* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34.1 (g); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 22 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WYMAN TAYLOR, Petitioner - Appellant, vs. UNITED STATES BUREAU OF PRISONS; KATHLEEN HAWK DAVIS; PAGE TRUE, Warden, USP - Leavenworth, Respondents - Appellees. No. 98-3176 (D.C. No. 96-CV-3520-RDR)

(D. Kan.)

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , and HENRY , Circuit Judges. **

Petitioner-Appellant Wyman Taylor, a pro se litigant, appeals the denial of his petition for a writ of habeas corpus pursuant t o 28 U.S.C. § 2241. He challenges the Bureau of Prisons (“BOP”) determinat ion that he is ineligible for a sentence reduction under 18 U.S.C. § 3621(e)(2)(B), a statutory provision- 2 -

allowing the BOP to reduce a nonviolent offender’s sentence by as much as one year for successful completion of a substance abuse program. On October 27, 1993, Mr. Taylor pled guilty to distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1) and possessio n of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). He wa s sentenced to a term of eightyseven months in prison. After completing the Compr ehensive Drug Abuse Program, he unsuccessfully sought reduction of his sentence under 18 U.S.C. § 3621(e)(2)(B). The BOP declined to reduce his sent ence on three grounds: (1) his conviction for being a convicted felon in possessio n of a firearm constituted a crime of violence; (2) his sentence enhancement forpossessing a firearm constituted a crime of violence; and (3) his prior conviction for aggravated assault made him ineligible for a sentence reduction. The district court denied his habeas petition on the first ground alone, holding that th e BOP did not exceed its statutory authority or violate the Constitution in defining possession of a firearm by a convicted felon as a “crime of violence.” Because the district court granted Mr. Taylor leave to proceed in forma pauperis, and neither the AEDPA’s certificate of ap pealability requirement, see 28 U.S.C. § 2253, nor the PLRA’s obligations under 28 U.S.C. §§ 1915(a)(2) & (b), apply to petitions under 28 U.S.C. § 2241, see McIntosh v. United States Parole
Comm ., 115 F.3d 809, 810-12 & n.1 (10th Cir. 1997), we proceed on the merits1 The BOP subsequently removed the reference to § 9 24(c)(3), and its

regulation now expressly excludes “[i]nmates whose current offense is a felony. . . [t]hat involved the carrying, possession, or use of a firearm” from eligibility for - 3 - and affirm. The Violent Crime Control and Law Enforcement Act o f 1994 (“VCCLEA”), Pub. L. No. 103-322, 108 Stat. 1824, 18 96, includes a provision under which “[t]he period a prisoner convicted of a nonviolentoffense remains in custody after successfully completing a [residentia l substance abuse] treatment
program maybe reduced by the Bureau of Prisons, but such redu ction 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 statute does n ot define “nonviolent offense.” However, the relatively sparse legislati ve history demonstrates that Congress intended sentence reductions to be “based on criteria . . . established and uniformly applied by the Bureau of Prisons.” H .R. Rep. 103-320, 103rd Cong., 1st Sess. (1993). The BOP excludes inmates convicted of violating 18 U.S.C. § 922(g)(1) from consideration under 18 U.S.C. § 3621(e)(2)(B) because it deems possession of a firearm by a felon to be a crime of violence. See 28 C.F.R. § 550.58 (1995), amended by28 C.F.R. § 550.58(a)(1)(vi)(B) (1998); BOP Program Statement 5162.02. At the time that the BOP denied Mr. Taylo r’s request, it had adopted a regulation defining “crime of violence” by referenc e to 18 U.S.C. § 924(c)(3). 1early release. See 28 C.F.R. § 550.58(a)(1)(vi)(B) (1998). Thus, the issue that

Mr. Taylor raises will not recur. - 4 - Under § 924(c)(3), a crime of violence is a felony that “(A) has as an element the use, attempted use, or threatened use of physical f orce against the person or property of another, or (B) . . . by its nature, in volves a substantial risk that physical force against the person or property of an other may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)( A) & (B). Program Statement 5162.02 specifically places § 922(g)(1) violations under the rubric of “Criminal Offenses that Are Crimes of Violence in All Cases.” We review a district court’s conclusions of law de novo and its factual findings for clear error in the context of a habeas corpus petition. See Davis v. Executive Dir. of Dep’t of Corrections , 100 F.3d 750, 756 (10th Cir. 1996), cert. denied , 117 S. Ct. 1703 (1997). Because the Administrati ve Procedure Act does not apply to 18 U.S.C. §§ 3621-3625, see § 3625, our jurisdiction is limited to determining whether the BOP exceeded its authority in construing § 3621(e)(2)(B), and not whether it erred in Mr. Tayl or’s particular case. See Fristoe v. Thompson , 144 F.3d 627, 630-31 (10th Cir. 1998). The Progr am Statement constitutes an informal interpretation of a statute, rather than a formal regulation; thus, it commands deference “only to th e extent that it is wellreasoned and has ‘power to persuade.’” Fristoe , 144 F.3d at 631 (quoting- 5 -

