Roussos v. Menifee

• Decision Date: 18 July 1997
• Docket Number: No. 97-7011,97-7011
• Citation: 122 F.3d 159
• Parties: Victor M. ROUSSOS, Appellant, v. Frederick MENIFEE, Warden, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 159

122 F.3d 159

Victor M. ROUSSOS, Appellant, v. Frederick MENIFEE, Warden, Appellee.

No. 97-7011.

United States Court of Appeals, Third Circuit.

Argued July 8, 1997.

Decided July 18, 1997.

Peter St. Phillip (argued), Philadelphia, PA, for Appellant.

David M. Barasch, United States Attorney, Ann K. Fiorenza (argued), Assistant United States Attorney, Larry B. Selkowitz, Assistant United States Attorney, Harrisburg, PA, for Appellee.

Before: BECKER and SCIRICA, Circuit Judges and KELLY, District Judge. ^*

BECKER, Circuit Judge.

OPINION OF THE COURT

Victor M. Roussos is a federal prison inmate serving a term for conspiracy to distribute a controlled substance, 21 U.S.C. § 846. He appeals from an order of the district court denying his petition for a writ of habeas corpus, 28 U.S.C. § 2241. Roussos completed a rigorous 500 hour Federal Bureau of Prisons ("BOP") drug treatment program which he believed made him eligible for early release. The BOP, however, ruled him ineligible because one of the arresting officers found a gun in his vacation home, and the sentencing court enhanced Roussos' sentence by two levels as a result of this finding. The enhancement, in turn, led the BOP, on the basis of a "Program Statement," to classify Roussos' offense as a crime of violence, thereby disqualifying him for early release. Roussos' appeal presents two related questions: (1) whether the enhancement renders the drug conspiracy conviction a violent offense; and (2) whether the Program Statement is therefore inconsistent with the congressional statute authorizing early release and with the BOP regulations interpreting the statute, so that Roussos must be granted relief. Roussos so contends, arguing that the BOP action violates his rights. We agree, and hence we shall vacate the district court's order and remand for proceedings consistent with this opinion.

I.

Roussos, a federal inmate formerly incarcerated in Allenwood, Pennsylvania, and presently in FCI-Seagoville, Texas, was convicted following his guilty plea to conspiracy to distribute narcotics in violation of 21 U.S.C. § 846. Roussos was arrested at his place of employment by the FBI after an anti-drug task force zeroed in on a New York City area drug trafficking network in which Roussos had participated. During a search of his automobile, FBI agents seized a brief case containing cocaine from the trunk. A subsequent search of his upstate New York residence revealed several firearms, additional amounts of cocaine, and drug paraphernalia. The sentencing court, acting pursuant to a plea bargain, treated the weapons to be connected with the drug offense and therefore imposed a two-level Specific Offense Characteristic enhancement for possession of a firearm during a drug trafficking offense under U.S. Sentencing Guidelines Manual § 2D1.1. There is no dispute that guns were not a factor in his arrest and conviction. Roussos was sentenced on December 16, 1993, to 87 months imprisonment with a four year period of supervised release.

In his habeas petition, Roussos contends that the BOP has wrongfully denied him eligibility for a sentence reduction for his successful completion of a drug treatment program under 18 U.S.C. § 3621(e)(2)(B) of the Violent Crime Control and Law Enforcement Act of 1994. The Act provides in pertinent part:

(2) Incentive for prisoners' successful completion of treatment program.--

* * * * * *

(B) 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) (1994).

The statute does not define "nonviolent offense." However, the relevant BOP regulations define its meaning by referencing the term "crime of violence" as it is used in the criminal code:

[a]n inmate who completes a residential drug abuse treatment program during his or her current commitment may be eligible for early release by a period not to exceed 12 months, ... unless the inmate's 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) (as amended).

In turn, 18 U.S.C. § 924(c)(3) (1984) 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).

In an effort to further define the term "crime of violence" (and hence the term "nonviolent offense"), the BOP issued Program Statement 5162.02 (July 24, 1995) (amended April 26, 1996). Section 9 of the Program Statement provides that a conviction under § 841 or § 846 should be considered a crime of violence if the sentencing court increased the base level of the sentence for possession of a dangerous weapon during commission of the offense because "possession of a dangerous weapon during commission of a drug offense poses a substantial risk that force may be used against persons or property." Id.

