1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-5-1998

Royce v. Hahn

Precedential or Non-Precedential:

Docket 97-3266

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Recommended Citation

"Royce v. Hahn" (1998). 1998 Decisions. Paper 184.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/184
Filed August 5, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-3266 

ZULIKEN S. ROYCE, 

 Appellant 

v. 

JOHN E. HAHN, Warden, 

 Appellee 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

(D.C. Civ. No. 96-cv-00262E) 

ON PANEL REHEARING 

Before: STAPLETON, ROTH, and WEIS, 

Circuit Judges. 

Filed: August 5, 1998 

 Zuliken S. Royce, Pro Se 

 Raybrook FCI 

 P.O. Box 902 

 Raybrook, New York, 12977-0300 

 Bonnie R. Schlueter, Esquire 

 Tina M. Oberdorf, Esquire 

 Office of the United States Attorney 

 633 United States Courthouse 

 Pittsburgh, PA 15219 

 Attorneys for Appellee 

 John Hahn, Warden 
OPINION OF THE COURT 

WEIS, Circuit Judge. 

After our original opinion in this case was filed, the 

government presented a petition for panel rehearing. We 

granted the petition, vacated the opinion, and now consider 

the appeal anew. 

The issue in this case is whether mere possession of a 

firearm by a previously convicted felon is a "crime of 

violence" that triggers an obligation of federal prison 

authorities to notify local authorities upon an inmate's 

release. We answer that question in the negative and 

correspondingly hold that a Bureau of Prisons Program 

Statement to the contrary represents an incorrect 

interpretation of the relevant notification statute. 

Petitioner Zuliken S. Royce was incarcerated in the

federal correctional institution at McKean, Pennsylvania 

when he filed this habeas corpus petition. He had been 

convicted in the United States District Court for the Middle 

District of Florida on two counts -- possession of a firearm 

by a convicted felon in violation of 18 U.S.C. S 922(g)(1), 

and unlawful possession of a machine gun in violation of 

18 U.S.C. S 922(o)(1). Although there were two counts, only 

one gun was involved. Petitioner had previously been 

convicted in state court on three felony drug charges and 

one count of second degree attempted burglary. 

According to the presentence investigation report for the 

current conviction, on February 10, 1993 Secret Service 

agents investigating a trail of counterfeit money contacted 

petitioner at his business location. Petitioner denied 

knowledge of counterfeiting activity and consented to a 

search of the premises. At that point, he announced that he 

had a "Mac 10" under his desk for protection. The agents 

retrieved an unloaded RPB Industries M10, 9 millimeter 

machine gun from under the desk. They found no 

ammunition on the premises. 

Following his conviction and incarceration, prison 

authorities classified petitioner as having committed 

 2 
"crimes of violence" pursuant to a definition of that term 

contained in the Federal Bureau of Prisons' internal 

Program Statement No. 5162.02(7). As a result, he became 

subject to 18 U.S.C. S 4042(b), which requires the Bureau 

to notify local law enforcement authorities of the imminent 

release of inmates who had committed violent crimes and 

provide their names, criminal history, parole restrictions, 

and proposed residence. 

Arguing that his offenses of conviction were not"crimes 

of violence," petitioner objected to this classification. After 

his appeals through the administrative process proved 

unsuccessful, petitioner filed this habeas corpus action in 

the United States District Court for the Western District of 

Pennsylvania. He alleged that the Bureau exceeded its 

authority in classifying his offenses as "crimes of violence" 

and in creating Program Statement 5162.02. Petitioner 

specifically asked the court to enter a declaratory judgment 

that he was "eligible for the non-application of 18 U.S.C. 

S 4042[b]." 

A magistrate judge recommended that the petition be

denied for lack of subject matter jurisdiction. She reasoned 

that, under the traditional test for habeas corpus 

jurisdiction, petitioner failed to "make any colorable 

allegation that his underlying conviction is invalid or that 

he is otherwise being denied his freedom from unlawful 

incarceration." Despite the petition's specific request, the 

magistrate judge did not rule on the declaratory relief 

aspect. The district judge adopted the recommendation and 

dismissed the petition. 

I. 

