Royce v. Hahn

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit

8-5-1998

Royce v. Hahn
Precedential or Non-Precedential:

Docket 97-3266

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Filed August 5, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-3266

ZULIKEN S. ROYCE,
Appellant

v.

JOHN E. HAHN, Warden,
Appellee

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 96-cv-00262E)

ON PANEL REHEARING

Before: STAPLETON, ROTH, and WEIS,
Circuit Judges.

Filed: August 5, 1998

Zuliken S. Royce, Pro Se
Raybrook FCI
P.O. Box 902
Raybrook, New York, 12977-0300

Bonnie R. Schlueter, Esquire
Tina M. Oberdorf, Esquire
Office of the United States Attorney
633 United States Courthouse
Pittsburgh, PA 15219
Attorneys for Appellee
John Hahn, Warden
OPINION OF THE COURT

WEIS, Circuit Judge.

After our original opinion in this case was filed, the
government presented a petition for panel rehearing. We
granted the petition, vacated the opinion, and now consider
the appeal anew.

The issue in this case is whether mere possession of a
firearm by a previously convicted felon is a "crime of
violence" that triggers an obligation of federal prison
authorities to notify local authorities upon an inmate's
release. We answer that question in the negative and
correspondingly hold that a Bureau of Prisons Program
Statement to the contrary represents an incorrect
interpretation of the relevant notification statute.

Petitioner Zuliken S. Royce was incarcerated in the
federal correctional institution at McKean, Pennsylvania
when he filed this habeas corpus petition. He had been
convicted in the United States District Court for the Middle
District of Florida on two counts -- possession of a firearm
by a convicted felon in violation of 18 U.S.C. S 922(g)(1),
and unlawful possession of a machine gun in violation of
18 U.S.C. S 922(o)(1). Although there were two counts, only
one gun was involved. Petitioner had previously been
convicted in state court on three felony drug charges and
one count of second degree attempted burglary.

According to the presentence investigation report for the
current conviction, on February 10, 1993 Secret Service
agents investigating a trail of counterfeit money contacted
petitioner at his business location. Petitioner denied
knowledge of counterfeiting activity and consented to a
search of the premises. At that point, he announced that he
had a "Mac 10" under his desk for protection. The agents
retrieved an unloaded RPB Industries M10, 9 millimeter
machine gun from under the desk. They found no
ammunition on the premises.

Following his conviction and incarceration, prison
authorities classified petitioner as having committed

2
"crimes of violence" pursuant to a definition of that term
contained in the Federal Bureau of Prisons' internal
Program Statement No. 5162.02(7). As a result, he became
subject to 18 U.S.C. S 4042(b), which requires the Bureau
to notify local law enforcement authorities of the imminent
release of inmates who had committed violent crimes and
provide their names, criminal history, parole restrictions,
and proposed residence.

Arguing that his offenses of conviction were not"crimes
of violence," petitioner objected to this classification. After
his appeals through the administrative process proved
unsuccessful, petitioner filed this habeas corpus action in
the United States District Court for the Western District of
Pennsylvania. He alleged that the Bureau exceeded its
authority in classifying his offenses as "crimes of violence"
and in creating Program Statement 5162.02. Petitioner
specifically asked the court to enter a declaratory judgment
that he was "eligible for the non-application of 18 U.S.C.
S 4042[b]."

A magistrate judge recommended that the petition be
denied for lack of subject matter jurisdiction. She reasoned
that, under the traditional test for habeas corpus
jurisdiction, petitioner failed to "make any colorable
allegation that his underlying conviction is invalid or that
he is otherwise being denied his freedom from unlawful
incarceration." Despite the petition's specific request, the
magistrate judge did not rule on the declaratory relief
aspect. The district judge adopted the recommendation and
dismissed the petition.

I.

