Pelissero v. Thompson

Decision Date03 September 1998
Docket Number97-6221,Nos. 97-6156,s. 97-6156
Citation155 F.3d 470
PartiesRobert Paul PELISSERO, Petitioner-Appellant, v. W.J. THOMPSON, Warden, FCI, Morgantown, WV, Respondent-Appellee. Pamela Armour; Tamara Bayles; Sandra Lewis Cockrell; Wonda Cortes; Marsha Poore Crawford; Mary Kathleen Lobbins; Kim Lovvorn; Diane Mcnabb; Sharon Strauss; Mildred Thompson; Lori Tuttle, Amici Curiae. Aubra S. HAYES, Jr., Petitioner-Appellant, v. FEDERAL BUREAU OF PRISONS; Kathleen M. Hawk, Director of the Bureau of Prisons, Respondents-Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: James R. Fox, Jory & Smith, Elkins, WV, for Appellant. Bill David Burlington, Regional Counsel, Bureau Of Prisons, Butner, NC, for Appellee. ON BRIEF: William D. Wilmoth, U.S. Atty., Daniel W. Dickinson, Jr., Asst. U.S. Atty., Rita R. Valdrini, Asst. U.S. Atty., Wheeling, WV., for Appellee. Pamela Armour, Tamara Bayles, Sandra Lewis Cockrell, Wonda Cortes, Marsha Poore Crawford, Mary Kathleen Lobbins, Kim Lovvorn, Diane McNabb, Sharon Strauss, Mildred Thompson, Lori Tuttle, Amici Curiae Pro Se.

Before WILKINS and NIEMEYER, Circuit Judges, and CHAMBERS, United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge WILKINS joined. Judge CHAMBERS wrote a dissenting opinion.


NIEMEYER, Circuit Judge:

Section 3621(e)(2)(B) of Title 18 of the United States Code provides that the prison terms of prisoners convicted of "nonviolent" offenses may be reduced by the Bureau of Prisons in an amount up to one year as an incentive for the prisoners' successful completion of a residential substance abuse treatment program. Although inmates Robert Pelissero and Aubra Hayes completed the specified substance abuse treatment program, the Bureau of Prisons denied them any reduction of their sentences, relying on its Program Statement No. 5162.02, which specifies that a prisoner convicted of, or whose sentence was enhanced for, possession of a firearm during the commission of a drug offense is convicted of a "crime of violence" and cannot have his sentence reduced under § 3621(e)(2)(B).

In separate petitions for a writ of habeas corpus filed under 28 U.S.C. § 2241, Pelissero and Hayes challenged the validity of Program Statement No. 5162.02, particularly its definition of "nonviolent offense." In each case, the district court upheld the Program Statement and denied the petition. For reasons somewhat different from those given by the district court, we affirm.


As part of the Crime Control Act of 1990, Congress required the Bureau of Prisons to "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). Then in 1994, to provide an incentive to federal prisoners to enroll in and complete the Bureau of Prisons' drug treatment programs, Congress authorized the Bureau to reduce by up to one year the sentence of "a prisoner convicted of a nonviolent offense" who successfully completes a treatment program. 18 U.S.C. § 3621(e)(2)(B). While eligibility for early release under § 3621(e)(2)(B) is open to all prisoners who meet the statutory requirements, the statute expressly vests the Bureau of Prisons with broad discretion to grant or deny sentence reductions to eligible prisoners. See 18 U.S.C. § 3621(e)(2)(B) ("[T]he 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") (emphasis added); see also Downey v. Crabtree, 100 F.3d 662, 670 (9th Cir.1996) ("Section 3621(e)(2)(B) ... reflects unequivocal Congressional intent to leave to the Bureau final decisions regarding whether to grant eligible inmates a sentence reduction following successful completion of a drug treatment program").

To interpret the statute, the Bureau of Prisons issued a regulation in May 1995 defining "nonviolent offense" as the converse of "a crime of violence." See 28 C.F.R. § 550.58 (1995). This 1995 regulation excluded from eligibility for early release under § 3621(e)(2)(B) those inmates whose "current offense is determined to be a crime of violence as defined in 18 U.S.C. § 924(c)(3)." 28 C.F.R. § 550.58 (1995). Section 924(c)(3) of Title 18 in turn defines a crime of violence as any offense that is a felony and that either "has as an element the use, attempted use, or threatened use of physical force against the person or property of another" or "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." In its request for comment, which accompanied the publication of Regulation 550.58, the Bureau of Prisons explained that "[i]nformation contained in the Presentence Investigation Report ordinarily is sufficient to allow staff to determine if the inmate's committed offense meets this definition of crime of violence." 60 Fed.Reg. 27692, 27692 (May 25, 1995).

