1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-18-1997

Roussos v. Menifee

Precedential or Non-Precedential:

Docket 97-7011

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Recommended Citation

"Roussos v. Menifee" (1997). 1997 Decisions. Paper 160.

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1 

UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 97-7011 

 ___________ 

 VICTOR M. ROUSSOS, 

 Appellant 

 

v. 

FREDERICK MENIFEE, WARDEN, 

Appellee 

_______________________________________________ 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

D.C. Civil Action No. 96-cv-01675 

___________________ 

Argued July 8, 1997 

Before: BECKER and SCIRICA, Circuit Judges and KELLY, District 

Judge* 

(Filed July 18, 1997) 

PETER ST. PHILLIP, ESQUIRE (ARGUED) 

135 So. 19th Street, Suite 200 

Philadelphia, PA 19103 

Counsel for Appellant

DAVID M. BARASCH, ESQUIRE 

United States Attorney 

ANN K. FIORENZA, ESQUIRE (ARGUED) 

Assistant United States Attorney 

LARRY B. SELKOWITZ, ESQUIRE 

Assistant United States Attorney 

228 Walnut Street 

Harrisburg, PA 17108 

Counsel for Appellee

 

* The Honorable James McGirr Kelly, United States District Court 

for the Eastern District of Pennsylvania, sitting by designation. 
2 

 ______________ 

 OPINION OF THE COURT 

 ______________ 

BECKER, Circuit Judge. 

Victor M. Roussos is a federal prison inmate serving a term 

for conspiracy to distribute a controlled substance, 21 U.S.C. § 

846. He appeals from an order of the district court denying his 

petition for a writ of habeas corpus, 28 U.S.C. § 2241. Roussos 

completed a rigorous 500 hour Federal Bureau of Prisons (“BOP”) 

drug treatment program which he believed made him eligible for 

early release. The BOP, however, ruled him ineligible because 

one of the arresting officers found a gun in his vacation home, 

and the sentencing court enhanced Roussos’ sentence by two levels 

as a result of this finding. The enhancement, in turn, led the 

BOP, on the basis of a “Program Statement,” to classify Roussos’ 

offense as a crime of violence, thereby disqualifying him for 

early release. Roussos’ appeal presents two related questions: 

(1) whether the enhancement renders the drug conspiracy 

conviction a violent offense; and (2) whether the Program 

Statement is therefore inconsistent with the congressional 

statute authorizing early release and with the BOP regulations 

interpreting the statute, so that Roussos must be granted relief. 

 Roussos so contends, arguing that the BOP action violates his 

rights. We agree, and hence we shall vacate the district court's 

order and remand for proceedings consistent with this opinion. 

I. 
3 

Roussos, a federal inmate formerly incarcerated in 

Allenwood, Pennsylvania, and presently in FCI-Seagoville, Texas, 

was convicted following his guilty plea to conspiracy to 

distribute narcotics in violation of 21 U.S.C. § 846. Roussos 

was arrested at his place of employment by the FBI after an antidrug task force zeroed in on a New York City area drug 

trafficking network in which Roussos had participated. During a 

search of his automobile, FBI agents seized a brief case 

containing cocaine from the trunk. A subsequent search of his 

upstate New York residence revealed several firearms, additional 

amounts of cocaine, and drug paraphernalia. The sentencing 

court, acting pursuant to a plea bargain, treated the weapons to 

be connected with the drug offense and therefore imposed a twolevel Specific Offense Characteristic enhancement for possession 

of a firearm during a drug trafficking offense under U.S. 

Sentencing Guidelines Manual § 2D1.1. There is no dispute that 

guns were not a factor in his arrest and conviction. Roussos was 

sentenced on December 16, 1993, to 87 months imprisonment with a 

four year period of supervised release. 