This court has jurisdiction to review the denial of a
habeas petition under 28 U.S.C. S 1291 and our review is
plenary. United States ex rel. Schiano v. Luther, 954 F.2d
910, 912 (3d Cir. 1992). The pro se petition here challenges
application of section 4042(b)'s notification requirement,
but not the fact or duration of confinement. See Preiser v.
Rodriquez, 411 U.S. 475, 484-85 (1973). Insofar as the
district court found that it did not have subject matter
jurisdiction under traditional 28 U.S.C. S 2241 analysis, the
ruling was correct.

3
The label placed on a petition, however, is not
determinative. As stated in Graham v. Broglin, 922 F.2d
379, 382-83 (7th Cir. 1991), if a petition asks for habeas
corpus relief when petitioner "should have brought a civil
rights suit, all he has done is mislabel his suit, and either
he should be given leave to plead over or the mislabeling
should simply be ignored." See also Fierro v. Gomez, 77
F.3d 301, 305 (9th Cir. 1996) (a court may construe a
section 1983 complaint as a habeas petition and vice
versa), vacated on other grounds, 117 S.Ct. 285 (1996). This
admonition is especially weighty in pro se litigation. See
United States ex rel. Montgomery v. Brierley, 414 F.2d 552,
555 (3d Cir. 1969) (petition prepared by a prisoner may be
inartfully drawn and should be read "with a measure of
tolerance").

An inmate cannot avoid the exhaustion requirements
that may be a prerequisite to a habeas corpus action by
characterizing his suit as a civil rights complaint. Where
exhaustion is not implicated, however, the case should not
be dismissed until other legitimate avenues of relief are
considered. Here, petitioner had already exhausted
available administrative appeals and we conclude that his
petition should have been construed as an action seeking a
declaratory judgment under 28 U.S.C. SS 1331 and 2201.

Rather than remanding for consideration as such by the
district court, we will address the merits of the petition. We
do so in the interest of judicial efficiency because there are
no factual disputes, the issue presented is purely a
question of law, and both parties have briefed the merits.
See, e.g., Gibson v. Scheidemantel, 805 F.2d 135, 139 (3d
Cir. 1986). Moreover, the issue is one frequently recurring
that should be addressed at this time.

II.

The notification provision, 18 U.S.C. S 4042(b), requires
the Bureau of Prisons to notify local law enforcement
officials of the release of a prisoner who was "convicted of
a crime of violence (as defined in section 924(c)(3))."1
_________________________________________________________________

1. 8 U.S.C. S 4042 provides in pertinent part:

4
S 4042(b)(3)(B). In turn, 18 U.S.C. S 924(c)(3) defines a
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."

The firearm possession violations do not require proof of
"use, attempted use, or threatened use" as an element of
the crime. Thus, subsection (A) has no application to the
circumstances of this case; only subsection (B) is relevant.
See United States v. Canon, 993 F.2d 1439, 1441 (9th Cir.
1993). We review the Bureau's interpretation of subsection
(B) for consistency with the plain language of the statute
_________________________________________________________________

(b) "Notice of release of prisoners.-- (1) At least 5 days prior to
the date on which on a prisoner described in paragraph (3) is to be
released on supervised release, . . . written notice of the release
. . .
shall be provided to the chief law enforcement officer of the State
and of the local jurisdiction in which the prisoner will reside.
Notice
prior to release shall be provided by the Director of the Bureau of
Prisons. . . . The notice requirements under this subsection do not
apply in relation to a prisoner being protected under chapter 224.

(2) A notice under paragraph (1) shall disclose --

(A) the prisoner's name;

(B) the prisoner's criminal history, including a description of
the
offense of which the prisoner was convicted; and

(C) any restrictions on conduct or other condi tions to the
release of the prisoner that are imposed by law, the sentencing
court, or the Bureau of Prisons or any other Federal agency.

(3) A prisoner is described in this paragraph if t he prisoner was
convicted of --

(A) a drug trafficking crime, as that term i s defined in section
924(c)(2); or

(B) a crime of violence (as defined in secti on 924(c)(3)).
5
and pertinent case law. Roussos v. Menifee, 122 F.3d 159,
163-64 (3d Cir. 1997).

