                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT

                            _________________

                               No. 97-40205

                           (Summary Calendar)
                            _________________


           ROBERT BRUCE PARTON,


                                   Petitioner - Appellant,

           versus


           NEWMAN LEE CONNER, Warden,


                                   Respondent - Appellee.



            Appeal from the United States District Court
                  For the Eastern District of Texas
                            (5:96-CV-287)

                             November 5, 1997

Before DAVIS, EMILIO M. GARZA, and STEWART Circuit Judges.

PER CURIAM:*

     Robert Bruce Parton appeals the dismissal of his petition for
a writ of habeas corpus under 28 U.S.C. § 2241.         The district court

dismissed Parton’s petition without prejudice to allow him to

exhaust his administrative remedies.        We affirm.

                                     I

     While executing a search warrant, police officers seized drugs

and drug manufacturing paraphernalia from Parton’s home.                  In

     *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
addition, police discovered a semi-automatic pistol on top of a

television in the room where Parton was found.              Parton pleaded

guilty to interstate travel in aid of racketeering in violation of

18 U.S.C. § 1952 and to using and carrying a firearm during a drug

trafficking crime in violation of 18 U.S.C. § 924(c)(1).             He was

sentenced to a term of thirty months’ imprisonment on the section

1952 count and to a consecutive term of sixty months’ imprisonment

on the section 924(c) count.

     While incarcerated, Parton completed a 500-hour comprehensive

drug treatment program.     He then contacted Carl Gaconco, the head

of the prison’s residential drug abuse program and requested that

he be considered for a reduction in his sentence pursuant to 18

U.S.C. § 3621(e)(2)(B).      Section 3621(e)(2)(B) provides that the

Bureau of Prisons (“BOP”) may reduce, by up to one year, the

sentence of a prisoner who has been “convicted of a nonviolent

offense” if the prisoner has successfully completed an approved

drug education program.

     The statute does not define the phrase “nonviolent offense.”

However, 28 C.F.R. § 550.8 states that the sentence reduction in

section   3621   is   unavailable   to    an   inmate   whose   “offense   is

determined to be a crime of violence as defined in 18 U.S.C.

§ 924(c)(3).”    Section 924(c)(3) defines a 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.

                                    -2-
The   BOP    promulgated       Program   Statement    5162.02    to    guide   case

managers in the application of section 3621(e)(2)(B) to specific

cases.      Section 7 of the statement sets forth criminal offenses

that are “crimes of violence in all cases,” listing them by statute

and providing a brief parenthetical description. If the prisoner’s

offense matches one of the offenses listed, then the BOP will

automatically categorize it as a crime of violence without further

inquiry.       One of these inherently violent offenses is listed as

“Title 18 of the United States Code . . . § 924(c) (firearms used

in violent or drug trafficking crimes).”                Section 10 of the same

program statement, however, provides that offenses under 18 U.S.C.

§ 924, described as “penalties for firearms violations,” are

offenses “that may be violent depending on a variety of factors.”1

      Gaconco         deemed    Parton     ineligible     for    early      release

consideration because Parton’s conviction was classified as a crime

of violence in all cases under section 7 of the program statement.

Pursuant       to     administrative     policy,   Parton   made      an   informal

resolution attempt, repeating his request and arguing that section

10 of the program statement directed case managers to carefully

examine the particular facts of his section 924(c) conviction.

Parton included copies of transcripts from his original trial in

which    the        trial   judge   specifically     concluded     that    Parton’s



     1
            Congress criminalized two, distinct types of conduct under section
924(c)(1): use of a firearm and carrying a firearm during and in relation to a
drug trafficking offense. See Bailey v. United States, ___ U.S. ___, 116 S. Ct.
501, 133 L. Ed. 2d 472 (1995). Section 7 of the program statement references
only the “use” prong in the parenthetical description.

                                          -3-
particular section 924(c) conviction was not a crime of violence.

The BOP again denied Parton relief because he had been convicted of

“use and carried [sic] a firearm during a drug trafficking crime”

under   section     924(c)   and    that,     “according   to    the   operation

memorandum,” he was ineligible for the early release program.

Parton appealed to the warden and then to the BOP’s regional and

national counsels, who denied Parton’s request for early release on

the same ground.

