Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
7-18-1997
Roussos v. Menifee
Precedential or Non-Precedential:
Docket 97-7011
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 97-7011
___________
VICTOR M. ROUSSOS,
Appellant
v.
FREDERICK MENIFEE, WARDEN,
Appellee
_______________________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 96-cv-01675
___________________
Argued July 8, 1997
Before: BECKER and SCIRICA, Circuit Judges and KELLY, District
Judge*
(Filed July 18, 1997)
PETER ST. PHILLIP, ESQUIRE (ARGUED)
135 So. 19th Street, Suite 200
Philadelphia, PA 19103
Counsel for Appellant
DAVID M. BARASCH, ESQUIRE
United States Attorney
ANN K. FIORENZA, ESQUIRE (ARGUED)
Assistant United States Attorney
LARRY B. SELKOWITZ, ESQUIRE
Assistant United States Attorney
228 Walnut Street
Harrisburg, PA 17108
Counsel for Appellee
* The Honorable James McGirr Kelly, United States District Court
for the Eastern District of Pennsylvania, sitting by designation.
1
______________
OPINION OF THE COURT
______________
BECKER, Circuit Judge.
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.
2
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
3
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. S 924(c)(3).
In an effort to further define the term “crime of violence”
(and hence the term “nonviolent offense”), the BOP issued Program
4
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
5
crime of violence).1
1 See also United States v. Wells, 623 F. Supp. 645 (S.D. Iowa)
(offense of cocaine distribution is not a "crime of violence"
within firearm-enhancement statute), aff'd, 773 F.2d 230 (8th
Cir. 1985); United States v. Bushey, 617 F. Supp. 292 (D.C. Vt.
1985) (possession with intent to distribute narcotics, by itself
or in conjunction with use or carrying of firearm, is not "crime
of violence" for purposes of statute prohibiting use of firearm
during or in relation to crime of violence).
6
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.
2 It appears that Roussos’ statutory release date as of January,
1997, was June 25, 1998, not counting any good time credits
granted after January, 1997. Thus, if given the full year
sentence reduction, Roussos would have been released June 25,
1997, at the latest, and possibly months earlier. (See Supp. Br.
of Appellant, at 29-30; App. at 362a.) Because of this time
frame, we have expedited the appeal.
7
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.
3 The district court had federal question jurisdiction pursuant
to 28 U.S.C. §§ 1331 and 2241. This court has jurisdiction
pursuant to 28 U.S.C. §§ 1291 and 2253. Because the question
here is purely a legal one, review of the district court's order
denying relief under 28 U.S.C. § 2241 is de novo. See Fowler v.
United States Parole Comm'n, 94 F.3d 835, 837 (3d Cir. 1996).
8
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
4 See also Davis v. Crabtree, 109 F.3d 566, 568-69 (9th Cir.
1997) (despite the BOP’s Program Statement listing felon firearm
9
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's formulation of a "non-violent
offense" and judicial endorsement of that formulation.
Id.
The Downey court concluded that “inmates not convicted of
possession as a crime of violence under § 924(c)(3), Ninth
Circuit law has held to the contrary; the BOP cannot deny inmate
eligibility for sentence reduction because inmate was not in
category of nonviolent offenders; “parity of reasoning” requires
that BOP interpretation of nonviolent offense must be consistent
with Circuit law defining crime of violence); cf. Jacks v.
Crabtree, 1997 WL 309962, *1-2 (9th Cir. June 11, 1997) (because
§ 550.58 explicitly lists certain crimes, the conviction of which
renders inmate ineligible for sentence reduction under § 3621,
BOP may look beyond current offense of conviction in determining
eligibility for sentence reduction for completion of drug
program; the case is thereby distinguishable from Downey and
Davis which addressed only a BOP Program Statement, not “a
properly promulgated regulation to which we owe full Chevron
deference”).
10
the firearm-possession offense, even if affected by
sentence-enhancement factors for similar conduct, also cannot be
denied sentence-reduction eligibility under a congressionally
authorized program on grounds that their offense was not
nonviolent.” Id. at 667-68. The Ninth Circuit therefore upheld
a district court’s grant of habeas corpus. Cf. Sesler v. Pitzer,
110 F.3d 569, 571-72 (8th Cir. 1997) (conviction of offense of
actually using a firearm during drug trafficking is not within
class of nonviolent offenses for purposes of eligibility for
sentence reduction under § 3621(e)(2)(B); BOP Program Statement
which defines as violent all convictions for using a firearm
during drug trafficking is not arbitrary).
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. Roussos, like Downey, has been denied eligibility for
sentence reduction under § 3621(e)(2)(B) not because his offense
has been classified as a “crime of violence” under § 924(c)(3),
but based solely upon the Program Statement that categorically
declares all inmates with two-level sentencing enhancements for
firearm possession ineligible. By ignoring the offense of
conviction and looking only to sentencing factors, the BOP has
attempted to transmogrify a “nonviolent offense” into “a crime of
violence.” In other words, the BOP converted a nonviolent crime
into a violent one by means of a Program Statement that is
inconsistent with the language of the statute, and its own
regulations. More specifically, under the rationale of Downey,
we find the BOP’s interpretation of a nonviolent offense in the
Program Statement to be in conflict with both 18 U.S.C. §
3621(e)(2)(B) and 28 C.F.R. § 550.58 and therefore erroneous.