This court has jurisdiction to review the denial of a 

habeas petition under 28 U.S.C. S 1291 and our review is 

plenary. United States ex rel. Schiano v. Luther, 954 F.2d 

910, 912 (3d Cir. 1992). The pro se petition here challenges 

application of section 4042(b)'s notification requirement, 

but not the fact or duration of confinement. See Preiser v. 

Rodriquez, 411 U.S. 475, 484-85 (1973). Insofar as the 

district court found that it did not have subject matter 

jurisdiction under traditional 28 U.S.C. S 2241 analysis, the 

ruling was correct. 

 3 
The label placed on a petition, however, is not 

determinative. As stated in Graham v. Broglin, 922 F.2d 

379, 382-83 (7th Cir. 1991), if a petition asks for habeas 

corpus relief when petitioner "should have brought a civil 

rights suit, all he has done is mislabel his suit, and either 

he should be given leave to plead over or the mislabeling 

should simply be ignored." See also Fierro v. Gomez, 77 

F.3d 301, 305 (9th Cir. 1996) (a court may construe a 

section 1983 complaint as a habeas petition and vice 

versa), vacated on other grounds, 117 S.Ct. 285 (1996). This 

admonition is especially weighty in pro se litigation. See 

United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 

555 (3d Cir. 1969) (petition prepared by a prisoner may be 

inartfully drawn and should be read "with a measure of 

tolerance"). 

An inmate cannot avoid the exhaustion requirements 

that may be a prerequisite to a habeas corpus action by 

characterizing his suit as a civil rights complaint. Where 

exhaustion is not implicated, however, the case should not 

be dismissed until other legitimate avenues of relief are 

considered. Here, petitioner had already exhausted 

available administrative appeals and we conclude that his 

petition should have been construed as an action seeking a 

declaratory judgment under 28 U.S.C. SS 1331 and 2201. 

Rather than remanding for consideration as such by the 

district court, we will address the merits of the petition. We 

do so in the interest of judicial efficiency because there are 

no factual disputes, the issue presented is purely a 

question of law, and both parties have briefed the merits. 

See, e.g., Gibson v. Scheidemantel, 805 F.2d 135, 139 (3d 

Cir. 1986). Moreover, the issue is one frequently recurring 

that should be addressed at this time. 

II. 

The notification provision, 18 U.S.C. S 4042(b), requires 

the Bureau of Prisons to notify local law enforcement 

officials of the release of a prisoner who was "convicted of 

a crime of violence (as defined in section 924(c)(3))."1 

_________________________________________________________________ 

1. 8 U.S.C. S 4042 provides in pertinent part: 

 4 
S 4042(b)(3)(B). In turn, 18 U.S.C. S 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." 

The firearm possession violations do not require proof of 

"use, attempted use, or threatened use" as an element of 

the crime. Thus, subsection (A) has no application to the 

circumstances of this case; only subsection (B) is relevant. 

See United States v. Canon, 993 F.2d 1439, 1441 (9th Cir. 

1993). We review the Bureau's interpretation of subsection 

(B) for consistency with the plain language of the statute 

_________________________________________________________________ 

 (b) "Notice of release of prisoners.-- (1) At least 5 days prior to 

 the date on which on a prisoner described in paragraph (3) is to be 

 released on supervised release, . . . written notice of the release 

. . . 

 shall be provided to the chief law enforcement officer of the State 

 and of the local jurisdiction in which the prisoner will reside. 

Notice 

 prior to release shall be provided by the Director of the Bureau of 

 Prisons. . . . The notice requirements under this subsection do not 

 apply in relation to a prisoner being protected under chapter 224. 

 (2) A notice under paragraph (1) shall disclose -- 

 (A) the prisoner's name; 

 (B) the prisoner's criminal history, including a description of 

the 

 offense of which the prisoner was convicted; and 

 (C) any restrictions on conduct or other condi tions to the 

 release of the prisoner that are imposed by law, the sentencing 

 court, or the Bureau of Prisons or any other Federal agency. 

 (3) A prisoner is described in this paragraph if t he prisoner was 

 convicted of -- 

 (A) a drug trafficking crime, as that term i s defined in section 

 924(c)(2); or 

 (B) a crime of violence (as defined in secti on 924(c)(3)). 
 5 
and pertinent case law. Roussos v. Menifee, 122 F.3d 159, 

163-64 (3d Cir. 1997). 

