                                                 PUBLISH
          IN THE UNITED STATES COURT OF APPEALS
                FOR THE ELEVENTH CIRCUIT
                            -------------
                           No. 97-2129
                            -------------
                 D.C. Docket No. 3:96-cv-289/LAC


ROCKY W. BYRD,

                          Petitioner-Appellant,


  v.


DENNIS W. HASTY,

                          Respondent-Appellee.

                  --------------------------------------------
             Appeal from the United States District Court
                 for the Northern District of Florida
                  --------------------------------------------
                              (June 11, 1998)

Before CARNES and MARCUS, Circuit Judges, and MILLS*, Senior
District Judge.




  *
     Honorable Richard Mills, Senior U.S. District Judge for the Central
District of Illinois, sitting by designation.
                                    1
MILLS, Senior District Judge:

                               I. Background

      Byrd was convicted--following a jury trial in the United States District

Court for the Southern District of Mississippi--of drug violations: conspiracy

(Count I) and possession with intent to distribute cocaine (Count II). He was

acquitted on Count III, which charged use or carrying a firearm in relation to

a drug trafficking offense.

      At sentencing, Rocky Byrd received a two-level enhancement under

U.S.S.G. §2D1.1(b)(1) because a .22 caliber rifle was found in the residence

where the transaction took place. He was sentenced on Counts I and II to

concurrent terms of 97 months imprisonment and a 5 year term of supervised

release. He commenced serving his sentence on September 26, 1991 and is

scheduled for release on September 29, 1998. Byrd is presently incarcerated

at the Federal Prison Camp at Pensacola, Florida.

      While incarcerated at the Federal Correctional Center in Allenwood,

Pennsylvania, Byrd participated in the Drug Abuse Treatment Program. On

September 8, 1994, he successfully completed the 500 hour course of

therapeutic counseling and intensive treatment. He then applied to the

                                      2
Bureau of Prisons (“BOP”) for a reduction of up to one year off his sentence

in accordance with the terms of 18 U.S.C. §3621(e). The BOP denied the

sentence reduction because Byrd received a sentence enhancement under

U.S.S.G. §2D1.1(b)(1) for possession of a firearm, which the agency held

was a “crime of violence.”

      After exhausting his administrative remedies, Byrd filed a writ of

habeas corpus under 28 U.S.C. §2241, which was denied. This appeal

follows.

                            II. Standard of Review

      The district court’s denial of habeas corpus relief is reviewed de novo.

Chateloin v. Singletary, 89 F.3d 749, 752 (11th Cir. 1996). A district court’s

factual findings in a habeas corpus proceeding are reviewed for clear error.

Id. at 753.

                                 III. Discussion

      The Violent Crime Control and Law Enforcement Act provides:

              2) Incentive for prisoners’ successful completion of
              treatment program.--

                    (B) Period of custody.-- The period a prisoner
                    convicted of a nonviolent offense remains in

                                        3
                     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)(emphasis added). The Director of the BOP is

granted the authority to determine whether to award a reduction. 18 U.S.C.

§3621(e)(2)(A).

         Because the statute neither defines “nonviolent offense” nor specifies

the criteria for awarding a reduction, the BOP--in accordance with its

responsibility in administering 18 U.S.C. §3621--issued a regulation

providing the specific criteria. That regulation, 28 C.F.R. §550.582, excludes

from eligibility those persons whose current offense is a “crime of violence”

as defined at 18 U.S.C. §924(c)(3). Section 924(c)(3) 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

     2
         The version of 28 C.F.R. §550.58 in effect at the time of Byrd’s
application provides: [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 U.S.C. C.F.R. §550.58.


                                         4
      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 BOP has further defined the term “crime of violence” through Program

Statement 5162.02 (“P.S. 5162.02"), which is entitled “Definition of Term--

Crimes of Violence.”3 Section 9 of P.S. 5162.02 provides that a conviction

under 21 U.S.C. §841 or §846 is deemed a crime of violence if the sentencing

court increased the base offense level under the Sentencing Guidelines

pursuant to U.S.S.G. §2D1.1(b)(1) for possession of a dangerous weapon

during the commission of drug offense.

      In the instant case, the BOP denied Byrd’s request for a one-year

reduction in his sentence because Byrd received a two-level enhancement for

possession of a firearm during the commission of a drug offense. In

challenging the BOP’s determination, Byrd argues first that the P.S. 5162.02

is an interpretive rule because it was unilaterally adopted by the agency

without subjecting it to the rigors of the Administrative Procedure Act. Thus,


  3
   On October 9, 1997, the BOP promulgated a new Program Statement,
P.S. 5162.04, and also amended P.S. 5330.10
                                       5
it is only entitled to “some deference.”     Moreover, he says, the rule should

be invalidated by reason of noncompliance with the APA because the BOP

appears to have classified it as an interpretive rule when it has all the

characteristics of a substantive rule.

