### 1998 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

8-5-1998 

# R o y ce v . H ahn

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 97-3266

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1998

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1998 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" R o y c e v . H ahn " (1998). 1998 D e cisio n s

. P a pe r 184.
h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1998/184Filed 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, WardenOPINION 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 o f a firearm by a previously convicted felon is a "crime of violence" that triggers an obligation of federal pr ison authorities to notify local authorities upon an inm ate's release. We answer that question in the negative an d correspondingly hold that a Bureau of Prisons Progr am 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, Pennsyl vania when he filed this habeas corpus petition. He had b een convicted in the United States District Court for t he Middle District of Florida on two counts -- possession of a firearm by a convicted felon in violation of 18 U.S.C. S 92 2(g)(1), and unlawful possession of a machine gun in violati on of 18 U.S.C. S 922(o)(1). Although there were two coun ts, only one gun was involved. Petitioner had previously bee n convicted in state court on three felony drug charg es and one count of second degree attempted burglary.

According to the presentence investigation report f or the current conviction, on February 10, 1993 Secret Ser vice agents investigating a trail of counterfeit money c ontacted petitioner at his business location. Petitioner den ied 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 a gents retrieved an unloaded RPB Industries M10, 9 millime ter machine gun from under the desk. They found no ammunition on the premises.

Following his conviction and incarceration, prison authorities classified petitioner as having committ ed

2"crimes of violence" pursuant to a definition of th at term

contained in the Federal Bureau of Prisons' interna l Program Statement No. 5162.02(7). As a result, he b ecame 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 restr ictions, and proposed residence.

Arguing that his offenses of conviction were not"cr imes of violence," petitioner objected to this classific ation. After his appeals through the administrative process prov ed unsuccessful, petitioner filed this habeas corpus a ction in
the United States District Court for the Western Di strict of Pennsylvania. He alleged that the Bureau exceeded i ts authority in classifying his offenses as "crimes of violence" and in creating Program Statement 5162.02. Petition er 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 colora ble allegation that his underlying conviction is invali d or that he is otherwise being denied his freedom from unlaw ful incarceration." Despite the petition's specific req uest, the magistrate judge did not rule on the declaratory re lief aspect. The district judge adopted the recommendati on 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 revi ew is plenary. United States ex rel. Schiano v. Luther, 9 54 F.2d 910, 912 (3d Cir. 1992). The pro se petition here c hallenges application of section 4042(b)'s notification requi rement,
but not the fact or duration of confinement. See Pr eiser v. Rodriquez, 411 U.S. 475, 484-85 (1973). Insofar as the district court found that it did not have subject m atter jurisdiction under traditional 28 U.S.C. S 2241 ana lysis, the ruling was correct.

3The 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 misla beling 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 vic e versa), vacated on other grounds, 117 S.Ct. 285 (19 96). This admonition is especially weighty in pro se litigati on. 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 actio n by characterizing his suit as a civil rights complaint . Where exhaustion is not implicated, however, the case sho uld not be dismissed until other legitimate avenues of reli ef are considered. Here, petitioner had already exhausted available administrative appeals and we conclude th at his petition should have been construed as an action se eking a declaratory judgment under 28 U.S.C. SS 1331 and 22 01.

Rather than remanding for consideration as such by the district court, we will address the merits of the p etition. We do so in the interest of judicial efficiency becaus e 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, 1 39 (3d Cir. 1986). Moreover, the issue is one frequently r ecurring
that should be addressed at this time.

II.

The notification provision, 18 U.S.C. S 4042(b), re quires the Bureau of Prisons to notify local law enforceme nt officials of the release of a prisoner who was "con victed of a crime of violence (as defined in section 924(c)(3 ))."1

___________________________________________________ ______________

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

4S 4042(b)(3)(B). In turn, 18 U.S.C. S 924(c)(3) def ines a

crime of violence as "an offense that is a felony a nd --

(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 substanti al risk that physical force against the person or propert y of another may be used in the course of committ ing

the offense."

The firearm possession violations do not require pr oof of "use, attempted use, or threatened use" as an eleme nt 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 (9t h Cir. 1993). We review the Bureau's interpretation of sub section (B) for consistency with the plain language of the statute

___________________________________________________ ______________

(b) "Notice of release of prisoners.-- (1) A t least 5 days prior to the date on which on a prisoner described in paragraph (3) is to be released on supervised release, . . . writte n notice of the release

. . . shall be provided to the chief law enforceme nt officer of the State and of the local jurisdiction in which the p risoner will reside.
Notice prior to release shall be provided by the Di rector of the Bureau of Prisons. . . . The notice requirements under this subsection do not apply in relation to a prisoner being protec ted under chapter 224.