The term "crime of violence" is an important component 

of a number of statutes. In addition to the cross-reference 

contained in the notification statute, the "crime of violence" 

concept is relevant to: 

 1) the United States Sentencing Guidelines, especi ally 

 when determining career criminal status and its 

 related sentence enhancement, U.S.S.G. S 4B1.1; 

 2) 18 U.S.C. S 924(e)(1), which assigns, inter alia, a 

 fifteen year mandatory minimum sentence to a felon 

 with three prior convictions for violent felonies; and 

 3) 18 U.S.C. S 3621(e)(2)(B), which by negat ive 

 inference excludes inmates who committed violent 

 offenses from eligibility for a sentence reduction 

 following completion of a substance abuse treatment 

 program. 

Unfortunately, the courts and the Bureau have complicated 

matters by using varying definitions of "crime of violence" 

and related terms without exploring the possibility and 

desirability of a more uniform approach. 

The convictions at issue here are limited to firearm 

possession. This Court has yet to discuss whether this 

violation is a crime of violence under the notification 

statute, although we have encountered the offense in other 

settings. The Bureau, in its Program Statement No. 

5162.02(7), takes the position that violations of the firearm 

possession prohibitions are crimes of violence in all 

instances. We assess the validity of that approach by first 

examining related contexts where the terminology is

relevant. 

(1.) Sentencing Guidelines 

The term "crime of violence" is defined in the Sentencing 

Guidelines. Because that formulation has been the subject 

of substantial litigation in the federal courts and is used 

most frequently, we first examine the term in the guidelines 

context. 

 6 
Sentencing Guideline section 4B1.1 provides for 

enhanced terms of incarceration for those convicted of a 

"crime of violence." Such an offense is described in section 

4B1.2(a) as a felony that (1) has as an element "the use, 

attempted use, or threatened use" of physical force or (2) is 

a "burglary of a dwelling, arson, or extortion, involves use 

of explosives, or otherwise involves conduct that presents `a 

serious potential risk of physical injury to another.' " 

The original commentary to section 4B1.2 created a 

conflict among various Courts of Appeals over the question 

of whether mere possession of a firearm by a felon was a 

crime of violence. See Stinson v. United States, 508 U.S. 36, 

39 n.1 (1993) (citing United States v. Williams, 892 F.2d 296 

(3d Cir. 1989); United States v. Goodman, 914 F.2d 696 

(5th Cir. 1990); United States v. Alvarez, 914 F.2d 915 (7th 

Cir. 1990); United States v. Cornelius, 931 F.2d 490 (8th 

Cir. 1991); United States v. O'Neal, 937 F.2d 1369 (9th Cir. 

1990); and United States v. Walker, 930 F.2d 789 (10th Cir. 

1991)). In 1992, the United States Sentencing Commission 

amended the commentary to section 4B1.2 to clarify that 

" `[c]rime of violence' does not include the offense of 

unlawful possession of a firearm by a felon." See U.S.S.G. 

S 4B1.2 Application Note 1. 

In Stinson, the Supreme Court confirmed the binding

effect of this amendment and held that "[f]ederal courts 

may not use the felon in possession offense as the predicate 

crime of violence for purposes of imposing the career 

offender provisions of U.S.S.G. S 4B1.1 . . .." 508 U.S. at 

47. Thus, in the sentencing guideline setting, an 

authoritative ruling holds that mere firearm possession by 

a convicted felon is not a crime of violence. See also United 

States v. Sahakian, 965 F.2d 740, 742 (9th Cir. 1992); 

United States v. Johnson, 953 F.2d 110, 115 (4th Cir. 

1991). 

(2.) Armed Career Criminal 

Under 18 U.S.C. S 924(e), a mandatory minimum 

sentence must be imposed on a felon in possession of a 

firearm who has three previous convictions "for a violent 

felony." The statute defines "violent felony" as one that "has 

 7 
as an element use, attempted use, or threatened use of 

physical force" or is a burglary, arson, or extortion, involves 

use of explosives, "or otherwise involves conduct that 

presents serious potential risk of physical injury." 

