                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                          PUBLISH
                                                                     January 3, 2007
                    UNITED STATES CO URT O F APPEALS             Elisabeth A. Shumaker
                                                                     Clerk of Court
                                  TENTH CIRCUIT



 R OBER T D A LE M A RTIN ,

               Petitioner - A ppellant,
          v.                                           No. 06-1420
 HECTOR A. RIOS, W arden,

               Respondent - Appellee.



           A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                     FOR T HE DISTRICT OF COLORADO
                         (D.C. NO . 06-CV-1458-ZLW )


Submitted on the briefs: *

Robert D. M artin, pro se.

Troy A. Eid, United States Attorney, and John M . Hutchins, Assistant United
States Attorney, Denver, Colorado, for Respondent - Appellee.


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.


HA RTZ, Circuit Judge.




      *
       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.
      Robert D. M artin, a prisoner at the Federal Correctional Institution in

Florence, Colorado, challenges the determination by the Bureau of Prisons (BO P)

that he is ineligible for a sentence reduction under 18 U.S.C. § 3621(e)(2)(B).

W e conclude that being a felon in possession of a firearm, see § 18 U.S.C. 922(g),

is a felony “involv[ing] the carrying, possession, or use of a firearm” under 28

C.F.R. § 550.58(a)(1)(vi)(B), and that M r. M artin is accordingly ineligible for a

sentence reduction. W e therefore affirm.

      M r. M artin is serving a 27-month sentence for a conviction as a felon in

possession of a firearm under 18 U.S.C. § 922(g). On July 27, 2006, he filed an

application for habeas relief under 28 U.S.C. § 2241 in the United States District

Court for the District of Colorado. The district court denied his application.

Although he did not file a notice of appeal, we consider his “M otion for

Certificate of Appealability § 2253,” filed in the district court on September 27,

2006, to be the functional equivalent of a notice of appeal. See Rodgers v. Wyo.

Att’y Gen., 205 F.3d 1201, 1204 (10th Cir. 2000). W e have jurisdiction under

28 U.S.C. § 1291. See M cIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 810 n.1

(10th Cir. 1997) (“[A] certificate of appealability . . . is not required in order to

appeal a final order in a [federal prisoner’s] proceeding under 28 U.S.C.

§ 2241.”). W e review de novo the denial of M r. M artin’s § 2241 application. See

Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).




                                          -2-
      M r. M artin claims that the BOP improperly denied him a sentence

reduction under 18 U.S.C. § 3621(e)(2)(B), which states that “[t]he period a

prisoner convicted of a nonviolent offense remains in custody . . . may be

reduced” after successful completion of a substance-abuse treatment program. A s

the use of the word may indicates, the provision grants the BOP discretion to

determine w hich prisoners convicted of nonviolent offenses are eligible for a

sentence reduction. See Lopez v. Davis, 531 U.S. 230, 241 (2001). The BOP

exercised that discretion in adopting 28 C.F.R. § 550.58, which states that an

inmate is not eligible for early release, despite having been sentenced for a

nonviolent offense and having completed a substance-abuse program, if the

offense was a felony “[t]hat involved the carrying, possession, or use of a

firearm.” 28 C.F.R. § 550.58(a)(1)(vi)(B).

      This BOP regulation was upheld by the Supreme Court in Lopez, 531 U.S.

at 244. In Lopez the prisoner had been convicted of possession with intent to

distribute methamphetamine and had also possessed a firearm at the time of the

offense. See id. at 236. W hile incarcerated he received substance-abuse

treatment but was denied a sentence reduction under 28 C.F.R. § 550.58(a)(1)(vi).

See id. In affirming the BOP’s denial of a sentence reduction, the Court reasoned

that the BOP’s “denial of early release to all inmates who possessed a firearm in

connection with their current offense rationally reflects the view that such

inmates displayed a readiness to endanger another’s life.” Id. at 240.

                                         -3-
      M r. M artin appears to believe that the BOP’s denial of a sentence reduction

was based on a determination that he had been convicted of a violent offense.

But we need not address whether M r. M artin’s offense is a “nonviolent offense”

under 18 U.S.C. § 3621(e)(2)(B). He was ineligible for a sentence reduction even

if his offense was “nonviolent” because 28 C.F.R. § 550.58(a)(1)(vi)(B)

unambiguously excludes prisoners whose current offense is a felony “[t]hat

involved the carrying, possession, or use of a firearm.”

      M r. M artin misreads Lopez insofar as he claims that it does not apply when

the inmate’s offense involved mere possession of a firearm. As indicated above,

Lopez held that the BOP may categorically exclude prisoners under 28 C.F.R.

§ 550.58(a)(1)(vi) based on “possess[ion of] a firearm in connection with their

current offense.” 531 U.S. at 240. This is precisely the situation here.

M r. M artin cannot challenge the applicability of the regulation by relying on our

decision rejecting the regulation in Ward v. Booker, 202 F.3d 1249, 1256–57

(10th Cir. 2000); cf. Fristoe v. Thom pson, 144 F.3d 627, 632 (10th Cir. 1998)

(rejecting earlier BOP program statement), because that decision preceded Lopez

and is no longer good law on this point. Indeed, our judgment in Ward was

vacated by the Supreme Court in light of Lopez. See Booker v. Ward, 531 U.S.

1108 (2001).

      W e A FFIRM the district court’s judgment. W e also D ENY M r. M artin’s

M otion for Leave to Proceed on A ppeal W ithout Prepayment of Costs or Fees.

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