Roussos contends that he is eligible for a reduction because he was convicted of a "nonviolent offense" in that his offense has not been regarded as a crime of violence under § 924(c). See, e.g., United States v. Arrellano-Rios, 799 F.2d 520, 523 (9th Cir.1986) (possession of controlled substances with intent to sell, 21 U.S.C. § 841(a)(1), is a nonviolent offense; no narcotics offenses under § 841(a)(1) are "crimes of violence" within the meaning of 18 U.S.C. § 924(c)); United States v. Cruz, 805 F.2d 1464, 1468-75 (11th Cir.1986) (whether Congress intended statutory definition of "crime of violence" to include drug trafficking is ambiguous; such ambiguity precludes convicting defendants under statute permitting convictions for use of firearms during commission of "crime of violence"); United States v. Diaz, 778 F.2d 86, 88 (2d Cir.1985) (narcotics offenses are not crimes of violence within meaning of statute describing offense of carrying or using firearm in commission of crime of violence). ¹

Moreover, Roussos was convicted of conspiracy to distribute narcotics; if the actual distribution of narcotics does not constitute a crime of violence, it is hard to see how the conspiracy to do so can be so defined. If eligible and granted release one year early, Roussos would have been released on or before June 25, 1997. ²

The BOP contends, however, that under the Program Statement, once a two-level firearms enhancement has been made by the sentencing court under the Sentencing Guidelines, a prisoner is deemed to have committed a "crime of violence" and thus is categorically ineligible for consideration of a reduction in sentence under 18 U.S.C. § 3621(e)(2)(B). The BOP submits that Roussos was declared ineligible for the reduction in the sentence because his sentence was enhanced by two levels for possession of a firearm.

The Magistrate Judge recommended granting habeas relief in a Report and Recommendation filed August 27, 1996. However, the district court denied Roussos' habeas petition on the basis that the BOP, as the agency charged with administering the statute, is free to adopt any reasonable interpretation of a statutory term ("nonviolent offense") that Congress left undefined. The district court found the BOP's interpretation "entirely reasonable." The district court rejected the applicability of those cases that "focus on statutory definitions and elements of criminal offenses." The district court wrote: "The statutory construction cases have no application to the present case which involves a rehabilitative program for federal prisoners.... Roussos' claim that a categorical approach must be followed in interpreting the phrase 'nonviolent offense' is without merit." (Op. at 10; App. at 370a.) ³

II.

A.

The question presented is one of first impression for this Court. However, we find guidance on this question in the opinion of our colleague Judge Aldisert in Downey v. Crabtree, 100 F.3d 662, 669 (9th Cir.1996). Downey had entered a guilty plea to a federal drug indictment. At sentencing, he received a two-level enhancement because firearms were found at the location of his arrest. During his incarceration, he completed the BOP's substance abuse program, but the BOP denied him eligibility for sentence reduction because of its categorical exclusion of inmates who, when sentenced, received a sentencing enhancement for possession of a firearm during commission of a drug trafficking offense. Explaining that Downey had been convicted for possession of methamphetamine, 21 U.S.C. § 841(a)(1), not of firearms, 18 U.S.C. § 924(c), Judge Aldisert held that, in interpreting whether a prisoner was convicted of a "nonviolent offense" for purposes of granting a drug program reduction in sentence under § 3621(e)(2)(B), the BOP erred by considering sentencing factors (such as a firearms enhancement under the Guidelines) in lieu of the unambiguous statutory language which speaks only in terms of the conviction. Id. at 668. In other words, the statute makes clear that it is impermissible to consider facts other than those that form the basis for the elements of the offense for which the prisoner was convicted. ⁴ The court stated:

The relevant statute speaks clearly and unambiguously. The operative word of § 3621(e)(2)(B) is "convicted." Downey was convicted of a drug-trafficking offense, which is not a crime of violence. Section 3621(e)(2)(B) addresses the act of convicting, not sentencing or sentence-enhancement factors. The Bureau erred by conflating the guilt-determination (conviction) and sentencing processes. The result is a Bureau interpretation that runs counter to the Sentencing Commission...