Southern Ute Indian Tribe v. Amoco Prod. Co. , 119 F.3d 816, 834 (10th Cir. 1997)). Mr. Taylor notes that the Program Statement contrav enes the wellestablished case law of several courts. See Davis v. Crabtree , 109 F.3d 566, 569 (9th Cir. 1997) (holding that the BOP exceeded its statutory authority in designating § 922(g)(1) violations as crimes of vio lence); Miller v. United States , 964 F. Supp. 15, 18 (D.D.C. 1997) (same). For inst ance, the Ninth Circuit requires the definition of violent crimes under § 3 621(e)(2)(B) to comport with its holding that the possession of a firearm by a felonis a nonviolent offense for the purposes of sentencing. See Davis , 109 F.3d at 569 (discussing Downey v. Crabtree , 100 F.3d 662 (9th Cir. 1996)). Disagreement between the BOP and a court outside th e Tenth Circuit does not render the BOP construction unreasonable, howev er. See Venegas v.
Henman , 126 F.3d 760, 764 (5th Cir. 1997), cert. denied , 118 S. Ct. 1679 (1998) (rejecting the Ninth Circuit view that the BOP exce eded its statutory authority in excluding § 922(g)(1) offenders from early release eligibility). Mr. Taylor correctly states that, under the Sentencing Guideli nes, possession of a firearm by a convicted felon is not a predicate offense for th e imposition of the career offender provision of USSG § 4B1.1. See USSG 4B1.2(a), cmt. (n.2) (defining “crime of violence” under § 4B1.1); Stinson v. Unit ed States , 508 U.S. 36, 47- 6 -

(1993). Yet, his reliance on the definition of cri mes of violence under the Sentencing Guidelines ignores the differing rationa le behind § 3621. See Venegas , 126 F.3d at 763. Congress intended § 3621 to offer the possibility o f early release as an incentive for inmates to receive substance abuse tr eatment. See H.R. Rep. 103- 320, 103rd Cong., 1st Sess. (1993). Based on the l inkage of substance abuse and criminality, the legislators believed, “the recidiv ism rate of substance abusers can be dramatically reduced” by residential treatment p rograms. Id . Thus, while the Sentencing Guidelines serve the punitive purpose of setting the prison term ex ante, § 3621 was designed to prevent recidivism onc e the inmate begins serving his sentence. See id. In keeping with § 3621's stated goal, it is reaso nable for the BOP to determine which offenses involve “a substantial risk . . . [of] physical force against the person or property of another, ” 18 U.S.C. § 924(c)(3)(B), and thus which offenders would pose a threat to the pub lic if released early. We hold that the BOP did not exceed its statutory authorityin excluding § 922(g)(1) offenders from the category of nonviolent inmates e ligible for a sentence reduction under § 3621(e)(2)(B). Neither does the denial of Mr. Taylor’s request forearly release offend the Constitution. A prisoner does not have a constitut ional right to the reduction of a valid sentence. See Greenholtz v. Inmates of Nebraska Penal & Correcti onal- 7 -

Complex , 442 U.S. 1, 7 (1979); Fristoe , 144 F.3d at 630. Because § 3621(e)(2)(B) states that the BOP mayreduce a nonviolent offender’s prison term, Mr. Taylor has no liberty interest in being release d before his sentence has expired. See Ohio Adult Parole Authority v. Woodard , 118 S. Ct 1244, 1247(1998) (Rehnquist, J., plurality opinion) (stat ing that clemency is a matter of grace committed to the discretion of the executive) ; Fristoe , 144 F.3d at 630 (“A statute which allows the decisionmaker to deny the requested relief within its unfettered discretion does not create a constitutio nally-recognized liberty interest.”). Consequently, Mr. Taylor lacks a vali d due process claim. Nor can he convince us that the BOP’s refusal to grant him ear ly release violates his right to equal protection, for although the Ninth Circuit ha s taken a different view of the BOP’s authority, “[i]t is elementary that decisions of one Court of Appeals cannot bind another.” Id. (quoting Castillo-Felix v. INS , 601 F.2d 459, 467 (9th Cir. 1979)). Finally, we note that, even if the BOP had exceededits discretion in finding that a § 922(g) violation is a crime of violence, M r. Taylor would not have been eligible for early release because he had a prior c onviction for aggravated assault.
See 28 C.F.R. § 550.58(a)(1)(iv). For the foregoing reasons, the district court’s den ial of Mr. Taylor’s petition for a writ of habeas corpus is AFFIRMED.- 8 - Entered for the Court
Paul J. Kelly, Jr. Circuit Judge98-3176, Taylor v. Bureau of Prisons

HENRY , Circuit Judge, concurring. I concur in the judgment. I am not convinced that, in defining a “crime of violence” to include possession of a firearm by a f elon, the BOP’s Program Statement 5162.02 is “well-reasoned and has power t o persuade,” Fristoe , 144 F.3d at 631 (quoting Southern Ute Indian Tribe v. A moco Prod. Co. , 119 F.3d 816, 834 (10th Cir. 1997)). Nevertheless, I agree with the majority that it was reasonable for the BOP to deny Mr. Taylor’s requestfor a sentence reduction on the basis of his prior conviction for aggravated as sault.