S 924(e)(2)(B). This definition uses the identical pertinent 

language found in Sentencing Guideline section 4B1.2.2 

In United States v. Doe, 960 F.2d 221 (1st Cir. 1992), the 

Court considered whether conviction under section 

922(g)(1) (possession of firearms by a felon) was a proper 

predicate offense for imposing the armed career criminal 

provision of section 924(e). Judge Breyer, writing for the 

Court, held that the offense was not a "violent felony" under 

the statute, and commented that "simple possession of a 

firearm does not fit easily within the literal language of the 

statute." Id. at 224. 

Observing that an expansive reading of the language

would encompass crimes not meant to be included, Doe 

reasoned that the term "violent felony" evoked a "tradition 

of crimes that involve the possibility of more closely related, 

active violence." Id. at 225. The Court also reviewed the 

commentary to U.S.S.G. S 4B1.2, remarking that "because 

uniform interpretation of similar language is in itself 

desirable, we believe we should give some legal weight to 

the Commission's determination" not to include the felon in 

possession offense as a crime of violence. Id. 

Two other Courts of Appeals agree that U.S.S.G. S 4B1.2 

and 18 U.S.C. S 924(e) should be read consistently with one 

another. In United States v. Garcia-Cruz, 978 F.2d 537, 

542-43 (9th Cir. 1992), and United States v. Oliver, 20 F.3d 

415, 416 (11th Cir. 1994) (per curiam), both Courts held, 

after examining Guidelines case law, that the felon in 

possession offense was not a violent felony under section 

924(e). In Oliver, the court noted that the two expressions 

in 18 U.S.C. S 924(e) and U.S.S.G. S 4B1.2 "are not

conceptually distinguishable for purposes of the narrow 

question raised in this appeal." 20 F.3d at 417. Doe, Oliver, 

and cases that reach a similar conclusion persuasively 

_________________________________________________________________ 

2. Guideline section 4B1.2 speaks of "burglary of a dwelling," whereas 

section 924(e)(2)(B)(ii) designates only "burglary." 

 8 
explain why mere possession does not constitute a"crime 

of violence." 

We note also that the relevant language in sections

924(c)(3) and 924(e) differ only in minor detail. Section 

924(c)(3)(B) speaks of a violation "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." Section 924(e)(2)(B)(ii) refers to 

"conduct that presents a serious potential risk of physical 

injury to another." The Court of Appeals for the Ninth 

Circuit has concluded that possession of a firearm by a 

felon is not a violent crime under either subsection. 

Downey v. Crabtree, 100 F.3d 662, 667 (9th Cir. 1996). We 

agree that the quoted variation in wording does not affect 

the classification of felon in possession offenses.

(3.) Substance Abuse Treatment Program 

The sentencing benefits available under the substance 

abuse treatment program, created by the Violent Crime 

Control and Law Enforcement Act of 1994, Pub. L. 

103-322, 108 Stat. 1796 (1994), also hinge upon the crime 

of violence concept. The statute, 18 U.S.C. S 3621(e)(2)(B), 

grants the Bureau of Prisons discretion to reduce the period 

of custody up to one year for any "prisoner convicted of a 

nonviolent offense" who successfully completes a substance 

abuse treatment program. 

The statute does not define "nonviolent offense." The 

Bureau of Prisons originally adopted a regulation that 

disqualified inmates whose "current offense is determined 

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

S 924(c)(3)." 28 C.F.R. S 550.58 (1996). In addition, the 

Bureau adopted Program Statement No. 5162.02 (as 

amended April 23, 1996), which excluded from 

participation those inmates convicted of firearm violations 

under specified subsections of 18 U.S.C. S 922, including 

mere possession. In a number of cases, inmates currently 

serving terms for nonviolent offenses (including the felonin-possession offense) contested their classification and 

argued that under 29 C.F.R. S 550.58 and Program 

Statement No. 5162.02, they were improperly being denied 

earned sentence reductions. 

 9 
The Bureau soon realized that its policy of denying

sentence reduction based on the questionable classification 

of certain violations as crimes of violence was generating 

conflicting decisions from the courts. In particular, 

numerous cases addressed the Bureau's classification of 

the felon in possession of a firearm offense. 