The term "crime of violence" is an important component
of a number of statutes. In addition to the cross-reference
contained in the notification statute, the "crime of violence"
concept is relevant to:

1) the United States Sentencing Guidelines, especi ally
when determining career criminal status and its
related sentence enhancement, U.S.S.G. S 4B1.1;

2) 18 U.S.C. S 924(e)(1), which assigns, inter alia, a
fifteen year mandatory minimum sentence to a felon
with three prior convictions for violent felonies; and

3) 18 U.S.C. S 3621(e)(2)(B), which by negat ive
inference excludes inmates who committed violent
offenses from eligibility for a sentence reduction
following completion of a substance abuse treatment
program.

Unfortunately, the courts and the Bureau have complicated
matters by using varying definitions of "crime of violence"
and related terms without exploring the possibility and
desirability of a more uniform approach.

The convictions at issue here are limited to firearm
possession. This Court has yet to discuss whether this
violation is a crime of violence under the notification
statute, although we have encountered the offense in other
settings. The Bureau, in its Program Statement No.
5162.02(7), takes the position that violations of the firearm
possession prohibitions are crimes of violence in all
instances. We assess the validity of that approach by first
examining related contexts where the terminology is
relevant.

(1.) Sentencing Guidelines

The term "crime of violence" is defined in the Sentencing
Guidelines. Because that formulation has been the subject
of substantial litigation in the federal courts and is used
most frequently, we first examine the term in the guidelines
context.

6
Sentencing Guideline section 4B1.1 provides for
enhanced terms of incarceration for those convicted of a
"crime of violence." Such an offense is described in section
4B1.2(a) as a felony that (1) has as an element "the use,
attempted use, or threatened use" of physical force or (2) is
a "burglary of a dwelling, arson, or extortion, involves use
of explosives, or otherwise involves conduct that presents `a
serious potential risk of physical injury to another.' "

The original commentary to section 4B1.2 created a
conflict among various Courts of Appeals over the question
of whether mere possession of a firearm by a felon was a
crime of violence. See Stinson v. United States, 508 U.S. 36,
39 n.1 (1993) (citing United States v. Williams, 892 F.2d 296
(3d Cir. 1989); United States v. Goodman, 914 F.2d 696
(5th Cir. 1990); United States v. Alvarez, 914 F.2d 915 (7th
Cir. 1990); United States v. Cornelius, 931 F.2d 490 (8th
Cir. 1991); United States v. O'Neal, 937 F.2d 1369 (9th Cir.
1990); and United States v. Walker, 930 F.2d 789 (10th Cir.
1991)). In 1992, the United States Sentencing Commission
amended the commentary to section 4B1.2 to clarify that
" `[c]rime of violence' does not include the offense of
unlawful possession of a firearm by a felon." See U.S.S.G.
S 4B1.2 Application Note 1.

In Stinson, the Supreme Court confirmed the binding
effect of this amendment and held that "[f]ederal courts
may not use the felon in possession offense as the predicate
crime of violence for purposes of imposing the career
offender provisions of U.S.S.G. S 4B1.1 . . .." 508 U.S. at
47. Thus, in the sentencing guideline setting, an
authoritative ruling holds that mere firearm possession by
a convicted felon is not a crime of violence. See also United
States v. Sahakian, 965 F.2d 740, 742 (9th Cir. 1992);
United States v. Johnson, 953 F.2d 110, 115 (4th Cir.
1991).

(2.) Armed Career Criminal

Under 18 U.S.C. S 924(e), a mandatory minimum
sentence must be imposed on a felon in possession of a
firearm who has three previous convictions "for a violent
felony." The statute defines "violent felony" as one that "has

7
as an element use, attempted use, or threatened use of
physical force" or is a burglary, arson, or extortion, involves
use of explosives, "or otherwise involves conduct that
presents serious potential risk of physical injury."
S 924(e)(2)(B). This definition uses the identical pertinent
language found in Sentencing Guideline section 4B1.2.2

In United States v. Doe, 960 F.2d 221 (1st Cir. 1992), the
Court considered whether conviction under section
922(g)(1) (possession of firearms by a felon) was a proper
predicate offense for imposing the armed career criminal
provision of section 924(e). Judge Breyer, writing for the
Court, held that the offense was not a "violent felony" under
the statute, and commented that "simple possession of a
firearm does not fit easily within the literal language of the
statute." Id. at 224.

