                                                                                                                           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Precedential or Non-Precedential: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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                                 11
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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.



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