To resolve the problem, the Bureau amended its 

regulation in October 1997 to delete the disqualification 

based on convictions for "a crime of violence as defined in 

18 U.S.C. S 924(c)(3)." 28 C.F.R. S 550.58. See also 62 Fed. 

Reg. 53690 (Oct. 15, 1997). In relevant part, the current 

regulation now provides: 

 (a) As an exercise of the discretion vested in the 

 Director of the Federal Bureau of Prisons, the following 

 categories of inmates are not eligible for early release 

 . . . 

 (vi) [i]nmates whose current offense is a felony . . . 

 (B) [t]hat "involved the carrying, possession, or use of a 

 firearm . . ." 

28 C.F.R. S 550.58 (emphasis added). Thus, the current 

regulation no longer classifies the felon in possession of a 

firearm offense as a "crime of violence." This new 

discretionary approach has not yet been incorporated into 

Program Statement 5162.02, but, by deleting the reference 

to "crime of violence," the Bureau effectively made that term 

irrelevant at least in the context of the drug abuse 

treatment statute.3 Cases analyzing the original regulation 

are now mostly of historical interest. A brief review of those 

decisions, however, is in order.4 

_________________________________________________________________ 

3. The notification statute, in contrast, contains an explicit reference 

to 

"crime of violence." Thus, the Program Statement still includes that 

classification. 

4. Several district courts within this Circuit had concluded that a felon 

in possession offense was a crime of violence justifying a denial of 

sentence reduction. Those opinions, however, preceded the change in the 

Bureau's regulations and of course would not be binding on this court. 

See Piccolo v. Lansing, 939 F. Supp. 319 (D. N.J. 1996); Paydon v. 

Hawk, 960 F. Supp. 867 (D. N.J. (1997); Snisky v. Pugh, 974 F. Supp. 

817 (M.D. Pa. 1997). 

 10 
In the first of these cases, Downey v. Crabtree, 100 F.3d 

662 (9th Cir. 1996), the Court held that the Bureau was 

not permitted to use a sentence enhancement imposed

under the Guidelines to transform what was otherwise a 

nonviolent felony (possession of 100 grams of 

methamphetamine) into a crime of violence.5 

Downey explicitly rejected the government's argument 

"that Congress' omission of a definition for`nonviolent 

offense' in S 3621(e)(2)(B) suggests an intention to entrust 

defining that term entirely to the Bureau of Prisons' 

discretion." Id. at 666. While the Bureau properly used its 

rulemaking authority to promulgate a regulation defining 

"nonviolent felony" as the converse of the section 924(c)(3) 

crime of violence definition, it could not reinterpret the term 

contrary to the established authority built up around the 

section 924(c)(3) definition. See id. at 668. 

A subsequent opinion from the same Court reinforced

this approach. Davis v. Crabtree, 109 F.3d 566 (9th Cir. 

1997), held that the crime of conviction -- felon in 

possession of a firearm -- was a nonviolent offense and that 

the Bureau's characterization to the contrary could not be 

used to deny a sentence reduction. Id. at 567. 

Crabtree v. Jacks, 114 F.3d 983 (9th Cir. 1997), 

sustained the Bureau's decision to deny a sentence 

reduction, but presented substantially different facts than 

either Downey or Davis. In Jacks, although their current 

convictions (including a felon in possession offense) were 

nonviolent, the inmates had previously been convicted of 

concededly violent crimes. Id. at 984. In these 

circumstances, the Court held that the Bureau's 

interpretation which encompassed previous convictions was 

sustainable because the substance abuse statute did not 

specify whether "nonviolent felony" was limited only to 

current convictions. Id. at 986. 

_________________________________________________________________ 

5. Section 9 instructed Bureau officials to examine the "Specific Offense 

Characteristics" noted in the presentence investigation report that aid 

the district court in applying the guidelines. As noted in Downey, the 

Bureau categorically denied early release credit for inmates convicted 

under 18 U.S.C. S 841(a) if they also received a sentence enhancement 

for firearm possession. 100 F.3d at 665. 

 11 
In Venegas v. Henman, 126 F.3d 760 (5th Cir. 1997), the 

Court of Appeals for the Fifth Circuit upheld the Bureau's 

denial of a sentence reduction to an inmate whose current 

conviction included the crimes of felon in possession of a 

firearm and possession with intent to distribute marijuana. 