Observing that an expansive reading of the language
would encompass crimes not meant to be included, Doe
reasoned that the term "violent felony" evoked a "tradition
of crimes that involve the possibility of more closely related,
active violence." Id. at 225. The Court also reviewed the
commentary to U.S.S.G. S 4B1.2, remarking that "because
uniform interpretation of similar language is in itself
desirable, we believe we should give some legal weight to
the Commission's determination" not to include the felon in
possession offense as a crime of violence. Id.

Two other Courts of Appeals agree that U.S.S.G. S 4B1.2
and 18 U.S.C. S 924(e) should be read consistently with one
another. In United States v. Garcia-Cruz, 978 F.2d 537,
542-43 (9th Cir. 1992), and United States v. Oliver, 20 F.3d
415, 416 (11th Cir. 1994) (per curiam), both Courts held,
after examining Guidelines case law, that the felon in
possession offense was not a violent felony under section
924(e). In Oliver, the court noted that the two expressions
in 18 U.S.C. S 924(e) and U.S.S.G. S 4B1.2 "are not
conceptually distinguishable for purposes of the narrow
question raised in this appeal." 20 F.3d at 417. Doe, Oliver,
and cases that reach a similar conclusion persuasively
_________________________________________________________________

2. Guideline section 4B1.2 speaks of "burglary of a dwelling," whereas
section 924(e)(2)(B)(ii) designates only "burglary."

8
explain why mere possession does not constitute a"crime
of violence."

We note also that the relevant language in sections
924(c)(3) and 924(e) differ only in minor detail. Section
924(c)(3)(B) speaks of a violation "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." Section 924(e)(2)(B)(ii) refers to
"conduct that presents a serious potential risk of physical
injury to another." The Court of Appeals for the Ninth
Circuit has concluded that possession of a firearm by a
felon is not a violent crime under either subsection.
Downey v. Crabtree, 100 F.3d 662, 667 (9th Cir. 1996). We
agree that the quoted variation in wording does not affect
the classification of felon in possession offenses.

(3.) Substance Abuse Treatment Program

The sentencing benefits available under the substance
abuse treatment program, created by the Violent Crime
Control and Law Enforcement Act of 1994, Pub. L.
103-322, 108 Stat. 1796 (1994), also hinge upon the crime
of violence concept. The statute, 18 U.S.C. S 3621(e)(2)(B),
grants the Bureau of Prisons discretion to reduce the period
of custody up to one year for any "prisoner convicted of a
nonviolent offense" who successfully completes a substance
abuse treatment program.

The statute does not define "nonviolent offense." The
Bureau of Prisons originally adopted a regulation that
disqualified inmates whose "current offense is determined
to be a crime of violence as defined in 18 U.S.C.
S 924(c)(3)." 28 C.F.R. S 550.58 (1996). In addition, the
Bureau adopted Program Statement No. 5162.02 (as
amended April 23, 1996), which excluded from
participation those inmates convicted of firearm violations
under specified subsections of 18 U.S.C. S 922, including
mere possession. In a number of cases, inmates currently
serving terms for nonviolent offenses (including the felon-
in-possession offense) contested their classification and
argued that under 29 C.F.R. S 550.58 and Program
Statement No. 5162.02, they were improperly being denied
earned sentence reductions.

9
The Bureau soon realized that its policy of denying
sentence reduction based on the questionable classification
of certain violations as crimes of violence was generating
conflicting decisions from the courts. In particular,
numerous cases addressed the Bureau's classification of
the felon in possession of a firearm offense.