     Parton then petitioned for a writ of habeas corpus in district

court, challenging the BOP’s interpretation of “nonviolent offense”

in section 3621(e)(2)(B).           The district court, while finding

Parton’s argument for relief “compelling,” nonetheless dismissed

his petition without prejudice to enable Parton to exhaust his

administrative remedies with respect to the distinction between the

“use”   and   “carry”   prongs     in    section   924(c).       Parton    timely

appealed.

                                         II

     Parton argues on appeal that he has already exhausted his

administrative remedies and that additional review would be futile

since the     BOP   mechanically     applies    section    7    of   the   program

statement to exclude all section 924(c)(1) offenses regardless of

the specific facts of the case.          A prisoner challenging a decision

of the BOP must exhaust his administrative remedies before seeking

habeas relief in federal court under 28 U.S.C. § 2241.                 Fuller v.

Rich, 11 F.3d 61,       62 (5th Cir. 1994).            “‘Exceptions to the

exhaustion    requirement     are       appropriate   where      the   available


                                        -4-
administrative        remedies   either    are   unavailable     or   wholly

inappropriate to the relief sought, or where attempt to exhaust

such remedies would itself be a patently futile course of action.’”

Id. (quoting Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th Cir.

1985)).   Exceptions to the exhaustion requirement are reserved for

extraordinary     circumstances,     and    Parton   has   the   burden     of

demonstrating the futility of further review.          Id.     We review the

district court’s dismissal of Parton’s petition for abuse of

discretion.     Id.

     Although the record establishes that Parton sought relief at

every possible level of appeal within the BOP, the district court

nonetheless dismissed Parton’s petition in order to allow him to

exhaust his remedies with respect to the distinction between “use”

and “carry” under section 924(c)(1) in light of the intervening

Supreme Court decision in Bailey v. United States, ___ U.S. ___,

116 S. Ct. 501, 133 L. Ed. 2d 472 (1995).        The district court noted

that section 7 of the program statement, listing offenses that are

violent in all cases, refers only to offenses involving the “use”

of a firearm during a drug trafficking offense, without reference

to the “carry” prong of the statute.          Parton pleaded guilty to an

indictment charging him with both using and carrying a firearm in

violation of section 924(c)(1).            After the BOP denied Parton’s

request for early release, however, the Supreme Court significantly

narrowed the applicability of the “use” prong of § 924(c).                Id.,

116 S. Ct. at 508.       The Court held that to demonstrate “use,” the

government must show that the defendant actively employed the


                                     -5-
firearm during and in relation to the drug trafficking offense.

Active employment “includes brandishing, displaying, bartering,

striking with, and most obviously, firing or attempting to fire, a

firearm,” but not mere possession or proximity to drugs or drug

proceeds.     Id.

         Because of this “active employment” requirement in Bailey, a

conviction under the “use” prong certainly satisfies the definition

in section 924(c)(3)(A) of “crime of violence” because an element

of the offense is “the use, attempted use, or threatened use of

physical     force   against   the   person    or    property    of   another.”

Therefore, it is not unreasonable for the BOP to conclude that a

prisoner      convicted   under    the   “use”      prong   is   automatically

ineligible for release under section 3621(e)(2)(B).2                  Sesler v.

Pitzer, 110 F.3d 569, 571 (8th Cir.), petition for cert. filed, ___

U.S.L.W. ___ (U.S. Jul. 7, 1997) (No. 97-5126).             Moreover, the BOP

may properly deny inmates eligibility for early release on the


     2
             Because Congress was silent concerning the proper definition of
“nonviolent offense,” the BOP, as the agency charged with administering the early
release program, has broad discretion to adopt any reasonable interpretation of
the term. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 843, 844, 104 S. Ct. 2778, 2782, 81 L. Ed. 2d 694 (1984) (“If Congress
has explicitly left a gap for the agency to fill, there is an express delegation
of authority to the agency to elucidate a specific provision of the statute by
regulation. . . . [A] court may not substitute its own construction of a
statutory provision for a reasonable interpretation made by the administrator
of an agency.”). Of course, interpretations found only in BOP program statements
are entitled to less deference than published regulations because they are not
promulgated subject to the rigors of notice and comment rulemaking under the
Administrative Procedure Act. Reno v. Koray, 515 U.S. 50, ___, 115 S. Ct. 2021,
2027, 132 L. Ed. 2d 46 (1995); see also Roussos v. Menifee, ___ F.3d ___, 1997
WL 401319, *5 (3d Cir. July 18, 1997); Downey v. Crabtree, 100 F.3d 662, 666 (9th
Cir. 1996). However, if the BOP’s interpretation of the statute is reasonable
and does not conflict with the language of section 3621(e)(2)(B) or section
923(c)(3), federal courts may not simply second-guess that interpretation. See
Roussos, 1997 WL 401319 at *5.



