                         Revised May 14, 2001
               IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                             No. 00-10810



     RICHARD PAUL HENRIKSON,


                                             Plaintiff-Appellant,


           versus


     BOB GUZIK,


                                             Defendant-Appellee.


           Appeal from the United States District Court
                for the Northern District of Texas


                            April 24, 2001

Before GARWOOD, PARKER, and DENNIS, Circuit Judges.

GARWOOD, Circuit Judge:

     Petitioner-appellant Richard Paul Henrikson appeals the district

court’s upholding respondent-appellee Bureau of Prisons’s interpretation

of 18 U.S.C. § 4042(b), set forth in Program Statement 5110.12.      We

reverse.

                      Facts and Proceedings Below

     On October 13, 1977, Henrikson was convicted in Michigan state

court of arson.     On October 13, 1995, Henrikson pleaded guilty to

possession of unregistered firearms in violation of 26 U.S.C. § 5861(d).
On January 22, 1996, he was sentenced to seventy months in prison.

Henrikson is currently serving this seventy month term and is eligible

for release on May 8, 2001.

     18 U.S.C. § 4042(b) provides that if the prisoner was convicted of

a drug trafficking crime or crime of violence and is to be released on

supervised release, the Bureau “shall” provide written notice of the

release of the prisoner to the chief law enforcement officer of the

jurisdiction in which the prisoner will reside.1       The Bureau has

     1
      18 U.S.C. § 4042(b) provides, in its entirety:
     “(b) Notice of release of prisoners.
           (1) At least 5 days prior to the date on which a
     prisoner described in paragraph (3) is to be released on
     supervised release, or, in the case of a prisoner on
     supervised release, at least 5 days prior to the date on
     which the prisoner changes residence to a new jurisdiction,
     written notice of the release or change of residence 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. Notice concerning a
     change of residence following release shall be provided by
     the probation officer responsible for the supervision of the
     released prisoner, or in a manner specified by the Director
     of the Administrative Office of the United States Courts.
     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
     conditions 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 the
     prisoner was convicted of–
                (A) a drug trafficking crime, as that term is
     defined in section 924(c)(2); or
                (B) a crime of violence (as defined in section

                                   2
notified Henrikson that it intends to provide notification of his

release pursuant to section 4042(b). The Bureau does not contend that

Henrikson’s current conviction, for possessing unregistered firearms,

requires release notification. In Program Statement 5110.12, the Bureau

interprets section 4042(b) as requiring release notification if any

crime in the prisoner’s criminal history satisfies the criteria set

forth in section 4042(b)(3).2 The Bureau asserts, and Henrikson does

not dispute, that his 1977 arson conviction constitutes a crime of

violence. Henrikson contends that section 4042(b) only requires release

notification if the offense for which the prisoner is currently

incarcerated meets one of the section 4042(b)(3) criteria, and that,

therefore, the Bureau’s release notification policy as set forth in

Program Statement 5110.12 exceeds the Bureau’s statutory authority under


     924(c)(3)).”
     2
      Program Statement 5110.12 provides, in relevant part:
     “7. APPLICABILITY. Notification pursuant to this Program
     Statement is required on any Federal prisoner committed to
     the custody of the Bureau who is:
          a. To be released to Supervised Release, probation, or
     parole on or after September 13, 1994; and
          b. (1) whose current offense of conviction is a ‘drug
     trafficking crime’ or a ‘crime of violence’ as defined in
     Sections 6.a. or 6.b., or
             (2) whose criminal history as determined by staff
     in the exercise of their professional judgment includes a
     conviction for ‘drug trafficking’ or a ‘crime of violence’
     as defined in Sections 6.a. or 6.b.       For prior ‘drug
     trafficking crimes,’ staff shall consider only Federal
     convictions as a basis for notification. For ‘crimes of
     violence,’ staff shall consider both State and Federal
     convictions as a basis for notification.”
          Program Statement 5110.12 was superceded by Program
     Statement 5110.15 on August 30, 2000. None of the changes
     are relevant to Henrikson’s appeal.

                                   3
section 4042(b).3

     On July 19, 1999, Henrikson filed a petition to test the legality

of the Bureau’s release notification policy.4 On October 5, 1999, the

Bureau filed a motion to dismiss the petition pursuant to FED. R. CIV.