The Court concluded that section 3621(e) grants the

Bureau generalized discretion to determine when and how 

to reduce a sentence. Id. at 762. In particular, the court 

refused to interpret "crime of violence" under section 

924(c)(3) in light of the guidelines because sentence 

reduction and sentencing serve different ends. Id. at 

763-64. In contrast to Venegas, we have noted that an 

effort to determine whether the felon in possession of a 

firearm offense constitutes a crime of violence would be 

"influenced by the career offender provisions of the 

Sentencing Guidelines." Roussos, 122 F.3d at 163 n.5. 

Venegas found support in Sesler v. Pitzer, 110 F.3d 569 

(8th Cir. 1997), but that case spoke only to use of a 

firearm, or in dicta, to possession of a firearm during a 

predicate offense. Id. at 571-72. Sesler does not preclude a 

finding that mere possession offenses are nonviolent. 

Moreover, a few months later, the Eighth Circuit took issue 

with Venegas stating, "[h]aving adopted S 924(c)(3) as its 

definitional standard in its [original] regulation, the BOP is 

bound by the definition accorded it in the interpretative 

decisional case law." Martin v. Gerlinski, 133 F.3d 1076, 

1080 (8th Cir. 1998). 

We have twice considered the meaning of "nonviolent

felony" in the substance abuse program context. In Stiver v. 

Meko, 130 F.3d 574 (3d Cir. 1997), an inmate with previous 

convictions for robbery and aggravated assault challenged 

his ineligibility for reduction of his current sentence for 

possession of heroin with intent to distribute. Both of his 

previous convictions, however, clearly qualified as crimes of 

violence under section 924(c)(3), the guidelines and the 

Bureau's regulation. The panel concluded in that situation, 

as did Jacks, that the Bureau could look to the violent 

nature of previous convictions, rather than limiting itself to 

consideration of the current offense only. Id. at 577. 

In the other case, Roussos, an inmate was convicted of 

conspiracy to distribute narcotics. 122 F.3d at 160. The 

 12 
sentencing court enhanced the period of incarceration 

pursuant to U.S.S.G. S 2D1.1 because guns were found in 

the inmate's house some distance from the arrest site. Id. 

In light of the sentence enhancement, the Bureau, as it did 

in Downey, denied eligibility for a sentence reduction 

following the inmate's successful completion of the

substance abuse program. Id. 

Roussos held that the offense of conspiracy to distribute 

narcotics was not a crime of violence and that the provision 

of the Program Statement declaring ineligible all inmates 

with a sentencing enhancement for firearms possession was 

unenforceable. Id. at 164. By focusing on enhancement 

instead of the offense, the Bureau "converted a nonviolent 

crime into a violent one by means of a Program Statement 

that is inconsistent with the language of the statute, and its 

own regulations." Id. at 163. We were persuaded by the 

reasoning in Downey that the Bureau's interpretation of 

section 924(c)(3) ran counter to the Sentencing 

Commission's formulation of a `nonviolent offense' and 

corresponding judicial endorsement. Id. at 162-63. 

Stiver was careful to distinguish Roussos. Traditionally, 

the Bureau has been given substantial discretion in

administering rehabilitation programs and the substance 

abuse program falls within that category. To the extent, 

therefore, that Stiver permits the Bureau to use prior 

convictions as a factor in determining program eligibility, it 

is consistent with that practice. In contrast, the notification 

statute does not serve a rehabilitative purpose. Thus, we 

are not constrained by Stiver and its discussion of the 

Bureau's discretion under the substance abuse program. 

III. 

It is against this rather complex background that we 

come to the issue posed in the case before us -- whether a 

current conviction for possession of firearms by a felon is a 

"crime of violence" within the scope of the notification 

procedures of 18 U.S.C. S 4042(b). Necessarily, we address 

whether Program Statement No. 5162.02(7) contains a

correct interpretation of the statutory crime of violence 

definition as it has evolved in the federal courts.

 13 
Section (7) of Program Statement No. 5162.02 provides: 

"Criminal Offenses That Are Crimes of Violence In All 

Cases. Any conviction for an offense listed below should be 

categorized as a `crime of violence.' a. Title 18, United 

States Code . . . S 922 . . . (g), (o). . . (firearms violations)." 