To resolve the problem, the Bureau amended its
regulation in October 1997 to delete the disqualification
based on convictions for "a crime of violence as defined in
18 U.S.C. S 924(c)(3)." 28 C.F.R. S 550.58. See also 62 Fed.
Reg. 53690 (Oct. 15, 1997). In relevant part, the current
regulation now provides:

(a) 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) [i]nmates whose current offense is a felony . . .
(B) [t]hat "involved the carrying, possession, or use of a
firearm . . ."

28 C.F.R. S 550.58 (emphasis added). Thus, the current
regulation no longer classifies the felon in possession of a
firearm offense as a "crime of violence." This new
discretionary approach has not yet been incorporated into
Program Statement 5162.02, but, by deleting the reference
to "crime of violence," the Bureau effectively made that term
irrelevant at least in the context of the drug abuse
treatment statute.3 Cases analyzing the original regulation
are now mostly of historical interest. A brief review of those
decisions, however, is in order.4
_________________________________________________________________

3. The notification statute, in contrast, contains an explicit reference
to
"crime of violence." Thus, the Program Statement still includes that
classification.

4. Several district courts within this Circuit had concluded that a felon
in possession offense was a crime of violence justifying a denial of
sentence reduction. Those opinions, however, preceded the change in the
Bureau's regulations and of course would not be binding on this court.
See Piccolo v. Lansing, 939 F. Supp. 319 (D. N.J. 1996); Paydon v.
Hawk, 960 F. Supp. 867 (D. N.J. (1997); Snisky v. Pugh, 974 F. Supp.
817 (M.D. Pa. 1997).

10
In the first of these cases, Downey v. Crabtree, 100 F.3d
662 (9th Cir. 1996), the Court held that the Bureau was
not permitted to use a sentence enhancement imposed
under the Guidelines to transform what was otherwise a
nonviolent felony (possession of 100 grams of
methamphetamine) into a crime of violence.5

Downey explicitly rejected the government's argument
"that Congress' omission of a definition for`nonviolent
offense' in S 3621(e)(2)(B) suggests an intention to entrust
defining that term entirely to the Bureau of Prisons'
discretion." Id. at 666. While the Bureau properly used its
rulemaking authority to promulgate a regulation defining
"nonviolent felony" as the converse of the section 924(c)(3)
crime of violence definition, it could not reinterpret the term
contrary to the established authority built up around the
section 924(c)(3) definition. See id. at 668.

A subsequent opinion from the same Court reinforced
this approach. Davis v. Crabtree, 109 F.3d 566 (9th Cir.
1997), held that the crime of conviction -- felon in
possession of a firearm -- was a nonviolent offense and that
the Bureau's characterization to the contrary could not be
used to deny a sentence reduction. Id. at 567.

Crabtree v. Jacks, 114 F.3d 983 (9th Cir. 1997),
sustained the Bureau's decision to deny a sentence
reduction, but presented substantially different facts than
either Downey or Davis. In Jacks, although their current
convictions (including a felon in possession offense) were
nonviolent, the inmates had previously been convicted of
concededly violent crimes. Id. at 984. In these
circumstances, the Court held that the Bureau's
interpretation which encompassed previous convictions was
sustainable because the substance abuse statute did not
specify whether "nonviolent felony" was limited only to
current convictions. Id. at 986.
_________________________________________________________________

5. Section 9 instructed Bureau officials to examine the "Specific Offense
Characteristics" noted in the presentence investigation report that aid
the district court in applying the guidelines. As noted in Downey, the
Bureau categorically denied early release credit for inmates convicted
under 18 U.S.C. S 841(a) if they also received a sentence enhancement
for firearm possession. 100 F.3d at 665.