      Second, Byrd urges that the BOP’s interpretation of 18 U.S.C.

§3621(e)(B) is in conflict with the plain language of the statute and therefore

deference is not due. Specifically, Byrd says that the BOP ignored the clear,

plain and unambiguous language set forth in section 3621(e)(B) (“prisoner

convicted of a nonviolent offense”) and substituted in its place its definition

of “crime of violence.” Byrd claims this substitution is unreasonable and

contrary to congressional intent.

      Finally, Byrd argues that the meaning of 18 U.S.C. §3621(e)(2)(B) is

clear. First, the operative word in the statute is convicted. Second, the

statutory term “offense” reflects a specific violation of the criminal code

charged in the count of indictment. The sentencing court’s application of the

weapon enhancement is not an element of the offense of conviction but is an

element of the sentence.

      This issue is one of first impression in this Circuit. An examination of

                                         6
the treatment of this issue in other Circuits reveals that the majority of the

courts have determined that the BOP exceeded its authority in categorically

excluding from eligibility those inmates convicted of a nonviolent offense

who received a sentencing enhancement for possession of a firearm. See

Roussos v. Menifee, 122 F.3d 159 (3rd Cir. 1997)(holding that the BOP’s

interpretation is in conflict with the statute and the BOP’s own regulations);

Fuller v. Moore, No. 97-6390, 133 F.3d 914 (Table), (4th Cir. 1997)(BOP’s

interpretation in conflict with the statute); Bush v. Pitzer, 133 F.3d 455 (7th

Cir. 1997)(program statement adopts an overbroad definition of “violent

offense”); Martin v. Gerlinski, 133 F.3d 1076 (8th Cir. 1998)(the BOP

exceeded its statutory authority because its interpretation of the statute is in

conflict with the statute’s plain meaning); Downey v. Crabtree, 100 F.3d 662

(9th Cir. 1996)(BOP’s interpretation of the statute was in error); Fristoe v.

R.G. Thompson,       F.3d    , (April 28, 1998 10th Cir.)(BOP exceeded its

authority).

      Only the Fifth Circuit and district courts in the Sixth Circuit have taken

the position that the BOP’s program statements are permissible and

reasonable. See Venegas v. Henman, 126 F.3d 760 (5th Cir. 1997); Davis v.

                                        7
Beeler, 966 F. Supp. 483 (E.D. Ky 1997); LaPlante v. Pontesso, 961 F. Supp.

186 (E.D. Mich. 1997).

      Appellee urges the Court to align itself with the Fifth Circuit and affirm

the denial of the appellant’s petition for habeas relief. In the alternative,

Appellee asks that the Court remand the case to the district court with orders

that the matter be remanded to the BOP for appropriate review and action

under the pre-October 1997 rule (28 C.F.R. §550.58 (1996)), provided Byrd’s

drug conviction with its two-point sentence enhancement for possession of a

firearm is deemed a nonviolent crime.

      This Court will not adopt the reasoning of the Fifth Circuit as it is

wholly unpersuasive. Instead, we adopt the reasoning of those courts that

have found that the BOP exceeded its authority. The statute, 28 U.S.C.

§3621(e)(2)(B), speaks only in terms of conviction. Byrd was convicted of

conspiracy and possession with intent to distribute cocaine (violations of 21

U.S.C. §846 and 841(a)(1)), which are not crimes of violence. Although

Byrd received a sentencing enhancement under §2D1.1(b)(1) of the

Sentencing Guidelines, “[s]ection 3621(e)(2)(B) addresses the act of

convicting, not sentencing or sentence-enhancement factors.” Downey, 100

                                        8
F.3d at 668. As a result, we conclude that the BOP exceeded its statutory

authority when it categorically excluded from eligibility those inmates

convicted of a nonviolent offense who received a sentencing enhancement for

possession of a firearm. The BOP’s interpretation of the 18 U.S.C.

§3621(e)(2)(B) is simply in conflict with the statute’s plain meaning.

                                IV. Conclusion

      This Court concludes that the BOP cannot rely upon Byrd’s sentencing

enhancement to deny him eligibility for the sentence reduction. Accordingly,

we reverse the district court’s denial of habeas relief.

      Because the Bureau of Prisons has the discretion to grant early release,

we remand this case to the district court with instructions to refer the case to

the Bureau of Prisons for consideration in accordance with this opinion.

      We offer no opinion as to the applicability of the subsequent program

statements of October 9, 1997.

      REVERSED AND REMANDED.




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