In his habeas petition, Roussos contends that the BOP has 

wrongfully denied him eligibility for a sentence reduction for 

his successful completion of a drug treatment program under 18 

U.S.C. § 3621(e)(2)(B) of the Violent Crime Control and Law 

Enforcement Act of 1994. The Act provides in pertinent part: 

 (2) Incentive for prisoners' successful completion of 
4 

treatment program. -- 

 

 * * * 

 (B) Period of custody. -- The period a prisoner 

convicted of a nonviolent offense remains in custody 

after successfully completing a 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) (1994). 

The statute does not define “nonviolent offense.” However, 

the relevant BOP regulations define its meaning by referencing 

the term “crime of violence” as it is used in the criminal code: 

[a]n inmate who completes a residential drug abuse 

treatment program during his or her current commitment 

may be eligible for early release by a period not to 

exceed 12 months, . . . unless the inmate's 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 (1995) (as amended). 

In turn, 18 U.S.C. § 924(c)(3) (1984) defines the term 

"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. 

18 U.S.C. S 924(c)(3). 

In an effort to further define the term “crime of violence” 

(and hence the term “nonviolent offense”), the BOP issued Program 
5 

Statement 5162.02 (July 24, 1995) (amended April 26, 1996). 

Section 9 of the Program Statement provides that a conviction 

under § 841 or § 846 should be considered a crime of violence if 

the sentencing court increased the base level of the sentence for 

possession of a dangerous weapon during commission of the offense 

because “possession of a dangerous weapon during commission of a 

drug offense poses a substantial risk that force may be used 

against persons or property.” Id. 

Roussos contends that he is eligible for a reduction because 

he was convicted of a “nonviolent offense” in that his offense 

has not been regarded as a crime of violence under § 924(c). 

See, e.g., United States v. Arrellano-Rios, 799 F.2d 520, 523 

(9th Cir. 1986) (possession of controlled substances with intent 

to sell, 21 U.S.C. § 841(a)(1), is a nonviolent offense; no 

narcotics offenses under § 841(a)(1) are "crimes of violence" 

within the meaning of 18 U.S.C. § 924(c)); United States v. Cruz, 

805 F.2d 1464, 1468-75 (11th Cir. 1986) (whether Congress 

intended statutory definition of "crime of violence" to include 

drug trafficking is ambiguous; such ambiguity precludes 

convicting defendants under statute permitting convictions for 

use of firearms during commission of “crime of violence”); United 

States v. Diaz, 778 F.2d 86, 88 (2d Cir. 1985) (narcotics 

offenses are not crimes of violence within meaning of statute 

describing offense of carrying or using firearm in commission of 
6 

crime of violence).1 

 

1 See also United States v. Wells, 623 F. Supp. 645 (S.D. Iowa) 

(offense of cocaine distribution is not a "crime of violence" 

within firearm-enhancement statute), aff'd, 773 F.2d 230 (8th 

Cir. 1985); United States v. Bushey, 617 F. Supp. 292 (D.C. Vt. 

1985) (possession with intent to distribute narcotics, by itself 

or in conjunction with use or carrying of firearm, is not "crime 

of violence" for purposes of statute prohibiting use of firearm 

during or in relation to crime of violence). 
7 

Moreover, Roussos was convicted of conspiracy to distribute 

narcotics; if the actual distribution of narcotics does not 

constitute a crime of violence, it is hard to see how the 

conspiracy to do so can be so defined. If eligible and granted 

release one year early, Roussos would have been released on or 

before June 25, 1997.2 

The BOP contends, however, that under the Program Statement, 

once a two-level firearms enhancement has been made by the 

sentencing court under the Sentencing Guidelines, a prisoner is 

deemed to have committed a “crime of violence” and thus is 

categorically ineligible for consideration of a reduction in 

sentence under 18 U.S.C. § 3621(e)(2)(B). The BOP submits that 

Roussos was declared ineligible for the reduction in the sentence 

because his sentence was enhanced by two levels for possession of 

a firearm. 