(2) A notice under paragraph (1) shall discl ose --

(A) the prisoner's name;

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

the offense of which the prisoner was convicted; and

(C) any restrictions on conduct or other co ndi 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 paragrap h 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 sect i on 924(c)(3)).5and pertinent case law. Roussos v. Menifee, 122 F.3 d 159,

163-64 (3d Cir. 1997).

The term "crime of violence" is an important compon ent
of a number of statutes. In addition to the cross-r eference contained in the notification statute, the "crime o f 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, int er alia, a fifteen year mandatory minimum sentence to a felon with three prior convictions for violent fel onies; and

3) 18 U.S.C. S 3621(e)(2)(B), which by negat ive
inference excludes inmates who committed vio lent offenses from eligibility for a sentence red uction following completion of a substance abuse tr eatment

program.

Unfortunately, the courts and the Bureau have compl icated matters by using varying definitions of "crime of v iolence" and related terms without exploring the possibility and desirability of a more uniform approach.

The convictions at issue here are limited to firear m possession. This Court has yet to discuss whether t his
violation is a crime of violence under the notifica tion statute, although we have encountered the offense i n other settings. The Bureau, in its Program Statement No. 5162.02(7), takes the position that violations of t he firearm possession prohibitions are crimes of violence in a ll 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 Sent encing
Guidelines. Because that formulation has been the s ubject of substantial litigation in the federal courts and is used most frequently, we first examine the term in the g uidelines

context.

6Sentencing Guideline section 4B1.1 provides for

enhanced terms of incarceration for those convicted of a
"crime of violence." Such an offense is described i n section 4B1.2(a) as a felony that (1) has as an element "th e use, attempted use, or threatened use" of physical force or (2) is a "burglary of a dwelling, arson, or extortion, inv olves use of explosives, or otherwise involves conduct that p resents `a serious potential risk of physical injury to anothe r.' "

The original commentary to section 4B1.2 created a conflict among various Courts of Appeals over the q uestion of whether mere possession of a firearm by a felon was a crime of violence. See Stinson v. United States, 50 8 U.S. 36, 39 n.1 (1993) (citing United States v. Williams, 89 2 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 49 0 (8th Cir. 1991); United States v. O'Neal, 937 F.2d 1369 (9th Cir. 1990); and United States v. Walker, 930 F.2d 789 (1 0th Cir. 1991)). In 1992, the United States Sentencing Commi ssion amended the commentary to section 4B1.2 to clarify that " `[c]rime of violence' does not include the offens e 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 c ourts may not use the felon in possession offense as the predicate crime of violence for purposes of imposing the care er 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 posses sion by
a convicted felon is not a crime of violence. See a lso United States v. Sahakian, 965 F.2d 740, 742 (9th Cir. 199 2); United States v. Johnson, 953 F.2d 110, 115 (4th Ci r. 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 o f a firearm who has three previous convictions "for a v iolent felony." The statute defines "violent felony" as on e that "has

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

physical force" or is a burglary, arson, or extorti on, involves use of explosives, "or otherwise involves conduct t hat 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. 199 2), 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 cri minal provision of section 924(e). Judge Breyer, writing for the Court, held that the offense was not a "violent fel ony" under the statute, and commented that "simple possession of a firearm does not fit easily within the literal lang uage of the
statute." Id. at 224.

Observing that an expansive reading of the language would encompass crimes not meant to be included, Do e reasoned that the term "violent felony" evoked a "t radition of crimes that involve the possibility of more clos ely related,
active violence." Id. at 225. The Court also review ed the commentary to U.S.S.G. S 4B1.2, remarking that "bec ause uniform interpretation of similar language is in it self desirable, we believe we should give some legal wei ght 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 4 B1.2 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 s ection 924(e). In Oliver, the court noted that the two exp ressions in 18 U.S.C. S 924(e) and U.S.S.G. S 4B1.2 "are not conceptually distinguishable for purposes of the na rrow question raised in this appeal." 20 F.3d at 417. Do e, Oliver, and cases that reach a similar conclusion persuasiv ely

___________________________________________________ ______________

2. Guideline section 4B1.2 speaks of "burglary of a dwelling," whereas section 924(e)(2)(B)(ii) designates only "burglary. "

8explain why mere possession does not constitute a"c rime

of violence."

