                  United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT

                                  ___________

                                  No. 96-2185
                                  ___________

Everett Eugene Sesler,              *
                                    *
           Appellant,               *
                                    * Appeal from the United States
      v.                            * District Court for the
                                    * District of Minnesota.
Percy H. Pitzer, Sued as: Percy     *
Pitzer, Warden, Federal Prison      *
Camp, Duluth, Minnesota,            *
                                    *
           Appellee.                *
                               ___________

                    Submitted:    February 14, 1997

                         Filed:   April 7, 1997
                                  ___________

Before MAGILL, BEAM, and LOKEN, Circuit Judges.
                               ___________


MAGILL, Circuit Judge.

     In this petition for habeas corpus relief pursuant to 28 U.S.C. §
2241 (1994), Everett E. Sesler challenges the Bureau of Prisons’ (BOP)
decision under 18 U.S.C. § 3621(e)(2)(B) (1994) to deny him a one-year
reduction of his sentence.    The district court,1 adopting the report and
recommendation of the magistrate judge,2 denied Sesler’s petition for
habeas relief.   We affirm.




     1
      The Honorable Richard H. Kyle, United States District Judge
for the District of Minnesota.
     2
      The Honorable Raymond L. Erickson, United States Magistrate
Judge for the District of Minnesota.
                                        I.


     The facts of this case are not in dispute.         On March 11, 1993, Sesler
pled guilty to using a firearm during and in relation to a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1) (1994).         Sesler was sentenced
to sixty months of imprisonment followed by three years of supervised
release.


     While in prison, Sesler completed a BOP drug education program on
July 15, 1993.   Later, while still in prison, Sesler successfully completed
a comprehensive drug abuse program and a forty-hour drug education class
on March 3, 1994.       In addition, on March 28, 1994, Sesler received a
certificate   for   completing   the    twelve-month,    transitional    services,
aftercare component of his drug rehabilitation program.


     On September 13, 1994, Congress enacted 18 U.S.C. § 3621(e)(2)(B).
This section provides that:


     The period a prisoner convicted of a nonviolent offense remains
     in custody after successfully completing a [residential
     substance abuse] 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).        In light of this new provision, Sesler
petitioned the BOP to reduce his sentence by one year.             His petition was
denied by the BOP on the ground that he was not eligible for a sentence
reduction   under   §   3621(e)(2)(B)   because   he   was   not   convicted   of   a
nonviolent offense.


     After exhausting all possible administrative remedies, Sesler filed
a petition for a writ of habeas corpus pursuant to 28 U.S.C.




                                        -2-
§ 2241, seeking a reduction of his sentence.      He claimed that the BOP’s
interpretation of § 3621(e)(2)(B) was an arbitrary and capricious decision,
an abuse of discretion, and otherwise contrary to law.      He also claimed
that his rights under the Equal Protection Clause, the Due Process Clause,
and the Eighth Amendment had been violated.   The district court, adopting
the recommendation of the magistrate judge, denied the petition for a writ
of habeas corpus.


     Sesler appeals the decision of the district court.      He argues that
the district court erred in refusing to exercise judicial review and that
the BOP improperly interpreted § 3621(e)(2)(B).    Sesler, however, has not
raised his constitutional claims on appeal.        After Sesler filed this
appeal, he was released from prison and is currently serving his three-year
term of supervised release.


                                     II.


     As a threshold matter, we must consider whether this appeal is moot
now that Sesler has been released from prison.   See Calderon v. Moore, 116
S. Ct. 2066, 2067 (1996) (per curiam).        Sesler’s appeal is not moot
because, if Sesler’s term of imprisonment had been reduced by one year, his
supervised release would have commenced one year earlier.   As a result, if
successful here on appeal, Sesler will be entitled to a one-year reduction
of his term of supervised release.   See Mabry v. Johnson, 467 U.S. 504, 507
n.3 (1984) (“This [28 U.S.C. § 2254] case is not moot despite the fact that
respondent has been paroled.   Respondent remains in the ‘custody’ of the
State, and whether respondent must serve the sentence now under attack
consecutively to his prior sentences will affect the date at which his
parole will expire under state law.”




                                     -3-
(citations omitted)); McClain v. Bureau of Prisons, 9 F.3d 503, 505 (6th
Cir. 1993) (per curiam) (Considering a 28 U.S.C. § 2241 action to determine
whether the district court erroneously denied a prisoner credit on his
federal sentence for time incarcerated, the court held: “Petitioner has
been released from federal custody.              However, his supervised release dates
are affected by the erroneous computation.                  Thus, his claim is not moot.”);
Fraley v. United States Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993)
(per curiam) (Considering a 28 U.S.C. § 2241 action in which the prisoner
sought credit for time served under house arrest, the court held: “While
this appeal was pending, Fraley completed her term of imprisonment and was
released.    However, because our decision could affect her two-year term of
supervised release, this case is not moot.”).


                                            III.


     Sesler argues that the offense of which he was convicted, use of a
firearm     during   and   in    relation    to       a    drug   trafficking   crime,   is   a
“nonviolent offense” within the meaning of 18 U.S.C. § 3621(e)(2)(B), and
as a result, he is eligible for a one-year sentence reduction under §
3621(e)(2)(B).       We disagree.