 

2 It appears that Roussos’ statutory release date as of January, 

1997, was June 25, 1998, not counting any good time credits 

granted after January, 1997. Thus, if given the full year 

sentence reduction, Roussos would have been released June 25, 

1997, at the latest, and possibly months earlier. (See Supp. Br. 

of Appellant, at 29-30; App. at 362a.) Because of this time 

frame, we have expedited the appeal. 
8 

The Magistrate Judge recommended granting habeas relief in a 

Report and Recommendation filed August 27, 1996. However, the 

district court denied Roussos’ habeas petition on the basis that 

the BOP, as the agency charged with administering the statute, is 

free to adopt any reasonable interpretation of a statutory term 

(“nonviolent offense”) that Congress left undefined. The 

district court found the BOP’s interpretation “entirely 

reasonable.” The district court rejected the applicability of 

those cases that “focus on statutory definitions and elements of 

criminal offenses.” The district court wrote: “The statutory 

construction cases have no application to the present case which 

involves a rehabilitative program for federal prisoners. . . . 

Roussos’ claim that a categorical approach must be followed in 

interpreting the phrase ‘nonviolent offense’ is without merit.” 

(Op. at 10; App. at 370a.)3

II. 

A. 

 

3 The district court had federal question jurisdiction pursuant 

to 28 U.S.C. §§ 1331 and 2241. This court has jurisdiction 

pursuant to 28 U.S.C. §§ 1291 and 2253. Because the question 

here is purely a legal one, review of the district court's order 

denying relief under 28 U.S.C. § 2241 is de novo. See Fowler v. 

United States Parole Comm'n, 94 F.3d 835, 837 (3d Cir. 1996). 
9 

The question presented is one of first impression for this 

Court. However, we find guidance on this question in the opinion 

of our colleague Judge Aldisert in Downey v. Crabtree, 100 F.3d 

662, 669 (9th Cir. 1996). Downey had entered a guilty plea to a 

federal drug indictment. At sentencing, he received a two-level 

enhancement because firearms were found at the location of his 

arrest. During his incarceration, he completed the BOP’s 

substance abuse program, but the BOP denied him eligibility for 

sentence reduction because of its categorical exclusion of 

inmates who, when sentenced, received a sentencing enhancement 

for possession of a firearm during commission of a drug 

trafficking offense. Explaining that Downey had been convicted 

for possession of methamphetamine, 21 U.S.C. § 841(a)(1), not of 

firearms, 18 U.S.C. § 924(c), Judge Aldisert held that, in 

interpreting whether a prisoner was convicted of a “nonviolent 

offense” for purposes of granting a drug program reduction in 

sentence under § 3621(e)(2)(B), the BOP erred by considering 

sentencing factors (such as a firearms enhancement under the 

Guidelines) in lieu of the unambiguous statutory language which 

speaks only in terms of the conviction. Id. at 668. In other 

words, the statute makes clear that it is impermissible to 

consider facts other than those that form the basis for the 

elements of the offense for which the prisoner was convicted.4 

 

4 See also Davis v. Crabtree, 109 F.3d 566, 568-69 (9th Cir. 

1997) (despite the BOP’s Program Statement listing felon firearm 
10 

The court stated: 

 

possession as a crime of violence under § 924(c)(3), Ninth 

Circuit law has held to the contrary; the BOP cannot deny inmate 

eligibility for sentence reduction because inmate was not in 

category of nonviolent offenders; “parity of reasoning” requires 

that BOP interpretation of nonviolent offense must be consistent 

with Circuit law defining crime of violence); cf. Jacks v. 

Crabtree, 1997 WL 309962, *1-2 (9th Cir. June 11, 1997) (because 

§ 550.58 explicitly lists certain crimes, the conviction of which 

renders inmate ineligible for sentence reduction under § 3621, 

BOP may look beyond current offense of conviction in determining 

eligibility for sentence reduction for completion of drug 

program; the case is thereby distinguishable from Downey and 

Davis which addressed only a BOP Program Statement, not “a 

properly promulgated regulation to which we owe full Chevron

deference”). 

The relevant statute speaks clearly and unambiguously. 

 The operative word of § 3621(e)(2)(B) is "convicted." 

