Warren v. Crabtree, 98-35890

• Citation: 185 F.3d 1018
• Decision Date: 30 July 1999
• Docket Number: No. 98-35890,No. 98-35955,98-35890,98-35955
• Parties: (9th Cir. 1999) DARRELL B. WARREN, Petitioner-Appellant, v. JOSEPH CRABTREE, Respondent-Appellee. JOHN LUIS BERRY, Petitioner-Appellant, v. JOSEPH CRABTREE, Warden, Federal Correctional Institution Sheridan,Oregon, Respondent-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1018

185 F.3d 1018 (9th Cir. 1999)

DARRELL B. WARREN, Petitioner-Appellant, v. JOSEPH CRABTREE, Respondent-Appellee.

JOHN LUIS BERRY, Petitioner-Appellant, v. JOSEPH CRABTREE, Warden, Federal Correctional Institution Sheridan,Oregon, Respondent-Appellee.

No. 98-35890 No. 98-35955

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted May 6, 1999

Filed July 30, 1999

Wendy R. Willis, Stephen R. Sady, Assistant Federal Public Defenders, Portland, Oregon, for the petitioners-appellants.

Thomas M. Gannon, United States Department of Justice, Washington, D.C., for the respondent-appellee.

Appeal from the United States District Court for the District of Oregon, Ancer L. Haggerty, District Judge, Presiding. D.C. Nos. CV-97-00686-ALH, CV-97-01458-HA.

Before: William C. Canby, Jr. and Thomas G. Nelson, Circuit Judges, and Jeremy Fogel,¹ District Judge.

OPINION

CANBY, Circuit Judge:

Federal prisoners Darrell Warren and John Louis Berry separately appeal the district court's denial of their habeas petitions, brought pursuant to 28 U.S.C. S 2241.² Petitioners challenge the rulings of the United States Bureau of Prisons finding them ineligible for a sentence reduction authorized by the Violent Crime Control and Law Enforcement Act of 1994 ("Violent Crime Act"), 18 U.S.C. S 3621(e)(2)(B), for successful completion of a drug treatment program by a prisoner convicted of a "nonviolent offense."

The Bureau denied the two petitioners a reduction on the ground that one of the crimes of which they both had been convicted, using or carrying a firearm in relation to a drug trafficking crime, 18 U.S.C. S 924(c), was a violent crime.³We conclude that the Bureau may properly classify all S 924(c) offenses as "crimes of violence " for the purposes of the sentence reduction provision of the Violent Crime Act.

Facts and Procedural History

Berry was convicted of possessing more than 50 grams of cocaine with the intent to distribute, 21 U.S.C.S 841(a)(1), and of using or carrying a firearm in relation to that drug trafficking crime, 18 U.S.C. S 924(c)(1). He was sentenced to 200 months imprisonment.

Warren was convicted of possessing more than five grams of cocaine base, 18 U.S.C. S 844(a), of using or carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. S 924(c)(1), and of possessing a firearm as a previously convicted felon, 18 U.S.C. S 922(g)(1). Warren was sentenced to 152 months imprisonment, followed by a five- year period of supervised release.

While in custody, both petitioners successfully completed the Bureau's residential drug and alcohol treatment program. Petitioners applied for sentence reductions under 18 U.S.C. S 3621(e)(2)(B) but were deemed ineligible because the Bureau categorizes all convictions under S 924(c) as "crimes of violence" for the purposes of S 3621(e) eligibility.

Berry and Warren filed petitions for habeas corpus contending that the Bureau's categorical exclusion of inmates convicted under S 924(c) is improper. The district court dismissed both petitions, and both petitioners appeal.

Analysis

In the Violent Crime Act, Congress provided that"[t]he Bureau shall 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. S 3621(b). The Act further provided:

(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. S 3621(e)(2)(B) (1994) (emphasis added). The Act does not define "nonviolent offense."

The Bureau promulgated certain Bureau Program Statements to assist its staff in interpreting the statute. Included in them was the following:

6.1 Consideration for early release S 550.58. An 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. [S] 924(c)(3) . . . .

Federal Bureau of Prisons, U.S. Dep't of Justice, Program Statement 5330.10, Drug Abuse Programs Manual P 6.1 (May 25, 1995).⁴

The Bureau's Statement correctly assumes that the term "crime of violence" is the converse of "nonviolent crime." See United States v. Borrayo, 898 F.2d 91, 94 (9th Cir. 1990). It adopts by reference the definition of "crime of violence" provided by 18 U.S.C. S 924(c)(3):

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.

