F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 3 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
THOMAS C. CRAWFORD,
Petitioner-Appellant,
v. No. 98-3167
J. W. BOOKER, Warden, (D.C. No. 98-3141-RDR)
(D. Kan.)
Respondent-Appellee.
ORDER AND JUDGMENT*
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.**
Section 32001 of the Violent Crime Control and Law Enforcement Act of 1994,
Pub. L. No. 103-322, 108 Stat. 1824, 1896 (1994) (VCCLEA), provides that “[t]he period
a prisoner convicted of a nonviolent offense remains in custody after successfully
completing a [substance abuse treatment] program may be reduced by the Bureau of
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
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) (emphasis added). The Bureau of
Prisons (BOP) considers a felon convicted of possessing a firearm in violation of
18 U.S.C. § 922(g)(1) ineligible for a sentence reduction under VCCLEA. The issue in
this case is whether BOP may categorically exclude from consideration under VCCLEA,
a felon convicted of possessing a firearm in violation of § 922(g)(1).
I.
Petitioner Thomas C. Crawford is serving a sentence of seventy months
imprisonment resulting from his 1995 guilty plea in the Northern District of Indiana to the
offenses of structuring monetary transactions to evade reporting requirements, 31 U.S.C.
§ 5324(a)(3), and possession of a firearm by a felon, 18 U.S.C. § 922(g)(1). While in
custody, Petitioner apparently completed BOP’s drug treatment program and then
unsuccessfully applied to BOP for a sentence reduction under VCCLEA. Petitioner
subsequently filed a petition for a writ of habeas corpus pro se in the district court under
28 U.S.C. § 2241, challenging BOP’s denial of his application for a sentence reduction.
In his petition, Petitioner claimed that BOP exceeded its statutory authority under
VCCLEA when it categorized a § 922(g)(1) conviction as a crime of violence.
Because Petitioner sought expedited review of his petition and because the district
court recently had upheld BOP’s categorization of a § 922(g)(1) offense as a crime of
violence for purposes of determining an inmate’s eligibility for a sentence reduction
2
under VCCLEA, see Taylor v. Bureau of Prisons, No. 96-3520, 1998 WL 159918
(D. Kan., March 31, 1998) (unpublished); Wilson v. Bureau of Prisons, No. 96-3484,
1998 WL 159919 (D. Kan., March 31, 1998) (unpublished), the court summarily
dismissed the petition pursuant to 28 U.S.C. § 2243 without requiring Respondent to
appear.1 This appeal followed. Because the district court granted Petitioner leave to
proceed on appeal in forma pauperis, and neither the AEDPA’s certificate of appealability
requirement, see 28 U.S.C. § 2253, nor the PLRA’s filing fee obligation, see 28 U.S.C. §
1915(a)(2) & (b), apply to applications under 28 U.S.C. § 2241, see McIntosh v. United
States Parole Comm., 115 F.3d 809, 810-12 & n.1 (10th Cir. 1997), we proceed to the
merits.
II.
After enactment of VCCLEA, BOP adopted a regulation that disqualified from
consideration under 18 U.S.C. § 3621(e)(2)(B) 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).2 BOP then adopted Program Statement No. 5162.02 which disqualified
Section 2243 provides in relevant part: “A court . . . entertaining an application
1
for a writ of habeas corpus shall forthwith award the writ or issue an order directing the
respondent to show cause why the writ should not be granted, unless it appears from the
application that the applicant . . . is not entitled thereto. 28 U.S.C. § 2243.
2
Section 924(c)(3) defines the term “crime of violence” as a felony that–
(A) has as an element the use, attempted use, or threatened use of physical
force against the person or property of another, or
(continued...)
3
from consideration under § 3621(e)(2)(B), inmates convicted of possessing a firearm in
violation of 18 U.S.C. § 922(g) because BOP deemed such an offense a crime of
violence. BOP’s policy of denying sentence reductions under § 3621(e)(2)(B) based on
the classification of a § 922(g) conviction as a crime of violence, however, created
conflict among the federal courts. Compare Davis v. Crabtree, 109 F.3d 566 (9th Cir.