The definition section of Program Statement No. 5110.11, 

which covers "Notification of Release to State/Local Law 

Enforcement," in turn instructs that "clarifying instructions 

to define a `crime of violence' are provided in the Program 

Statement [No. 5162.02]." 

Unlike the substance abuse provision, which failed to 

define "nonviolent offense" and thus allowed a regulation to 

fill the gap, the notification statute does not leave 

interpretation to the Bureau. Rather, section 4042(b)(3)(B) 

refers to a specific provision defining of "crime of violence" 

-- that contained in section 924(c)(3). Such an explicit 

reference to a statutory definition demonstrates a 

Congressional intent to forestall interpretation of the term 

by an administrative agency and acts as a limitation on the 

agency's authority. See generally Greenwood Trust Co. v. 

Massachusetts, 971 F.2d 818, 827 (1st Cir. 1992) 

(incorporation by reference to another statute brings the 

statutory language and relevant case law into the 

incorporating statute). 

The citation to section 924(c)(3) is unlike other directions 

that appear in the notification statute. For example, section 

4042(b) requires the Bureau to advise local authorities. 

Presumably, the method of notification is left to the 

agency's discretion, e.g., mail, fax, hand-delivery, etc. Such 

flexibility in the means to be employed adds significance to 

the fact that Congress did not leave the crime of violence 

definition similarly open-ended. 

Some weight is also due to the state of the law at the 

time Congress enacted S 4042(b). See Greenwood Trust Co., 

971 F.2d at 827. Stinson, Doe, Johnson, Sahkian and

Garcia-Cruz constituted a formidable body of authority 

construing "crime of violence" and we may assume that the 

lawmakers were aware of these precedents. Thus, the

Bureau is bound not only by the language of the statutory 

definition, but also by its judicial interpretations. Id. See 

 14 
also Dutton v. Wolpoff and Abramson, 5 F.3d 649, 655 (3d 

Cir. 1993). 

Unlike the situation in Stiver and Jacks, this case does 

not implicate a duly promulgated regulation that purports 

to establish the agency's statutory interpretation of an 

otherwise undefined term. Nor do we owe the Program

Statement any deference. The notification statute and the 

Program Statement specifically refer to a provision of the 

Criminal Code, 18 U.S.C. S 924(c)(3), an area in which the 

Bureau has no special competence. See U.S. Dep't of the 

Navy v. FLRA, 840 F.2d 1131, 1134 (3d Cir. 1988) ("no 

deference is owed an agency's interpretation of a general 

statute."). This case is thus unlike Reno v. Koray, 515 U.S. 

50, 61 (1995), where the Court allowed "some" deference to 

a Program Statement interpreting a statute the Bureau was 

charged with administering. 

Although we have not previously addressed application of 

the "crime of violence" terminology to the notification 

provision, we have encountered the phrase in other 

contexts. In United States v. Williams, 892 F.2d 296, 304 

(3d Cir. 1989), a pre-amendment guidelines case, we

observed that "possessing a gun while firing it. . . is a 

crime of violence; possession without firing the weapon is 

not." Whatever doubt may have existed following the

guidelines amendment as to the authority of this passing 

remark in Williams6 was removed by United States v.

Joshua, 976 F.2d 844 (3d Cir. 1992). In Joshua, where the 

indictment charged defendant with possession of afirearm 

and ammunition, we invoked the terminology of section 

924(e) and the guideline commentary when we stated,

"[t]here is no conduct alleged that posed `a serious potential 

risk of physical injury to another.' " Id. at 856. Accordingly, 

there was no `crime of violence' upon which to predicate 

application of the Career Offender Act. 

As we intimated in Roussos, interpretation of "crime of 

violence" under the Sentencing Guidelines should bear 

_________________________________________________________________ 

6. Stinson overruled the aspect of Williams that held that the felon in 

possession offense could be a crime of violence under the Guidelines in 

some circumstances. See Stinson, 508 U.S. at 39; see also Williams, 892 

F.2d at 304. 