We note also that the relevant language in sections 924(c)(3) and 924(e) differ only in minor detail. S ection 924(c)(3)(B) speaks of a violation "that by its nat ure, involves a substantial risk that physical force aga inst the person or property of another may be used in the co urse of committing the offense." Section 924(e)(2)(B)(ii) r efers to "conduct that presents a serious potential risk of physical injury to another." The Court of Appeals for the Ni nth Circuit has concluded that possession of a firearm by a
felon is not a violent crime under either subsectio n. Downey v. Crabtree, 100 F.3d 662, 667 (9th Cir. 199 6). 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 substan ce abuse treatment program, created by the Violent Cri me 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 t he period of custody up to one year for any "prisoner convict ed of a nonviolent offense" who successfully completes a su bstance abuse treatment program.

The statute does not define "nonviolent offense." T he Bureau of Prisons originally adopted a regulation t hat disqualified inmates whose "current offense is dete rmined
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 additio n, the Bureau adopted Program Statement No. 5162.02 (as amended April 23, 1996), which excluded from participation those inmates convicted of firearm vi olations under specified subsections of 18 U.S.C. S 922, inc luding mere possession. In a number of cases, inmates curr ently serving terms for nonviolent offenses (including th e felonin-possession offense) contested their classificati on and argued that under 29 C.F.R. S 550.58 and Program Statement No. 5162.02, they were improperly being d enied
earned sentence reductions.

9The Bureau soon realized that its policy of denying

sentence reduction based on the questionable classi fication of certain violations as crimes of violence was gen erating conflicting decisions from the courts. In particula r, numerous cases addressed the Bureau's classificatio n of the felon in possession of a firearm offense.

To resolve the problem, the Bureau amended its regulation in October 1997 to delete the disqualifi cation
based on convictions for "a crime of violence as de fined in 18 U.S.C. S 924(c)(3)." 28 C.F.R. S 550.58. See als o 62 Fed. Reg. 53690 (Oct. 15, 1997). In relevant part, the c urrent regulation now provides:

(a) As an exercise of the discretion vested in the Director of the Federal Bureau of Prisons, t he following categories of inmates are not eligible for e arly release

. . .

(vi) [i]nmates whose current offense is a fe lony . . . (B) [t]hat "involved the carrying, possessio n, or use of a
firearm . . ."

28 C.F.R. S 550.58 (emphasis added). Thus, the curr ent regulation no longer classifies the felon in posses sion of a
firearm offense as a "crime of violence." This new discretionary approach has not yet been incorporate d into Program Statement 5162.02, but, by deleting the ref erence to "crime of violence," the Bureau effectively made that term irrelevant at least in the context of the drug abus e treatment statute.3 Cases analyzing the original re gulation are now mostly of historical interest. A brief revi ew 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 st ill includes that
classification.

4. Several district courts within this Circuit had concluded that a felon in possession offense was a crime of violence justi fying a denial of sentence reduction. Those opinions, however, preced ed the change in the Bureau's regulations and of course would not be bin ding on this court. See Piccolo v. Lansing, 939 F. Supp. 319 (D. N.J. 1 996); Paydon v. Hawk, 960 F. Supp. 867 (D. N.J. (1997); Snisky v. P ugh, 974 F. Supp. 817 (M.D. Pa. 1997).

10In the first of these cases, Downey v. Crabtree, 10 0 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 otherwis e a nonviolent felony (possession of 100 grams of methamphetamine) into a crime of violence.5

Downey explicitly rejected the government's argumen t "that Congress' omission of a definition for`nonvio lent offense' in S 3621(e)(2)(B) suggests an intention t o entrust defining that term entirely to the Bureau of Prison s' discretion." Id. at 666. While the Bureau properly used its rulemaking authority to promulgate a regulation def ining "nonviolent felony" as the converse of the section 924(c)(3) crime of violence definition, it could not reinterp ret the term contrary to the established authority built up arou nd 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 i n 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 fa cts than either Downey or Davis. In Jacks, although their cu rrent convictions (including a felon in possession offens e) were nonviolent, the inmates had previously been convict ed of concededly violent crimes. Id. at 984. In these circumstances, the Court held that the Bureau's interpretation which encompassed previous convictio ns was sustainable because the substance abuse statute did not specify whether "nonviolent felony" was limited onl y to
current convictions. Id. at 986.