(Emphasis added); see Federal Bureau of Prisons, U.S. Dep't of Justice, Program Statement 5162.02, Definitions of "Crimes of Violence" P 5 (July 24, 1995) (quoting S 924(c)(3)).

It is this adoption of the definition of S 924(c)(3) that provides the basis for the petitioners' challenge to the Bureau's action in denying them a reduction of sentence. The petitioners do not object to the adoption of S 924(c)(3) itself; they contend instead that the Bureau has misapplied that section. Their argument derives from the structure of S 924(c). That structure may be stated as follows:

subsection (1) states the offense of using or carrying a firearm in relation to a crime of violence or a drug trafficking crime;

subsection (2) defines drug trafficking crime; and

subsection (3) defines crime of violence (to include a crime that "by its nature involves a substantial risk that physical force against the person or property of another may be used").

The petitioners contend that the effect of this structure is to create a dichotomy between drug trafficking crimes and crimes of violence. Because their use or carrying of a firearm was in relation to a drug trafficking offense, rather than to a crime of violence, the petitioners insist that the Bureau errs in holding them to have been convicted of a crime of violence.

The petitioners' argument misses the point. The structure and language of S 924(c) establish only that the predicate offense of "drug trafficking" is not a "crime of violence." The subsection does not attempt to characterize the offense of using or carrying a firearm in relation to those predicate offenses. The statute accordingly does not foreclose the Bureau's interpretation that all violations of S 924(c)(1) are "crimes of violence" irrespective of the character of the predicate offense.⁵.

On its merits, the Bureau's interpretation is defensible. The Bureau "has broad discretion to adopt any reasonable definition of `nonviolent offense' under S 3621(e)(2)(B)." Downey v. Crabtree, 100 F.3d 662, 666 (9th Cir. 1996). Although the Bureau's program statements are "only entitled to some deference" because they are not adopted with the " `rigors of the Administrative Procedure Act,' " Downey, 100 F.3d at 666 (quoting Reno v. Koray, 515 U.S. 50 (1995)), deference is appropriate here. The Supreme Court has observed that the mere presence of a gun as an item of trade at a drug transaction "creates a grave possibility of violence and death." Smith v. United States, 508 U.S. 223, 240 (1993).

The petitioners point out that more recent decisions of the Supreme Court make clear that a violation of 924(c)(1) need not involve violence. Although Bailey v. United States, 516 U.S. 137, 142 (1995), held that "use" of a firearm under S 924(c)(1) must involve the "active employment" of the weapon during and in relation to the predicate offense, a broader interpretation was given to "carrying " a firearm in Muscarello v. United States, 118 S. Ct. 1911 (1998). Muscarello held that the proscription against "carrying" a firearm under S 924(c)(1) applies not only to the carrying of the weapon on one's person, but also applies to a "person who knowingly possesses and conveys firearms in a vehicle . . . which the person accompanies." Id. at 1913-14. According to petitioners, this holding means that "carrying " a firearm in relation to a drug trafficking offense is not necessarily violent. The problem with this argument is that the Supreme Court reached the result it did in Muscarello because the "basic purpose" of S 924(c) is to "combat the`dangerous combination' of `drugs and guns.' " Id. at 1916 (quoting Smith, 508 U.S. at 240). It is perfectly consistent with this reasoning of Muscarello for the Bureau to conclude that using or carrying a gun in relation to a drug trafficking offense "by its nature involves a substantial risk that physical force against the person or property of another may be used" as specified in S 924(c)(3).⁶

Our conclusion that the Bureau may classify allS 924(c) convictions as violent crimes is supported by the only other circuit court to rule upon the question. See Love v. Tippy, 133 F.3d 1066, 1069 (8th Cir. 1998) ("An individual may not be convicted under S 924(c)(1) unless that individual uses or carries a firearm `during and in relation to' a crime of violence or a drug trafficking crime. Given the inherently violent nature of firearms, and the danger firearms pose to all members of society, the [Bureau] did not act unreasonably when it determined that a S 924(c)(1) offense is not a `nonviolent offense' for the purposes of S 3621(e)(2)(B)."); Sesler v. Pitzer, 110 F.3d 569, 571-72 (8th Cir. 1997) ("Given the elements necessary for a S 924(c)(1) conviction, we agree with the [Bureau's] conclusion that a S 924(c)(1) offense is clearly not a nonviolent offense within the meaning of S 3621(e) (2)(B)."), cert. denied, ...