To further assist case management staff in deciding whether an inmate qualifies for early release under 18 U.S.C. § 3621(e)(2)(B) and under implementing regulation 550.58, the Bureau of Prisons adopted Program Statement No. 5162.02 ("P.S.5162.02") in July 1995. The Program Statement offers an exhaustive list of offenses that the agency considers to be "crimes of violence." Section 7 of the Program Statement provides that "in all cases" a conviction under 18 U.S.C. § 922(g) constitutes a crime of violence. And Section 9 identifies other offenses "that may be crimes of violence depending on the specific offense characteristic assigned." Section 9 expressly provides that a defendant who has been convicted of a drug offense under 21 U.S.C. § 841 and who has received a two-level sentencing enhancement for gun possession has been convicted of a "crime of violence." The Program Statement explains that such possession "poses a substantial risk that force may be used against persons or property."

Because federal cases have held that possession of a firearm by a felon is not a crime of violence under 18 U.S.C. § 924(c), a split has developed among the circuits on the question of whether P.S. 5162.02 is a valid interpretation of the Bureau of Prisons' Regulation 550.58 or whether the Bureau of Prisons is bound by the case law interpreting the definition of "crime of violence" found in 18 U.S.C. § 924(c), which definition the Bureau of Prisons incorporated into its regulation. Compare, e.g., Venegas v. Henman, 126 F.3d 760, 763 (5th Cir.1997) (upholding P.S. 5162.02 as proper exercise of Bureau of Prisons' discretion "to determine what offenses, in context, are violent for purposes of Section 3621(e) and, therefore, not appropriate for exposure to the incentive of early release"), with Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir.1998) (Bureau of Prisons may not categorically deny early release under Section 3621(e)(2)(B) to inmates who receive two-level sentencing enhancement for firearm possession); Davis v. Crabtree, 109 F.3d 566, 570 (9th Cir.1997) (Bureau of Prisons "may not interpret the term 'nonviolent offense' to exclude the offense of felon in possession of a firearm").

To address the split among the circuits and clarify how the Bureau of Prisons intends to exercise its discretion granted under 18 U.S.C. § 3621(e)(2)(B), the Bureau adopted a revised Regulation 550.58 in October 1997. The revised regulation abandons its incorporation of the crime-of-violence definition from 18 U.S.C. § 924(c) and restates the Bureau's position held in P.S. 5162.02. It provides that an inmate who has been sentenced "for a nonviolent offense" and who "successfully completes a residential drug abuse treatment program during his or her current commitment may be eligible, in accordance with paragraph (a) of this section, for early release by a period not to exceed 12 months." 28 C.F.R. § 550.58 (1997) (emphasis added). And paragraph (a) excludes those inmates from eligibility for early release "whose current offense is a felony" that "involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives." 28 C.F.R. § 550.58(a)(1)(vi)(B) (1997). This 1997 revised regulation was issued after the notices of appeal in these cases were filed.


Pelissero pled guilty to conspiracy to distribute and possess with intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). On August 23, 1991, the district court in the Western District of Pennsylvania sentenced him to 100 months imprisonment. This sentence included a two-level enhancement imposed pursuant to § 2D1.1 of the United States Sentencing Guidelines for possessing a firearm during the commission of these offenses. Hayes pled guilty to distribution of over five grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and to possession of a handgun by a convicted felon, in violation of 18 U.S.C. § 922(g). On March 2, 1993, the district court in the Southern District of Ohio sentenced Hayes to two concurrent 84-month sentences of imprisonment. Both Pelissero and Hayes are currently incarcerated at the Federal Correctional Institution in Morgantown, West Virginia.

Pelissero completed a drug abuse treatment program conforming to the requirements of 18 U.S.C. § 3621(b) in May 1993, and Hayes completed a similar program in August 1995. Both, however, were denied reduction of their sentences under 18 U.S.C. § 3621(e)(2)(B) because they did not qualify for the reduction as that statute was interpreted by Bureau of Prisons' Program Statement No. 5162.02(7) & (9). Because Pelissero's sentence had been enhanced for possession of a firearm in connection with a drug offense and Hayes had been convicted of possession of a firearm by a convicted felon, both...

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