 Downey was convicted of a drug-trafficking offense, 

which is not a crime of violence. Section 

3621(e)(2)(B) addresses the act of convicting, not 

sentencing or sentence-enhancement factors. The Bureau 

erred by conflating the guilt-determination 

(conviction) and sentencing processes. The result is a 

Bureau interpretation that runs counter to the 

Sentencing Commission's formulation of a "non-violent 

offense" and judicial endorsement of that formulation. 

Id. 

The Downey court concluded that “inmates not convicted of 
11 

the firearm-possession offense, even if affected by 

sentence-enhancement factors for similar conduct, also cannot be 

denied sentence-reduction eligibility under a congressionally 

authorized program on grounds that their offense was not 

nonviolent.” Id. at 667-68. The Ninth Circuit therefore upheld 

a district court’s grant of habeas corpus. Cf. Sesler v. Pitzer, 

110 F.3d 569, 571-72 (8th Cir. 1997) (conviction of offense of 

actually using a firearm during drug trafficking is not within 

class of nonviolent offenses for purposes of eligibility for 

sentence reduction under § 3621(e)(2)(B); BOP Program Statement 

which defines as violent all convictions for using a firearm 

during drug trafficking is not arbitrary). 

That conclusion is similar to that reached by the Supreme Court in

Taylor v. United States, 495 U.S. 575 (1990). In Taylor, the Court examined

the Career Criminals Amendment Act of 1986, which enhances the sentence

imposed on a convicted defendant who had previously been convicted of certain

crimes. The Court held that, to determine whether prior convictions satisfy

the Act, a sentencing court may examine only the facts proving the particular

elements of the prior convictions, not the facts of the defendant

’

s conduct

that surrounded the conviction. See id. at 599-602. The Court noted that the

statute based the enhancement on whether a defendant had prior

“

convictions

”

for certain crimes, not on whether the defendant had previously

“

committed

”
12 

certain crimes. See id. at 600. The Court reasoned that such language

focused the inquiry on the conviction itself, not on the conduct giving rise

to the conviction.

Roussos, like Downey, has been denied eligibility for 

sentence reduction under § 3621(e)(2)(B) not because his offense 

has been classified as a “crime of violence” under § 924(c)(3), 

but based solely upon the Program Statement that categorically 

declares all inmates with two-level sentencing enhancements for 

firearm possession ineligible. By ignoring the offense of 

conviction and looking only to sentencing factors, the BOP has 

attempted to transmogrify a “nonviolent offense” into “a crime of 

violence.” In other words, the BOP 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. More specifically, under the rationale of Downey, 

we find the BOP’s interpretation of a nonviolent offense in the 

Program Statement to be in conflict with both 18 U.S.C. § 

3621(e)(2)(B) and 28 C.F.R. § 550.58 and therefore erroneous. 

The BOP may contend that classifying drug trafficking as a 

crime of violence is permissible in light of the fact that this 

Court has never clearly held otherwise. Although this Court has 

not specifically held that a violation of 18 U.S.C. § 846 is not 

“a crime of violence,” we do not find this dispositive for 

purposes of interpreting the applicable statute and regulation. 
13 

Section 3621(e)(2)(B) refers to a conviction of a nonviolent 

offense, which is cross-referenced in § 550.58 to import the 

definition of a crime of violence provided in § 924(c)(3), a 

statute with a large body of interpretative case law. And, as 

noted, several courts have determined that conspiracy to possess 

or distribute drugs, by itself, cannot be properly classified as 

a crime of violence. See, e.g., United States v. Cruz, 805 F.2d 

1464, 1468 n.5 (11th Cir. 1987). 

More importantly, the BOP has not argued that Roussos was 

denied eligibility for a sentence reduction because his 

conviction was classified as a crime of violence under § 924(c). 