11
In Venegas v. Henman, 126 F.3d 760 (5th Cir. 1997), the
Court of Appeals for the Fifth Circuit upheld the Bureau's
denial of a sentence reduction to an inmate whose current
conviction included the crimes of felon in possession of a
firearm and possession with intent to distribute marijuana.
The Court concluded that section 3621(e) grants the
Bureau generalized discretion to determine when and how
to reduce a sentence. Id. at 762. In particular, the court
refused to interpret "crime of violence" under section
924(c)(3) in light of the guidelines because sentence
reduction and sentencing serve different ends. Id. at
763-64. In contrast to Venegas, we have noted that an
effort to determine whether the felon in possession of a
firearm offense constitutes a crime of violence would be
"influenced by the career offender provisions of the
Sentencing Guidelines." Roussos, 122 F.3d at 163 n.5.

Venegas found support in Sesler v. Pitzer, 110 F.3d 569
(8th Cir. 1997), but that case spoke only to use of a
firearm, or in dicta, to possession of a firearm during a
predicate offense. Id. at 571-72. Sesler does not preclude a
finding that mere possession offenses are nonviolent.
Moreover, a few months later, the Eighth Circuit took issue
with Venegas stating, "[h]aving adopted S 924(c)(3) as its
definitional standard in its [original] regulation, the BOP is
bound by the definition accorded it in the interpretative
decisional case law." Martin v. Gerlinski, 133 F.3d 1076,
1080 (8th Cir. 1998).

We have twice considered the meaning of "nonviolent
felony" in the substance abuse program context. In Stiver v.
Meko, 130 F.3d 574 (3d Cir. 1997), an inmate with previous
convictions for robbery and aggravated assault challenged
his ineligibility for reduction of his current sentence for
possession of heroin with intent to distribute. Both of his
previous convictions, however, clearly qualified as crimes of
violence under section 924(c)(3), the guidelines and the
Bureau's regulation. The panel concluded in that situation,
as did Jacks, that the Bureau could look to the violent
nature of previous convictions, rather than limiting itself to
consideration of the current offense only. Id. at 577.

In the other case, Roussos, an inmate was convicted of
conspiracy to distribute narcotics. 122 F.3d at 160. The

12
sentencing court enhanced the period of incarceration
pursuant to U.S.S.G. S 2D1.1 because guns were found in
the inmate's house some distance from the arrest site. Id.
In light of the sentence enhancement, the Bureau, as it did
in Downey, denied eligibility for a sentence reduction
following the inmate's successful completion of the
substance abuse program. Id.

Roussos held that the offense of conspiracy to distribute
narcotics was not a crime of violence and that the provision
of the Program Statement declaring ineligible all inmates
with a sentencing enhancement for firearms possession was
unenforceable. Id. at 164. By focusing on enhancement
instead of the offense, the Bureau "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." Id. at 163. We were persuaded by the
reasoning in Downey that the Bureau's interpretation of
section 924(c)(3) ran counter to the Sentencing
Commission's formulation of a `nonviolent offense' and
corresponding judicial endorsement. Id. at 162-63.

Stiver was careful to distinguish Roussos. Traditionally,
the Bureau has been given substantial discretion in
administering rehabilitation programs and the substance
abuse program falls within that category. To the extent,
therefore, that Stiver permits the Bureau to use prior
convictions as a factor in determining program eligibility, it
is consistent with that practice. In contrast, the notification
statute does not serve a rehabilitative purpose. Thus, we
are not constrained by Stiver and its discussion of the
Bureau's discretion under the substance abuse program.

III.

It is against this rather complex background that we
come to the issue posed in the case before us -- whether a
current conviction for possession of firearms by a felon is a
"crime of violence" within the scope of the notification
procedures of 18 U.S.C. S 4042(b). Necessarily, we address
whether Program Statement No. 5162.02(7) contains a
correct interpretation of the statutory crime of violence
definition as it has evolved in the federal courts.

13
Section (7) of Program Statement No. 5162.02 provides:
"Criminal Offenses That Are Crimes of Violence In All
Cases. Any conviction for an offense listed below should be
categorized as a `crime of violence.' a. Title 18, United
States Code . . . S 922 . . . (g), (o). . . (firearms violations)."
The definition section of Program Statement No. 5110.11,
which covers "Notification of Release to State/Local Law
Enforcement," in turn instructs that "clarifying instructions
to define a `crime of violence' are provided in the Program
Statement [No. 5162.02]."

