Hunnicutt v. Hawk

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 16 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

DENNY HUNNICUTT,

Petitioner-Appellant,

v. No. 99-6435

KATHLEEN HAWK,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 98-CV-1717-A)

Submitted on the briefs:

Denny Hunnicutt, Pro Se.

Before BALDOCK , KELLY , and HENRY , Circuit Judges.

PER CURIAM.

Petitioner-appellant Denny Hunnicutt, a federal inmate appearing pro se,

appeals the denial of his petition for a writ of habeas corpus filed pursuant to

28 U.S.C. § 2241. He filed suit against the warden, challenging the Bureau of
Prison’s (BOP) determination that he is ineligible for a sentence reduction under

18 U.S.C. § 3621(e)(2)(B). Because Mr. Hunnicutt is a federal prisoner, a

certificate of appealability is not required to appeal the district court’s denial.

See Montez v. McKinna , 208 F.3d 862, 867 (10th Cir. 2000); McIntosh v. United

States Parole Comm’n , 115 F.3d 809, 810 n.1 (10th Cir. 1997). The respondent-

appellee has not filed a brief. Granting Mr. Hunnicutt’s request to proceed in

forma pauperis, we affirm. 1

Background

Mr. Hunnicutt pled guilty on January 16, 1997, to conspiracy to possess

methamphetamine with intent to distribute, in violation of 21 U.S.C. § 846, and

conspiracy to commit an offense against the United States in violation of

18 U.S.C. § 371, specifically to knowingly and intentionally use and/or carry a

firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C.

§ 924(c). He was sentenced to a term of ninety-two months. He began a

residential drug abuse program (RDAP) in prison in November 1997. After

completing the program, he unsuccessfully sought reduction of his sentence under

§ 3621(e)(2)(B). Section 3621(e)(2)(B) allows the BOP to reduce an inmate’s

1
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)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.

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sentence by as much as one year if the inmate was “convicted of a nonviolent

offense” and successfully completes a substance abuse treatment program. See id .

The statute does not define the term “convicted of a nonviolent offense.”

Initial Determination of Ineligibility

The BOP initially determined Mr. Hunnicutt was ineligible under

§ 3621(e)(2)(B) because his sentence had been enhanced for possession of a

firearm during the commission of his offense. Mr. Hunnicutt then filed his

§ 2241 complaint alleging the BOP exceeded its statutory authority in light of this

court’s ruling in Fristoe v. Thompson , 144 F.3d 627 (10th Cir. 1998). In Fristoe ,

this court invalidated a previous BOP policy that categorically prohibited inmates

whose sentences had been increased by a firearm enhancement from being eligible

for early release under § 3621(e)(2)(B). We held that reliance on sentence

enhancements conflicts with the plain language of § 3621(e)(2)(B), which refers

to the offense for which the prisoner was convicted. See 144 F.3d at 631-32.

In response to Mr. Hunnicutt’s complaint, the respondent argued that

Fristoe was inapplicable because Mr. Hunnicutt began the RDAP in November

1997, after amendments in October 1997 to the regulation interpreting

§ 3621(e)(2)(B), 28 C.F.R. § 550.58 (1997), and BOP Program Statement

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No. 5162.04 (October 9, 1997). 2
These amended policies provide that, as an

exercise of the BOP’s discretion, an inmate whose sentence was enhanced for

possession of a firearm is ineligible for the sentence reduction of § 3621(e)(2)(B).

See Ward v. Booker , 202 F.3d 1249, 1253 (10th Cir. 2000), petition for cert. filed ,

68 U.S.L.W. 3023 (U.S. July 3, 2000) (No. 00-18).

The magistrate judge concluded that the newly amended regulation and

Program Statement did not alter the substance of what the BOP was

doing--denying § 3621 eligibility to prisoners based solely on a sentence

enhancement, rather than a conviction--and, therefore, that the BOP exceeded its

authority in relying on Mr. Hunnicutt’s sentence enhancement to deny him

eligibility. The magistrate judge recommended that Mr. Hunnicutt’s petition be

conditionally granted, subject to reconsideration by the BOP of Mr. Hunnicutt’s

eligibility. The magistrate judge correctly anticipated our decision in Ward , in

which we held the BOP’s revised policy still conflicts with the clear language of

§ 3621(e)(2)(B), and that the BOP’s attempt to couch it as merely an exercise of

its discretion did “not make it any less contrary to the statute.” Id. at 1256. 3

2
A BOP program statement is “an interpretative statement of position
circulated within [the] agency that serves to provide administrative guidance in
applying a then existing published rule.” Pelissero v. Thompson , 170 F.3d 442,
447 (4th Cir. 1999).
3
We note that the Supreme Court has granted certiorari in Lopez v.
Davis , No. 99-7504, 120 S. Ct. 1717 (Apr. 24, 2000) to consider the question of
(continued...)