 Rather, the BOP declared Roussos ineligible solely because of 

his sentence enhancement. Had Roussos’ sentence not been 

enhanced, he apparently would have remained eligible for a 

sentence reduction under § 3621(e)(2)(B) because his conviction

was not classified as a crime of violence under § 924(c). Thus, 

the fact that this Court has not spoken on whether a violation of 

§ 846 is a crime of violence has little bearing upon Roussos’ 

eligibility for a sentence reduction; under the statute and the 

accompanying regulation, Roussos is eligible in the absence of 

his conviction for a nonviolent offense or a crime of violence, 

neither of which occurred.5

 

5 Other pending cases address the question whether the felon-inpossession crime, 18 U.S.C. § 922(g), constitutes a crime of 

violence. We surely do not decide that question here. However, 

we do note that resolution of that question will be informed by 
14 

 

experience with the career offender provisions of the Sentencing 

Guidelines. See Impounded, No. 96-7781, slip. op. at 18 n.13 (3d 

Cir. June 30, 1997) (discussing case law interpreting the career 

offender provisions of the Sentencing Guidelines and their 

relationship to the felon-in-possession crime). We also note 

that because of conflicting circuit precedent over whether the 

felon-in-possession crime was a crime of violence for purposes of 

the Sentencing Guidelines, the Sentencing Commission amended the 

Application Notes to U.S.S.G. § 4B1.2 specifically to exclude the 

felon-in-possession crime from the definition of crime of 

violence for purposes of the career offender guidelines. See

1992 U.S.S.G., App. C, Amend. 461. 
15 

The district court rejected out-of-hand the so-called 

“statutory construction cases,” despite the fact that the precise 

issue at hand is the proper construction of the statute. The 

district court also appears to have erroneously given the BOP 

undue deference in its statutory construction. The BOP 

interpretation is rooted only in a Program Statement to which 

“some deference” is due. See Koray v. Sizer, 21 F.3d 558, 562 

(3d Cir. 1994), rev’d on other grounds sub nom., Reno v. Koray, 

515 U.S. 50 (1995) (bureau program statements are entitled to 

less deference because they are not promulgated under the 

Administrative Procedure Act and are “merely internal guidelines 

[that] may be altered by the Bureau at will”); National R.R. 

Passenger Corp. v. Boston and Maine Corp., 503 U.S. 407, 417 

(1992) (where bureau's "interpretation is . . . in conflict with 

the plain language of the statute, deference is [not] due"). 

Although the Program Statement the BOP used to deny Roussos 

eligibility for a sentence reduction is entitled to “some 

deference” under Koray, it must be rejected where it is 

inconsistent with the clear language of the statute. Fowler v. 

United States Parole Comm'n, 94 F.3d 835, 837 (3d Cir. 1996) (“We 

owe no deference . . . to administrative interpretations or 

regulations that are based upon an impermissible construction of 

the statute.”). 

III. 
16 

 Having concluded that the BOP’s interpretation is in 

conflict with the statute and its own regulations, we find that 

the BOP cannot rely upon Roussos’ sentencing enhancement to deny 

him eligibility for the sentence reduction. Accordingly, we will 

vacate the district court order.6 Roussos contends that he has 

met the requirements under 28 C.F.R. § 550.58(a)(2) for early 

release and requests that we order his immediate placement in the 

appropriate Community Corrections Center.7 We decline that 

invitation. Instead, we will remand the matter to the district 

court with directions that it immediately remand the case to the 

BOP for further proceedings consistent with this opinion.8 The 

mandate shall issue forthwith. 

 

 

6 In fairness to Judge McClure, the able district judge whose 

order we vacate, we note that he has reconsidered this issue in a 

subsequent decision, Mallozzi v. Menifee, No. 96-1721, slip op., 

(M.D. Pa. December 27, 1996), in which he concedes that “on 

further consideration [] Roussos was decided incorrectly.” 

(Order dated Feb. 27, 1997, at 2.) 

7 Roussos has executed his agreement to participate in Community 

Transition Programming, as required by 28 C.F.R. § 

550.58(a)(1)(ii). See Index to Exhibits of Habeas Corpus 

Petition. 

8 The BOP will determine whether there is any other basis for 

denying Roussos early release under § 3621(e)(2)(B). Otherwise, 

as its counsel represented at oral argument, it should be granted 

and Roussos placed in a Community Corrections Center.