     Under     the    plain     language    of    §       3621(e)(2)(B),   only   a   prisoner
convicted of a nonviolent offense is eligible for the § 3621(e)(2)(B) one-
year sentence reduction.           Congress, however, has not defined the term
nonviolent offense.           The BOP therefore formulated 28 C.F.R. § 550.58
(1996), which denies eligibility for a § 3621(e)(2)(B) sentence reduction
to “inmates whose 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.      Section
924(c)(3), in turn, defines a crime of violence as:




                                            -4-
     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. § 924(c)(3) (1994).   In order to promote uniform administration,
the BOP has also issued a Program Statement which specifically defines §
924(c)(1) violations as crimes of violence in all cases.     See BOP Program
Statement 5162.02 Definition of Term, “Crime of Violence” at § 7(a) (July
24, 1995), reprinted in Jt. App. at 48.     As a result, because Sesler was
convicted of a § 924(c)(1) offense, he was automatically disqualified from
being eligible for the § 3621(e)(2)(B) sentence reduction.


     For Sesler to have been convicted under § 924(c)(1), there must have
been sufficient evidence to show that he actively employed a firearm in
such a way that the firearm was “an operative factor in relation to the
predicate [drug trafficking] offense.”    Bailey v. United States, 116 S. Ct.
501, 505 (1995).    Active employment “includes brandishing, displaying,
bartering, striking with, and most obviously, firing or attempting to fire,
a firearm.”   Id. at 508.   Given the elements necessary for a § 924(c)(1)
conviction, we agree with the BOP’s conclusion that a § 924(c)(1) offense
is clearly not a nonviolent offense within the meaning of § 3621(e)(2)(B).
     Furthermore, both § 3621(e)(2)(B) and 42 U.S.C. § 3796ii-2 (1994)
were enacted as part of the Violent Crime Control and Law Enforcement Act
of 1994, Pub. L. No. 103-322, 108 Stat. 1796.           Consequently, it is
reasonable to construe terms common to both




                                    -5-
§ 3796ii-2 and § 3621(e)(2)(B) to have the same meaning.       See Gozlon-Peretz
v. United States, 498 U.S. 395, 407-08 (1991) (“It is not uncommon to refer
to other, related legislative enactments when interpreting specialized
statutory terms,” since Congress is presumed to have “legislated with
reference to” those terms.); see also Reno v. Koray, 115 S. Ct. 2021, 2025
(1995) (construing language of 18 U.S.C. § 3585(b) in conjunction with the
Bail Reform Act of 1984 because § 3585 and the Bail Reform Act deal with
the same subject matter).


     In       § 3796ii-2, though it has since been repealed,3 Congress defined
the term “violent offender” as “a person who is charged with or convicted
of an offense, during the course of which offense or conduct the person
carried, possessed, or used a firearm or dangerous weapon . . . .”              42
U.S.C.    §    3796ii-2   (emphasis   added).   Therefore,   because   Sesler   was
convicted of using a firearm during and in relation to a drug trafficking
offense, he would be a violent offender for purposes of § 3796ii-2.        Hence,
for purposes of § 3796ii-2, Sesler was not convicted of a nonviolent
offense.      Thus, § 3796ii-2 lends further support to the conclusion that,
under § 3621(e)(2)(B), the term nonviolent offense does not include §
924(c)(1) violations.4


     3
      See Omnibus Consolidated Rescissions and Appropriations Act
of 1996, Pub. L. No. 104-134, § 20112, 110 Stat. 1321.
     4
      The government also argues that there is clear and
convincing evidence that Congress has foreclosed judicial review
of the BOP’s interpretation of § 3621(e)(2)(B). See Abbott Lab.
v. Gardner, 387 U.S. 136, 141 (1967) (“[O]nly upon a showing of
‘clear and convincing evidence’ of a contrary legislative intent
should the courts restrict access to judicial review.”). In
support of this argument, the government points to 18 U.S.C. §
3625 (1994), which provides: “[t]he provisions of sections 554
and 555 and 701 through 706 of title 5, United States Code, do
not apply to the making of any determination, decision, or order
under [the subchapter in which § 3621 is found].” 18 U.S.C. §
3625. The government argues that, by calling off these
provisions of the Administrative Procedure Act, Congress has
clearly expressed its intention of foreclosing judicial review.

     According to the government, although this Court retains
limited jurisdiction to determine whether the BOP’s actions

                                         -6-
     For the foregoing reasons, we affirm the decision of the district
court.


BEAM, Circuit Judge, concurring in the opinion of the court, except for
Part II, and concurring in the result.


     A true copy.


           Attest:


                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




exceeded the agency’s statutory authority or violated the
Constitution, cf. Wajda v. United States, 64 F.3d 385, 388 (8th
Cir. 1995) (holding that federal courts retain jurisdiction to
determine whether the United States Parole Commission exceeded
its statutory authority or violated the Constitution
notwithstanding the federal courts’ lack of jurisdiction to
review substantive decisions), the BOP’s decision to deny Sesler
a one-year reduction of his sentence is unreviewable. Only
because we agree with the BOP’s conclusion that prisoners
convicted of § 924(c)(1) offenses are clearly ineligible for §
3621(e)(2)(B) sentence reductions do we not reach this issue.
See Secretary of the Navy v. Avrech, 418 U.S. 676, 677-78 (1974)
(per curiam) (“Assuming, arguendo, that the District Court had
jurisdiction under the circumstances of this case to review the
decision of the court-martial, our decision in Parker v. Levy,
417 U.S. 733 (1974), would require reversal of the Court of
Appeals’ decision on the merits of appellee’s constitutional
challenge to Art. 134. We believe that even the most diligent
and zealous advocate could find his ardor somewhat dampened in
arguing a jurisdictional issue where the decision on the merits
is thus foreordained. We accordingly leave to a future case the
resolution of the jurisdictional issue . . . .”).

                                  -7-