___________________________________________________ ______________

5. Section 9 instructed Bureau officials to examine the "Specific Offense Characteristics" noted in the presentence investiga tion report that aid the district court in applying the guidelines. As n oted in Downey, the Bureau categorically denied early release credit fo r inmates convicted under 18 U.S.C. S 841(a) if they also received a se ntence enhancement for firearm possession. 100 F.3d at 665.

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

Court of Appeals for the Fifth Circuit upheld the B ureau's
denial of a sentence reduction to an inmate whose c urrent conviction included the crimes of felon in possessi on of a firearm and possession with intent to distribute ma rijuana. 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, th e court refused to interpret "crime of violence" under sect ion 924(c)(3) in light of the guidelines because senten ce 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 wou ld be "influenced by the career offender provisions of th e 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 du ring a predicate offense. Id. at 571-72. Sesler does not p reclude a finding that mere possession offenses are nonviolen t. Moreover, a few months later, the Eighth Circuit to ok 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 interpre tative 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 p revious convictions for robbery and aggravated assault chal lenged his ineligibility for reduction of his current sent ence for possession of heroin with intent to distribute. Bot h of his previous convictions, however, clearly qualified as crimes of violence under section 924(c)(3), the guidelines an d the Bureau's regulation. The panel concluded in that si tuation, as did Jacks, that the Bureau could look to the vio lent nature of previous convictions, rather than limitin g itself to consideration of the current offense only. Id. at 5 77.

In the other case, Roussos, an inmate was convicted of conspiracy to distribute narcotics. 122 F.3d at 160 . The

12sentencing court enhanced the period of incarcerati on

pursuant to U.S.S.G. S 2D1.1 because guns were foun d in
the inmate's house some distance from the arrest si te. Id. In light of the sentence enhancement, the Bureau, a s it did in Downey, denied eligibility for a sentence reduct ion following the inmate's successful completion of the substance abuse program. Id.

Roussos held that the offense of conspiracy to dist ribute
narcotics was not a crime of violence and that the provision of the Program Statement declaring ineligible all i nmates with a sentencing enhancement for firearms possessi on was unenforceable. Id. at 164. By focusing on enhanceme nt instead of the offense, the Bureau "converted a non violent crime into a violent one by means of a Program Stat ement that is inconsistent with the language of the statu te, and its own regulations." Id. at 163. We were persuaded by the reasoning in Downey that the Bureau's interpretatio n 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. Traditio nally, the Bureau has been given substantial discretion in administering rehabilitation programs and the subst ance abuse program falls within that category. To the ex tent, therefore, that Stiver permits the Bureau to use pr ior convictions as a factor in determining program elig ibility, it is consistent with that practice. In contrast, the notification statute does not serve a rehabilitative purpose. Th us, we are not constrained by Stiver and its discussion of the Bureau's discretion under the substance abuse progr am.

III.

It is against this rather complex background that w e come to the issue posed in the case before us -- wh ether a current conviction for possession of firearms by a felon is a "crime of violence" within the scope of the notific ation 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 vi olence
definition as it has evolved in the federal courts.

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

"Criminal Offenses That Are Crimes of Violence In A ll Cases. Any conviction for an offense listed below s hould be categorized as a `crime of violence.' a. Title 18, United States Code . . . S 922 . . . (g), (o). . . (firear ms violations)." The definition section of Program Statement No. 511 0.11, which covers "Notification of Release to State/Loca l Law Enforcement," in turn instructs that "clarifying in structions 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 regu lation to fill the gap, the notification statute does not lea ve interpretation to the Bureau. Rather, section 4042( b)(3)(B) refers to a specific provision defining of "crime o f violence" -- that contained in section 924(c)(3). Such an exp licit reference to a statutory definition demonstrates a Congressional intent to forestall interpretation of the term by an administrative agency and acts as a limitatio n on the agency's authority. See generally Greenwood Trust C o. v. Massachusetts, 971 F.2d 818, 827 (1st Cir. 1992) (incorporation by reference to another statute brin gs the statutory language and relevant case law into the incorporating statute).

The citation to section 924(c)(3) is unlike other d irections that appear in the notification statute. For exampl e, section 4042(b) requires the Bureau to advise local authori ties. Presumably, the method of notification is left to t he agency's discretion, e.g., mail, fax, hand-delivery , etc. Such flexibility in the means to be employed adds signif icance to the fact that Congress did not leave the crime of v iolence 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 Trus t Co., 971 F.2d at 827. Stinson, Doe, Johnson, Sahkian and Garcia-Cruz constituted a formidable body of author ity construing "crime of violence" and we may assume th at the lawmakers were aware of these precedents. Thus, the Bureau is bound not only by the language of the sta tutory definition, but also by its judicial interpretation s. Id. See

14also Dutton v. Wolpoff and Abramson, 5 F.3d 649, 65 5 (3d

Cir. 1993).