Unlike the substance abuse provision, which failed to
define "nonviolent offense" and thus allowed a regulation to
fill the gap, the notification statute does not leave
interpretation to the Bureau. Rather, section 4042(b)(3)(B)
refers to a specific provision defining of "crime of violence"
-- that contained in section 924(c)(3). Such an explicit
reference to a statutory definition demonstrates a
Congressional intent to forestall interpretation of the term
by an administrative agency and acts as a limitation on the
agency's authority. See generally Greenwood Trust Co. v.
Massachusetts, 971 F.2d 818, 827 (1st Cir. 1992)
(incorporation by reference to another statute brings the
statutory language and relevant case law into the
incorporating statute).

The citation to section 924(c)(3) is unlike other directions
that appear in the notification statute. For example, section
4042(b) requires the Bureau to advise local authorities.
Presumably, the method of notification is left to the
agency's discretion, e.g., mail, fax, hand-delivery, etc. Such
flexibility in the means to be employed adds significance to
the fact that Congress did not leave the crime of violence
definition similarly open-ended.

Some weight is also due to the state of the law at the
time Congress enacted S 4042(b). See Greenwood Trust Co.,
971 F.2d at 827. Stinson, Doe, Johnson, Sahkian and
Garcia-Cruz constituted a formidable body of authority
construing "crime of violence" and we may assume that the
lawmakers were aware of these precedents. Thus, the
Bureau is bound not only by the language of the statutory
definition, but also by its judicial interpretations. Id. See

14
also Dutton v. Wolpoff and Abramson, 5 F.3d 649, 655 (3d
Cir. 1993).

Unlike the situation in Stiver and Jacks, this case does
not implicate a duly promulgated regulation that purports
to establish the agency's statutory interpretation of an
otherwise undefined term. Nor do we owe the Program
Statement any deference. The notification statute and the
Program Statement specifically refer to a provision of the
Criminal Code, 18 U.S.C. S 924(c)(3), an area in which the
Bureau has no special competence. See U.S. Dep't of the
Navy v. FLRA, 840 F.2d 1131, 1134 (3d Cir. 1988) ("no
deference is owed an agency's interpretation of a general
statute."). This case is thus unlike Reno v. Koray, 515 U.S.
50, 61 (1995), where the Court allowed "some" deference to
a Program Statement interpreting a statute the Bureau was
charged with administering.

Although we have not previously addressed application of
the "crime of violence" terminology to the notification
provision, we have encountered the phrase in other
contexts. In United States v. Williams, 892 F.2d 296, 304
(3d Cir. 1989), a pre-amendment guidelines case, we
observed that "possessing a gun while firing it. . . is a
crime of violence; possession without firing the weapon is
not." Whatever doubt may have existed following the
guidelines amendment as to the authority of this passing
remark in Williams6 was removed by United States v.
Joshua, 976 F.2d 844 (3d Cir. 1992). In Joshua, where the
indictment charged defendant with possession of afirearm
and ammunition, we invoked the terminology of section
924(e) and the guideline commentary when we stated,
"[t]here is no conduct alleged that posed `a serious potential
risk of physical injury to another.' " Id. at 856. Accordingly,
there was no `crime of violence' upon which to predicate
application of the Career Offender Act.

As we intimated in Roussos, interpretation of "crime of
violence" under the Sentencing Guidelines should bear
_________________________________________________________________

6. Stinson overruled the aspect of Williams that held that the felon in
possession offense could be a crime of violence under the Guidelines in
some circumstances. See Stinson, 508 U.S. at 39; see also Williams, 892
F.2d at 304.