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 Revised Determination of Ineligibility

The BOP reconsidered Mr. Hunnicutt’s eligibility under § 3621(e)(2)(B)

after the magistrate judge’s report issued. It concluded that Mr. Hunnicutt

remained ineligible for early release, but for a different reason: his § 371

conspiracy conviction was a crime of violence because it was based on a violation

of 18 U.S.C. § 924(c), conspiracy to use or carry firearms during and in relation

to the commission of a drug trafficking crime. The BOP’s new statement of

denial, which was filed with respondent’s objections to the magistrate judge’s

recommendation, stated that “the underlying offense is categorized as violent,

[thus], the conspiracy offense is violent as well.” R. Doc. 19, Ex. A.

Regulation § 550.58 expressly renders ineligible for early release any

felony inmate whose offense “involved the carrying, possession, or use of a

firearm. . . .” 28 C.F.R. § 550.58(a)(1)(vi)(B). Program Statement No. 5162.04,

in effect when Mr. Hunnicutt started the RDAP, lists a firearms conviction under

§ 924(c) as a crime of violence, and states, with respect to conspiracy convictions

under § 371, that “[i]f the underlying offense is categorized as violent [in the

Program Statement], then the . . . conspiracy offense is also violent.” R. Doc. 13,

Ex. F, at 4 and 7-8. The district court concluded that the BOP was within its

3
(...continued)
whether this amended regulation and Program Statement are an appropriate
exercise of the BOP’s discretion.

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statutory authority to deny Mr. Hunnicutt § 3621 eligibility because of his

conviction under § 371 for conspiracy to use or carry a firearm during and in

relation to a drug trafficking offense.

Analysis

“We review de novo the district court’s denial of habeas corpus relief.”

Martinez v. Flowers , 164 F.3d 1257, 1258 (10th Cir. 1998). Because the

Administrative Procedure Act does not apply to § 3621, we may not review

whether the BOP erred in Mr. Hunnicutt’s particular case, but may only review

whether the BOP exceeded its statutory authority in construing § 3621(e)(2)(B).

See Fristoe , 144 F.3d at 630-31. “An agency’s interpretation of a statute by

formal regulation or adjudication is entitled to deference, so long as the agency’s

interpretation is based upon a permissible construction of the statute.” Id. at 631.

“Where the agency’s interpretation of the statute is made informally, however,

such as by a ‘program statement,’ the interpretation is not entitled to [such]

deference, but will instead be considered only to the extent that it is

well-reasoned and has ‘power to persuade.’” Id.

On appeal, Mr. Hunnicutt argues that the BOP exceeded its statutory

authority because the BOP based its eligibility determination on underlying

offense conduct, rather than on the conviction itself. This argument misconstrues

the BOP’s decision, which was based on Mr. Hunnicutt’s § 371 conviction for

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conspiracy to use or carry a firearm during and in relation to a drug trafficking

offense, and was not based merely on underlying offense conduct, as was the case

in Fristoe and Ward . Mr. Hunnicutt does not dispute that the use or carrying a

firearm during and in relation to a drug trafficking offense in violation of

§ 924(c)(1) is a crime of violence. See Warren v. Crabtree , 185 F.3d 1018, 1021

(9th Cir. 1999) (BOP properly determined inmates convicted for use or carrying

of a firearm in relation to drug trafficking crime categorically ineligible for a

sentence reduction); Love v. Tippy , 133 F.3d 1066, 1069 (8th Cir. 1998) (same).

We have held that a § 371 conviction for conspiracy to commit a federal

crime of violence itself constitutes a “crime of violence,” and is, therefore

sufficient to support a conviction under 18 U.S.C. § 924(c)(1) for use or carrying

of a firearm during and in relation to a crime of violence. See United States. v.

Brown , 200 F.3d 700, 706 (10th Cir. 1999), cert. denied , 120 S. Ct. 1213 (2000)

and 120 S. Ct. 1706 (2000). We based this holding on the fact that “an overt act

in furtherance of the object of conspiracy [i]s an element of a conspiracy

conviction” under § 371. Id.