                                      -6-
basis of “use” convictions without individualized consideration.

See Jacks v. Crabtree, 114 F.3d 983, 985-86 (5th Cir. 1997) (citing

“well-established principle of administrative law that an agency to

whom Congress grants discretion may elect between rulemaking and ad

hoc   adjudication”    in   support   of    conclusion    that   BOP     may

categorically   deny   eligibility    for   early   release   pursuant    to

reasonable rule of general applicability).

      However, it is less clear that the BOP may properly classify

the offense of “carrying” a firearm during and in relation to a

drug trafficking crime as a violent offense.             Compare Davis v.

Crabtree, 109 F.3d 566, 569 (9th Cir. 1997) (holding that mere

possession of firearm during commission of drug trafficking offense

cannot be violent crime for purposes of section 3621(e)(2)(B)),

with Sesler, 110 F.3d at 572 (citing language of now-repealed 42

U.S.C. § 3796ii-2, passed as part of the same act of Congress as 18

U.S.C. § 3621(e)(2)(B), which defined “violent offender” as one who

“carried, possessed, or used a firearm or dangerous weapon” during

commission of offense).     This is an issue of first impression in

this circuit.

      We find that the district court was correct in determining

that judicial review of the BOP’s interpretation of “nonviolent

offense” in the policy statement is premature. In order to qualify

for relief under 28 U.S.C. § 2241, Parton must point to a violation

of the Constitution, laws, or treaties of the United States.

Parton alleges that the program statement violates federal law by

classifying all section 924(c) offenses as violent offenses.              On


                                  -7-
its face, however, the program statement categorically denies early

release only to those prisoners who actively “use” a firearm during

and in relation to a drug trafficking offense.                  As such, the

program statement does not violate federal law as written.

        Nor is it clear that the BOP’s program statement violates

federal law as applied to Parton’s conviction.           It appears from the

record that the facts to which Parton stipulated pursuant to his

guilty plea do not support a “use” conviction post-Bailey.              United

States v. William Carter, ___ F.3d ___, 1997 WL 374754 (5th Cir.

July 8, 1997) (“A court cannot accept a guilty plea unless there is

a sufficient factual basis for the plea.”); United States v. Hall,

110 F.3d 1155, 1160-61 (5th Cir. 1997) (vacating conviction based

on guilty plea where facts would not support conviction for “use”

where weapon found on floor in same room as defendant).3               Parton,

however, did not address the distinction between the “use” and

“carry” prongs of section 924(c)(1) before the BOP. Therefore, the

BOP has not had the opportunity to consider the proper post-Bailey

application of the program statement to the facts of Parton’s

conviction, nor do we know whether the BOP addresses “carry” under




    3
            The record on appeal does not indicate whether Parton has filed a 28
U.S.C. § 2255 petition in the Northern District of Texas, the district of his
conviction, to vacate his conviction under section 924(c)(1). Parton does not
attack the validity of his sentence in the instant appeal, nor would such a claim
be cognizable in a § 2241 habeas petition. A § 2255 petition filed in the
district court of conviction is the proper vehicle for collaterally attacking
errors in the conviction and sentence, while a § 2241 petition filed in the
district in which the petitioner is held in custody is the proper vehicle for
attacking the manner in which an otherwise valid sentence is executed. Ojo v.
INS, 106 F.3d 680, 683 (5th Cir. 1997). A § 2255 petition may be the more
appropriate avenue for relief under the facts of Parton’s case.

                                      -8-
section 7 or section 10 of the program statement.4                      Because

administrative relief may be available to Parton, we cannot say

that   the   district    court   abused     its   discretion   in   dismissing

Parton’s appeal without prejudice.

                                      III

       For the foregoing reasons, we AFFIRM the dismissal of Parton’s

petition without prejudice, and deny Parton’s motion for bail

pending appeal.




     4
            Of course, because Parton has not challenged the validity of his
conviction post-Bailey, he remains convicted under the “use” prong of section
924(c)(1). By noting the possible deficiencies in Parton’s conviction, we do not
imply that the BOP must look beyond the mere fact of conviction, only that, given
intervening Supreme Court precedent, it should be afforded the opportunity to do
so.

                                      -9-