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upon the meaning of the term in other settings as well. 122
F.3d at 163 n.5; see also Impounded (Juvenile R.G.), 117
F.3d 730, 738 n.13 (3d Cir. 1997). As the Doe Court
remarked, there is much to be said for attributing the same
meaning to the same or related words. See 960 F.3d at 225.

Our reading of the statutory language and the thoughtful
opinions of other Courts of Appeals dissuades us from
fracturing the meaning of section 924(c)(3)'s crime of
violence definition. We reach that determination despite the
Bureau's argument that it should be permitted to vary
interpretation of the definition because its aims embrace
different objectives than those of a sentencing judge.

Section 4042(b) requires dissemination of information
about prisoners released after serving terms for offenses
that Congress and the courts recognize as crimes of
violence -- those which traditionally "involve[ ] the
possibility of more closely related, active violence." United
States v. Doe, 960 F.2d 221, 225 (1st Cir. 1992). Nothing to
the contrary appears in the provision's legislative history. In
short, the Program Statement is not in accord with the
statutory provisions.

We hold, therefore, that possession of a firearm under 18
U.S.C. S 922(g) is not a crime of violence within the terms
of 18 U.S.C. S 4042(b), and that Program Statement No.
5162.02(7) is an impermissible interpretation of 18 U.S.C.
S 924(c)(3).

In its petition for panel rehearing, the government
accepts our reasoning with respect to section 922(g).
However, it contends that offenses under 18 U.S.C. S 922(o)
(unauthorized possession of a machine gun) are crimes of
violence. In support of its position, the government cites
United States v. Fortes, 141 F.3d 1, 7 (1st Cir. 1998)
(possession of a sawed-off shotgun is violent felony under
Armed Career Criminal Act); United States v. Hayes, 7 F.3d
144, 145 (9th Cir. 1993) (possession of unregistered sawed-
off shotgun is crime of violence under career offender
guideline); United States v. Dunn, 946 F.2d 615, 620-21
(9th Cir. 1991) (possession of unregistered sawed-off
shotgun is a crime of violence for purposes of sentence
enhancement); United States v. Huffhines, 967 F.2d 314,

16
320-21 (9th Cir. 1992) (conviction for possession of silencer
attached to a loaded gun qualifies as prior crime of violence
for sentence enhancement).

We will not reach the government's argument on the
merits because it has been waived. With commendable
candor, the petition for panel rehearing concedes that the
government "did not fully brief the issue on the merits."
Indeed, the brief in this Court did not mention the section
922(o) issue at any point, nor did it cite any one of the
cases now listed in the petition for panel rehearing.
Moreover, we have carefully searched the district court
record and find no reference to the argument the
government now advances.

As we have held on numerous occasions, we will not
consider on appeal issues which were not presented to the
district court. See e.g., Brenner v. Local 514, United
Brotherhood of Carpenters, 927 F.2d 1283, 1298 (3d Cir.
1991) (failure to brief an issue in court of appeals or raise
it in the district court constitutes a waiver of the
argument); see also United States v. Martinez, 96 F.3d 473,
475 (11th Cir. 1996) (per curiam) (issues or arguments
raised for the first time on petition for rehearing will not be
considered); Stephens v. Arrow Lumber Co., 354 F.2d 732,
734 (9th Cir. 1966) (citing Partenweederei Ms Belgrano v.
Weigel, 313 F.2d 423, 425 (9th Cir. 1962) ("It is sound
policy to require that all claims be presented to the trial
court, and not raised for the first time on appeal, nor, a
fortiori, as herein, in a petition for rehearing on appeal")). It
follows that we will not review matters that were not even
discussed in the briefs filed in this Court. Thus, for the
purposes of this appeal we determine that the violation of
18 U.S.C. S 922(o) is not a crime of violence as to petitioner
because the government has waived the issue.

Accordingly, the judgment of the district court will be
reversed. The Board may not subject petitioner to the
notification requirements because section 4042(b)(3)(B)
does not justify classification of his current offenses as
crimes of violence. We remand to the district court with
directions that it remand to the Bureau of Prisons for
reclassification of petitioner.

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A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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