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upon the meaning of the term in other settings as well. 122 

F.3d at 163 n.5; see also Impounded (Juvenile R.G.), 117 

F.3d 730, 738 n.13 (3d Cir. 1997). As the Doe Court

remarked, there is much to be said for attributing the same 

meaning to the same or related words. See 960 F.3d at 225. 

Our reading of the statutory language and the thoughtful 

opinions of other Courts of Appeals dissuades us from 

fracturing the meaning of section 924(c)(3)'s crime of 

violence definition. We reach that determination despite the 

Bureau's argument that it should be permitted to vary 

interpretation of the definition because its aims embrace 

different objectives than those of a sentencing judge. 

Section 4042(b) requires dissemination of information 

about prisoners released after serving terms for offenses 

that Congress and the courts recognize as crimes of

violence -- those which traditionally "involve[ ] the 

possibility of more closely related, active violence." United 

States v. Doe, 960 F.2d 221, 225 (1st Cir. 1992). Nothing to 

the contrary appears in the provision's legislative history. In 

short, the Program Statement is not in accord with the 

statutory provisions. 

We hold, therefore, that possession of a firearm under 18 

U.S.C. S 922(g) is not a crime of violence within the terms 

of 18 U.S.C. S 4042(b), and that Program Statement No. 

5162.02(7) is an impermissible interpretation of 18 U.S.C. 

S 924(c)(3). 

In its petition for panel rehearing, the government

accepts our reasoning with respect to section 922(g). 

However, it contends that offenses under 18 U.S.C. S 922(o) 

(unauthorized possession of a machine gun) are crimes of 

violence. In support of its position, the government cites 

United States v. Fortes, 141 F.3d 1, 7 (1st Cir. 1998) 

(possession of a sawed-off shotgun is violent felony under 

Armed Career Criminal Act); United States v. Hayes, 7 F.3d 

144, 145 (9th Cir. 1993) (possession of unregistered sawedoff shotgun is crime of violence under career offender 

guideline); United States v. Dunn, 946 F.2d 615, 620-21 

(9th Cir. 1991) (possession of unregistered sawed-off 

shotgun is a crime of violence for purposes of sentence 

enhancement); United States v. Huffhines, 967 F.2d 314, 

 16 
320-21 (9th Cir. 1992) (conviction for possession of silencer 

attached to a loaded gun qualifies as prior crime of violence 

for sentence enhancement). 

We will not reach the government's argument on the 

merits because it has been waived. With commendable

candor, the petition for panel rehearing concedes that the 

government "did not fully brief the issue on the merits." 

Indeed, the brief in this Court did not mention the section 

922(o) issue at any point, nor did it cite any one of the 

cases now listed in the petition for panel rehearing. 

Moreover, we have carefully searched the district court 

record and find no reference to the argument the 

government now advances. 

As we have held on numerous occasions, we will not 

consider on appeal issues which were not presented to the 

district court. See e.g., Brenner v. Local 514, United 

Brotherhood of Carpenters, 927 F.2d 1283, 1298 (3d Cir. 

1991) (failure to brief an issue in court of appeals or raise 

it in the district court constitutes a waiver of the 

argument); see also United States v. Martinez, 96 F.3d 473, 

475 (11th Cir. 1996) (per curiam) (issues or arguments 

raised for the first time on petition for rehearing will not be 

considered); Stephens v. Arrow Lumber Co., 354 F.2d 732, 

734 (9th Cir. 1966) (citing Partenweederei Ms Belgrano v. 

Weigel, 313 F.2d 423, 425 (9th Cir. 1962) ("It is sound 

policy to require that all claims be presented to the trial 

court, and not raised for the first time on appeal, nor, a 

fortiori, as herein, in a petition for rehearing on appeal")). It 

follows that we will not review matters that were not even 

discussed in the briefs filed in this Court. Thus, for the 

purposes of this appeal we determine that the violation of 

18 U.S.C. S 922(o) is not a crime of violence as to petitioner 

because the government has waived the issue. 

Accordingly, the judgment of the district court will be 

reversed. The Board may not subject petitioner to the 

notification requirements because section 4042(b)(3)(B) 

does not justify classification of his current offenses as 

crimes of violence. We remand to the district court with 

directions that it remand to the Bureau of Prisons for 

reclassification of petitioner. 

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A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 18