes of violence" to include drug trafficking offenses under 21 U.S.C. §§ 841 and 846 if the offender received a two-level sentence enhancement for possessing a dangerous weapon during the commission of the offense. U.S. Dep't of Justice, Fed. Bureau of Prisons, Program Statement No. 5162.02: Definition of Term "Crimes of Violence," § 9 (April 23, 1996). The BOP explained that it considered a drug offense that included the weapons-possession sentencing enhancement to be a "crime of violence" because "possession of a dangerous weapon during the commission of a drug offense poses a substantial risk that force may be used against persons or property." Id.

The Courts of Appeals then divided over the validity of the BOP's definition of "crime of violence." The agency's regulation, 28 C.F.R. § 550.58, relied upon the statutory definition of "crime of violence" in 18 U.S.C. § 924(c), but its Program Statement extended that definition to include drug offenses under 21 U.S.C. §§ 841 and 846 with sentencing enhancements for possession of a dangerous weapon. And those offenses had generally not been regarded by federal courts to be crimes of violence within the meaning of 18 U.S.C. § 924(c). Compare, e.g., Pelissero v. Thompson, 170 F.3d 442, 447 (4th Cir. 1999) (upholding the regulation and Program Statement), with Roussos v. Menifee, 122 F.3d 159, 164 (3d Cir. 1997) (finding the Program Statement invalid). This split among the Circuits caused the BOP to publish an interim regulation in 1997 that attempted to avoid the circuit split and allow uniform application of its denial criteria throughout its institutions. The BOP removed the language from 28 C.F.R. § 550.58 that referenced the statutory definition of crimes of violence. It then made categorical denials of early release "[a]s an exercise of the discretion vested in the Director" of the BOP. Drug Abuse Treatment and Intensive Confinement Center Programs: Early Release Consideration, 62 Fed. Reg. 53690, 53691 (Oct. 15, 1997). The 1997 regulation continued to deny early release to prisoners convicted of drug offenses with sentencing enhancements for the possession of a firearm: "The following categories of inmates are not eligible for early release...

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