Unlike the situation in Stiver and Jacks, this case does not implicate a duly promulgated regulation that pu rports to establish the agency's statutory interpretation of an otherwise undefined term. Nor do we owe the Program Statement any deference. The notification statute a nd the Program Statement specifically refer to a provision of the Criminal Code, 18 U.S.C. S 924(c)(3), an area in wh ich 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 g eneral statute."). This case is thus unlike Reno v. Koray, 515 U.S. 50, 61 (1995), where the Court allowed "some" defer ence to a Program Statement interpreting a statute the Bure au was charged with administering.

Although we have not previously addressed applicati on of the "crime of violence" terminology to the notifica tion provision, we have encountered the phrase in other contexts. In United States v. Williams, 892 F.2d 29 6, 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 we apon is not." Whatever doubt may have existed following the guidelines amendment as to the authority of this pa ssing remark in Williams6 was removed by United States v. Joshua, 976 F.2d 844 (3d Cir. 1992). In Joshua, whe re the indictment charged defendant with possession of afi rearm and ammunition, we invoked the terminology of secti on 924(e) and the guideline commentary when we stated, "[t]here is no conduct alleged that posed `a seriou s potential risk of physical injury to another.' " Id. at 856. Accordingly, there was no `crime of violence' upon which to pred icate application of the Career Offender Act.

As we intimated in Roussos, interpretation of "crim e of violence" under the Sentencing Guidelines should be ar

___________________________________________________ ______________

6. Stinson overruled the aspect of Williams that he ld that the felon in possession offense could be a crime of violence und er the Guidelines in some circumstances. See Stinson, 508 U.S. at 39; se e also Williams, 892

F.2d at 304.

15upon the meaning of the term in other settings as w ell. 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 thoug htful opinions of other Courts of Appeals dissuades us fr om fracturing the meaning of section 924(c)(3)'s crime of
violence definition. We reach that determination de spite the Bureau's argument that it should be permitted to va ry interpretation of the definition because its aims e mbrace different objectives than those of a sentencing jud ge.

Section 4042(b) requires dissemination of informati on about prisoners released after serving terms for of fenses that Congress and the courts recognize as crimes of violence -- those which traditionally "involve[ ] t he possibility of more closely related, active violenc e." United States v. Doe, 960 F.2d 221, 225 (1st Cir. 1992). N othing 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 un der 18 U.S.C. S 922(g) is not a crime of violence within t he 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 crim es of violence. In support of its position, the governmen t cites United States v. Fortes, 141 F.3d 1, 7 (1st Cir. 19 98) (possession of a sawed-off shotgun is violent felon y under Armed Career Criminal Act); United States v. Hayes, 7 F.3d 144, 145 (9th Cir. 1993) (possession of unregistere d sawedoff shotgun is crime of violence under career offen der guideline); United States v. Dunn, 946 F.2d 615, 62 0-21 (9th Cir. 1991) (possession of unregistered sawed-o ff shotgun is a crime of violence for purposes of sent ence enhancement); United States v. Huffhines, 967 F.2d 314,

16320-21 (9th Cir. 1992) (conviction for possession o f silencer

attached to a loaded gun qualifies as prior crime o f 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 t hat the government "did not fully brief the issue on the me rits." 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 rehearin g. Moreover, we have carefully searched the district c ourt 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, Uni ted Brotherhood of Carpenters, 927 F.2d 1283, 1298 (3d Cir. 1991) (failure to brief an issue in court of appeal s or raise
it in the district court constitutes a waiver of th e argument); see also United States v. Martinez, 96 F .3d 473, 475 (11th Cir. 1996) (per curiam) (issues or argume nts 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 Belgr ano v. Weigel, 313 F.2d 423, 425 (9th Cir. 1962) ("It is s ound policy to require that all claims be presented to t he 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 n ot even discussed in the briefs filed in this Court. Thus, for the purposes of this appeal we determine that the viola tion 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 wil l be reversed. The Board may not subject petitioner to t he notification requirements because section 4042(b)(3 )(B) does not justify classification of his current offe nses as crimes of violence. We remand to the district court with
directions that it remand to the Bureau of Prisons for reclassification of petitioner.

17A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

18