1997) (because a § 922(g) conviction is a nonviolent offense for purposes of § 924(c)(3),
BOP must consider an inmate convicted under § 922(g) eligible for a sentence reduction
under § 3621(e)(2)(B)); Miller v. United States, 964 F. Supp. 15 (D.D.C. 1997) (same),
with Parsons v. Pitzer, F.3d , 1998 WL 416888 (7th Cir. 1998) (BOP did not
exceed its statutory authority by excluding an inmate convicted under § 922(g) from
consideration under § 3621(e)(2)(B)); Venegas v. Henman, 126 F.3d 760 (5th Cir. 1997)
(same), cert. denied, 118 S. Ct. 1679 (1998); Paydon v. Hawk, 960 F. Supp. 867 (D.N.J.
1997) (same). See generally Royce v. Hahn, F.3d , 1998 WL 440575 at *5-8 (3d
Cir. 1998) (discussing cases).
Consequently, BOP amended its regulation in October 1997 to delete the
disqualification based on a conviction for “a crime of violence as defined in 18 U.S.C.
2
(...continued)
(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)(A) & (B).
4
§ 924(c)(3).” The current regulation now reads in relevant part:
(1) As an exercise of the discretion vested in the Director of the Federal
Bureau of Prisons, the following categories of inmates are not eligible for
early release . . .
(vi) Inmates whose current offense is a felony . . .
(B) That involved the carrying, possession, or use of a firearm . . . .
28 C.F.R. § 550.58(a)(1)(vi)(B) (1998). Thus, the current regulation no longer classifies
a § 922(g) offense as a crime of violence under § 924(c)(3). Moreover, BOP’s formal
regulation interpreting § 3621(e)(2)(B) is entitled to greater deference than its previous
informal program statement. See Fristoe v. Thompson, 144 F.3d 627, 631 (10th Cir.
1998) (court will defer to formal regulation “so long as the agency’s interpretation is
based upon a permissible construction of the statute,” whereas court will defer to informal
interpretation of a statute “only to the extent that it is well-reasoned and has the power to
persuade”).
III.
Unfortunately, we cannot decide the merits of Petitioner’s appeal on the record
before us. The district court understandably summarily dismissed the petition without
requiring a response or developing the record because the court had twice ruled on the
question before it. Generally, however, summary dismissal of a habeas petition is
appropriate only where the petition is plainly frivolous. See Blackledge v. Allison, 431
U.S.63, 76 (1977). Given the difference of opinion among the courts which have
addressed the issue, we cannot say that Petitioner’s challenge to BOP’s interpretation of
5
§ 3621(e)(2)(B) is frivolous because, unlike the district court, we have never addressed
the issue.3 Moreover, on this record we are unable to discern whether BOP applied its
new regulation in denying Petitioner’s application or whether it applied its previous
program statement. Without this knowledge, we do not know the appropriate standard of
review to apply to BOP’s interpretation of § 3621(e)(2)(B).
We believe the best approach is to vacate the decision of the district court and
remand for further proceedings. On remand, we direct the district court to appoint
counsel for Petitioner and require a response so that the issue before the court may be
fully briefed and considered. Because the issue presented appears to be a legal one, an
evidentiary hearing may be unnecessary. However, we leave that for the district court to
decide.
VACATED and REMANDED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
3
While 18 U.S.C. § 3625 (provisions for judicial review of agency action
inapplicable to any decision under § 3621(e)(2)(B)) may preclude us from reviewing
BOP’s substantive decision regarding a specific inmate, it does not prevent us from
determining whether BOP exceeded its statutory authority in interpreting § 3621(e)(2)(B).
See Fristoe 144 F.3d at 630-31.
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Crawford v. Booker
Combined Opinion