P. 12(b)(2), (5) and (6). On June 19, 2000, the magistrate judge issued

his report, which found that under Chevron U.S.A. Inc. v. Natural

Resources Defense Counsel, Inc., 104 S.Ct. 2778 (1984), and Stinson v.

United States, 113 S.Ct. 1913 (1993), Program Statement 5110.12 must be

given “controlling weight” because it is a permissible construction of

the statute and recommended that the motion to dismiss be granted. On

June 28, 2000, Henrikson timely filed objections thereto. On July 12,

2000, the district court adopted the magistrate’s report.

                              Discussion

I.   Deference to Program Statement 5110.12

     Chevron requires that if a statute is silent or ambiguous as to the

particular issue in question, federal courts must defer to an

administrative agency’s resolution of that question if such resolution


     3
      Henrikson advances other reasons as to why notification should not
be required in his case. Because these arguments are meritless, we do
not address them.
     4
      This petition purported to be pursuant to 28 U.S.C. § 2241(c)(3).
However, because Henrikson is not challenging the fact or duration of
his confinement, subject matter jurisdiction is not present under §
2241. The magistrate judge recognized that Henrikson had exhausted his
administrative remedies and that where the exhaustion requirement is not
implicated habeas petitions may be treated as requests for declaratory
judgment pursuant to 28 U.S.C. §§ 1331 and 2201. See Royce v. Hahn, 151
F.3d 116, 118 (3rd Cir. 1998). The Bureau has not challenged this
determination of the magistrate judge.

                                   4
is predicated upon a permissible interpretation of the statute the

agency is charged with administering. Chevron, 104 S.Ct. at 2781-82.

As mentioned, the district court, in adopting the magistrate’s report,

found that Program Statement 5110.12 was entitled to Chevron deference

and that the Program Statement’s interpretation of section 4042(b) was

permissible and, therefore, controlling.

     In affording Chevron deference to Program Statement 5110.12, the

district court erred. The Supreme Court and this Court have made clear

that interpretations of statutes not arrived at by “formal adjudication

or notice-and-comment rulemaking”, e.g. opinion letters, “policy

statements, agency manuals, and enforcement guidelines, all of which

lack the force of law–do not warrant Chevron-style deference.”

Christensen v. Harris County, 120 S.Ct. 1655, 1662 (2000).        These

interpretations are entitled to respect, but only to the extent that

they have the “power to persuade”. Id. (quoting Skidmore v. Swift &

Co., 323 U.S. 134, 140 (1944)). See also Reno v. Koray, 115 S.Ct. 2021,

2027 (1995) (observing that a Bureau of Prisons Program Statement is

entitled to “some deference” if it represents a permissible construction

of the statute); Bussian v. RJR Nabisco, Inc., 223 F.3d 286, 296 (5th

Cir. 2000) (quoting Christensen for the proposition that interpretations

that lack the force of law are only entitled to respect according to

their “power to persuade”).5


     5
      We are aware that in Royal v. Tombone, 141 F.3d 596, 600 (5th Cir.
1998), a panel of this Court, citing Koray, stated that Program

                                   5
II.   Interpretation of 18 U.S.C. § 4042(b)

      When interpreting a statute, the starting point is the statute’s

text. Reich v. Arcadian Corp., 110 F.3d 1192, 1195 (5th Cir. 1997)

(quoting Estate of Cowart v. Nicklos Drilling Co., 112 S.Ct. 2589, 2594

(1992)).   The meaning of a particular word or phrase “cannot be

determined in isolation, but must be drawn from the context in which it

is used.” Arcadian, 110 F.3d at 1195-96 (quoting Deal v. United States,

113 S.Ct. 1993, 1996 (1993). Therefore, a term is not ambiguous if,

although subject to different interpretations in isolation, “all but one

of the meanings is ordinarily eliminated by context.” Id. If possible,

the statute should be construed such that “every word has some operative

effect.” Arcadian, 110 F.3d at 1196 (quoting United States v. Nordic

Village, Inc., 112 S.Ct. 1011, 1015 (1992)). It is important to “look

to the structure and language of the statute as a whole.” Arcadian, 110

F.3d at 1196 (quoting National R.R. Passenger Corp. v. Boston and Maine

Corp., 112 S.Ct. 1394, 1401 (1992). With these principles in mind, we

turn to the interpretation of section 4042(b).