The BOP may contend that classifying drug trafficking as a
crime of violence is permissible in light of the fact that this
Court has never clearly held otherwise. Although this Court has
not specifically held that a violation of 18 U.S.C. § 846 is not
“a crime of violence,” we do not find this dispositive for
purposes of interpreting the applicable statute and regulation.
12
Section 3621(e)(2)(B) refers to a conviction of a nonviolent
offense, which is cross-referenced in § 550.58 to import the
definition of a crime of violence provided in § 924(c)(3), a
statute with a large body of interpretative case law. And, as
noted, several courts have determined that conspiracy to possess
or distribute drugs, by itself, cannot be properly classified as
a crime of violence. See, e.g., United States v. Cruz, 805 F.2d
1464, 1468 n.5 (11th Cir. 1987).
More importantly, the BOP has not argued that Roussos was
denied eligibility for a sentence reduction because his
conviction was classified as a crime of violence under § 924(c).
Rather, the BOP declared Roussos ineligible solely because of
his sentence enhancement. Had Roussos’ sentence not been
enhanced, he apparently would have remained eligible for a
sentence reduction under § 3621(e)(2)(B) because his conviction
was not classified as a crime of violence under § 924(c). Thus,
the fact that this Court has not spoken on whether a violation of
§ 846 is a crime of violence has little bearing upon Roussos’
eligibility for a sentence reduction; under the statute and the
accompanying regulation, Roussos is eligible in the absence of
his conviction for a nonviolent offense or a crime of violence,
neither of which occurred.5
5 Other pending cases address the question whether the felon-in-
possession crime, 18 U.S.C. § 922(g), constitutes a crime of
violence. We surely do not decide that question here. However,
we do note that resolution of that question will be informed by
13
experience with the career offender provisions of the Sentencing
Guidelines. See Impounded, No. 96-7781, slip. op. at 18 n.13 (3d
Cir. June 30, 1997) (discussing case law interpreting the career
offender provisions of the Sentencing Guidelines and their
relationship to the felon-in-possession crime). We also note
that because of conflicting circuit precedent over whether the
felon-in-possession crime was a crime of violence for purposes of
the Sentencing Guidelines, the Sentencing Commission amended the
Application Notes to U.S.S.G. § 4B1.2 specifically to exclude the
felon-in-possession crime from the definition of crime of
violence for purposes of the career offender guidelines. See
1992 U.S.S.G., App. C, Amend. 461.
14
The district court rejected out-of-hand the so-called
“statutory construction cases,” despite the fact that the precise
issue at hand is the proper construction of the statute. The
district court also appears to have erroneously given the BOP
undue deference in its statutory construction. The BOP
interpretation is rooted only in a Program Statement to which
“some deference” is due. See Koray v. Sizer, 21 F.3d 558, 562
(3d Cir. 1994), rev’d on other grounds sub nom., Reno v. Koray,
515 U.S. 50 (1995) (bureau program statements are entitled to
less deference because they are not promulgated under the
Administrative Procedure Act and are “merely internal guidelines
[that] may be altered by the Bureau at will”); National R.R.
Passenger Corp. v. Boston and Maine Corp., 503 U.S. 407, 417
(1992) (where bureau's "interpretation is . . . in conflict with
the plain language of the statute, deference is [not] due").
Although the Program Statement the BOP used to deny Roussos
eligibility for a sentence reduction is entitled to “some
deference” under Koray, it must be rejected where it is
inconsistent with the clear language of the statute. Fowler v.
United States Parole Comm'n, 94 F.3d 835, 837 (3d Cir. 1996) (“We
owe no deference . . . to administrative interpretations or
regulations that are based upon an impermissible construction of
the statute.”).
III.
15
Having concluded that the BOP’s interpretation is in
conflict with the statute and its own regulations, we find that
the BOP cannot rely upon Roussos’ sentencing enhancement to deny
him eligibility for the sentence reduction. Accordingly, we will
vacate the district court order.6 Roussos contends that he has
met the requirements under 28 C.F.R. § 550.58(a)(2) for early
release and requests that we order his immediate placement in the
appropriate Community Corrections Center.7 We decline that
invitation. Instead, we will remand the matter to the district
court with directions that it immediately remand the case to the
BOP for further proceedings consistent with this opinion.8 The
mandate shall issue forthwith.
6 In fairness to Judge McClure, the able district judge whose
order we vacate, we note that he has reconsidered this issue in a
subsequent decision, Mallozzi v. Menifee, No. 96-1721, slip op.,
(M.D. Pa. December 27, 1996), in which he concedes that “on
further consideration [] Roussos was decided incorrectly.”
(Order dated Feb. 27, 1997, at 2.)
7 Roussos has executed his agreement to participate in Community
Transition Programming, as required by 28 C.F.R. §
550.58(a)(1)(ii). See Index to Exhibits of Habeas Corpus
Petition.
8 The BOP will determine whether there is any other basis for
denying Roussos early release under § 3621(e)(2)(B). Otherwise,
as its counsel represented at oral argument, it should be granted
and Roussos placed in a Community Corrections Center.
16