In order to qualify as a violent crime, a conviction need not involve the

actual use of force or violence; rather, it need only involve “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)(b). Because the elements of

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Mr. Hunnicutt’s conspiracy conviction included an overt act in furtherance of the

offense of using or carrying a firearm, we conclude that the BOP’s interpretation

of § 3621(e)(2)(B) was reasonable, and that it acted within its statutory authority,

in classifying a conviction under § 371 for conspiracy to use or carry a firearm

during and in relation to a drug trafficking offense as a crime of violence,

precluding eligibility under § 3621(e)(2)(B).

Mr. Hunnicutt also contends his due process rights were violated because

the BOP applied different § 3621(e)(2)(B) eligibility criteria upon reconsideration

than in its original eligibility determination. He relies on a Ninth Circuit decision

which held that unfavorable changes to BOP rules construing § 3621(e)(2)(B)

cannot be applied retroactively to prisoners who qualified for early release under

the former rules and who had started the substance abuse treatment program prior

to the change. See Cort v. Crabtree , 113 F.3d 1081, 1086-87 (9th Cir. 1997); but

see Royal v. Tombone , 141 F.3d 596, 601-02 (5th Cir. 1998) (disagreeing with

Cort and holding that aggrieved prisoner must show that he was actually entitled

to sentence reduction prior to issuance of new rule to avoid application of that

rule). Cort is easily distinguishable. Here, in contrast to the facts in Cort , the

amended regulation and Program Statement applied by the BOP upon

reconsideration were adopted prior to Mr. Hunnicutt’s entry into the RDAP, and

he was never told that he was eligible for the early release program. Thus,

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Mr. Hunnicutt did not lose any vested right, nor did he have any settled

expectation of eligibility.

Mr. Hunnicutt also contends there are insufficient facts in the record to

establish that his conspiracy conviction was based on the underlying offense of

using or carrying a firearm during or in relation to a drug trafficking offense. The

government and the district court relied upon Mr. Hunnicutt’s presentence report,

which states that he was charged with, and pled guilty to, knowingly and

intentionally conspiring “to commit an offense against the United States, that is:

to knowingly and intentionally use or carry firearms during and in relation to drug

crimes, in violation of 18 U.S.C. § 924(c), all in violation of 18 U.S.C. § 371.”

R. Doc. 13, Ex. E, at 3-4. The presentence report states that Mr. Hunnicutt gave a

dealer “a loaded semi-automatic handgun to use as self-protection or for

intimidation in the [drug] deliveries,” “was armed with a loaded .44 caliber

revolver” during some drug deliveries, and pointed a loaded firearm at a drug

buyer during one delivery. Id. at 5-6. The record does not include any objections

to the presentence report, and Mr. Hunnicutt did not dispute this evidence by

filing an objection to the magistrate judge’s report. We find this evidence

sufficient to support the district court’s finding that a § 924(c) firearms offense is

the underlying offense for his § 371 conspiracy conviction.

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 We briefly address Mr. Hunnicutt’s remaining allegations. The magistrate

judge did not err in recommending that the BOP reconsider its original basis for

denying Mr. Hunnicutt’s eligibility. 4
The district court did not err in considering

the new evidence concerning the BOP’s reconsideration, as it is permitted under

18 U.S.C. § 636(b) to receive additional evidence after the magistrate judge’s

recommendation. Mr. Hunnicutt claims to have filed a response to respondent’s

objections to the magistrate judge’s report and recommendation, although no

response appears in the record. However, the district court would not have erred

in not accepting or considering such a response because the local rules provide

that a party may not file a response to the other party’s objections to the

magistrate judge’s recommendation unless directed to do so by the court. See

W.D. Okla. Loc. Civ. R. 72.1.

The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.

4
In noting the BOP’s option of reconsidering Mr. Hunnicutt’s
eligibility, the magistrate judge noted that the “BOP more than likely could have
relied upon [Mr. Hunnicutt’s] concurrent conviction for conspiracy to use or carry
firearms during a drug trafficking offense . . . as a sound basis for excluding him
from consideration for a § 3621 sentence reduction.” R. Doc. 17, at 7. Although
Mr. Hunnicutt complains on appeal about the magistrate judge’s apparent
suggestion to the BOP, the record does not reflect that he filed any objections to
the magistrate judge’s report and recommendation.

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