      First, section 4042(b)(1) explains the release notification scheme.

Initial notification is only required if a person described in section



Statements will be upheld if they represent a permissible construction
of the statute. We would likely be bound by this aspect of Royal were
it not for the intervening decision of the Supreme Court in Christensen,
which made clear that interpretations like Program Statements, even if
abstractly permissible, are not controlling and therefore do not bind
this Court as a permissible interpretation entitled to Chevron deference
would. We also note this Court’s application of Christensen in Bussian.

                                    6
4042(b)(3) is to be released on supervised release. Notification of a

subsequent change of residence is only required while the prisoner

remains on supervised release. The notification requirement ends when

the prisoner’s entire sentence for the current conviction, including the

term of supervision, is served. The notification requirement, running

as it does with the supervised release portion of the sentence for the

current conviction, seems virtually part of that sentence. It seems

illogical to impose the notification requirement to run with the

sentence for a crime that does not itself trigger notification.

     Second, and more significantly, Henrikson correctly observes that

language in section 4042(b)(2), which describes the information the

notification must contain, supports his interpretation of section

4042(b)(3).    Section 4042(b)(2)(B) requires disclosure of “the

prisoner’s criminal history, including a description of the offense of

which the prisoner was convicted.” Clearly, Congress intended “offense

of which the prisoner was convicted” to refer to the current conviction,

as it was obviously clarifying that it intended “criminal history” to

include the current conviction.        No other reading of section

4042(b)(2)(B) is reasonable. We agree with Henrikson that the similar

language in the next paragraph, section 4042(b)(3), “if the prisoner

was convicted of”, also refers only to the current conviction.

     Finally, the language “was convicted of” in section 4042(b)(3)

seems implicitly to refer to a single event–the current conviction. If

Congress intended for more than the current conviction to be



                                   7
scrutinized, words such as “if the prisoner has been convicted of”,

liekly would have been employed.

     We do not believe that section 4042(b)(3) is ambiguous or that in

this section Congress has explicitly or implicitly left a gap in which

the Bureau is free to regulate. Even applying the “some deference”

standard, we do not find the Bureau’s construction of section 4042(b)

in this respect as set forth in Program Statement 5110.12 to be a

permissible, much less a persuasive, one.       An examination of the

statute’s text and overall scheme manifest that Congress was only

requiring the Bureau to notify if the prisoner’s current conviction was

for a crime of violence or a drug trafficking crime.     We hold that,

because the Bureau does not contend that Henrikson’s current conviction

is for a crime of violence or a drug trafficking crime, section 4042(b)

does not require the Bureau to notify state and local law enforcement

of Henrikson’s release.6


     6
      The Bureau’s consistent position, from its first informing
Henrikson of its intention to give the § 4042(b) notification, through
the administrative proceedings consequent on Henrikson’s objection
thereto, and in all proceedings in the district court and in this Court,
has been that it intends to give the notification because it is required
to do so by § 4042(b),which is concedely mandatory, and the Bureau has
never suggested that it intends to, or has determined to, give
notification to state and/or local law enforcement respecting Henrikson
on any other basis or for any other reason, or that it would give such
notification if not required to do so by § 4042(b). And, the Bureau’s
only position in this court has been that Henrikson is not entitled to
relief because § 4042(b) required it to give the notification. The
plain inference from all this is that the Bureau does not intend to give
the notice if we hold it is not within § 4042(b). We hold it is not
within § 4042(b). Consequently no question has been presented, and we
do not address, whether Henrikson would have any general constitutional
or statutory right to prevent the Bureau from notifying state and/or

                                   8
                             Conclusion

     For the reasons stated, we hold that the Bureau’s construction of

section 4042(b) is incorrect in the respect noted and the district

court’s judgment upholding the Bureau’s interpretation of section

4042(b) in this regard is accordingly REVERSED.

                              REVERSED




local law enforcement.

                                  9
