The statute provides: “The per iod a prisoner convicted of a nonviolent offense 1 remains in custody after successfully completing a [substance abuse] tr eatment program may be reduced by the Bureau of Prisons, but such reduction may n ot be more than one year from t he term the prisoner must otherwise serve.” 18 U.S.C. § 3621(e)(2)(B ) (1994). United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-4224

___________ Ray D. Love, * * Plaintiff - Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. James W. Tippy, Warden; * FCI Waseca, * * Defendants - Appellees. *

___________ Submitted: October 20, 1997 Filed: January 8, 1998

___________ Before McMILLIAN, LAY, and BEAM, Circuit Judges.

___________ LAY, Circuit Judge. Ray D. Love (“Love”) filed this habeas corpus action to challenge the Bureau of Prisons’ (“BOP”) decision to deny him a sentence reduction under 18 U.S.C

. §3621(e)(2)(B). 1Section 924(c)(1) states in relevant part: 2 Whoever, d uring and in relation to any crime of violence or dru g trafficking crime (including a crime of violence or drug trafficking crime which provides for an

enhanced punishment if committed by the use of a deadly or d angerous weapon or device) for which he may be prosecuted in a court of the United States, us es or carries a firearm, shall, in addition to the punishment provided f or such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years [ ]. . . . 18 U.S.C. § 924(c)(1) (1994). -2- Facts and Procedural Background
Lov e is a federal prisoner serving time for conspiring to distribute cocaine i n violation o f 21 U.S.C. § 841(a)(1), and carrying a firearm during a drug traffickin g offense in violation of 18 U.S.C. § 924(c)(1). Love was convicted in 1990, and he 2 recei vedconsecutive sentences of sixty-three months for the drug offense and sixty months for the f

irearm offense. Love’s firearm conviction under § 924(c) is based on Love’s carrying of a .22 caliber handgun during and in relation to a drug traffickin g crime. Love did not brandish the weapon during the transaction.
While in prison, Love successfully completed a designated drug treatmen t program, and he applied for a one-year reduction of his sentence pursuant t o § 3261( e)(2)(B). The BOP denied Love’s application for a sentence reduction after concluding a § 924(c) conviction is not a conviction for a “nonviolent offense.” In reaching its decision, the BOP relied, in part , upon its own rule set forth in 28 C.F.R. § 550.58. The version of this rule in effect at the time of Love’s applicatio n stated:The BOP also relied upon two of its internal program statements. BO P Program 3 Statement 533 0.10 provides that an inmate whose current offense is determined to be a crime of violence as defined i n 18 U.S.C. § 924(c)(3) is not eligible for early release consider ation under § 3621(e)(2)(B). BOP Program Statement 5162.02 (“P.S

. 5162.02”) state s that for purposes of determining an inmate’s eligibility for a reduced sentence under § 3621(e)(2)(B), violations of § 924(c) will be considered crimes o f violence in all cases. Honorable Richard H. Kyle, United States District Judge for the District o f 4 Minnesota. Honorable Franklin L. Noel, Chief Magistrate Judge for the District o f 5 Minnesota. -3- An inm ate who completes a residential drug abuse treatment progra m during his or her current comm itment may be eligible for early release by a period not to exceed 12 months, in accordance with paragraph (a) o f this sectio n . . . 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) (emphasis added). Congress has defined “crime o f violence” in section 924(c)(3) as follows: For purposes of this subsection the term “ crime o f violence ” means an offe nse that is a felony and [ ] (A) has as an element the use , atte mpteduse, or threatened use of physical force against th e person o r property of another, or (B) that by its nature, involves a su bstantial risk that physical force against the person or propert y of another may be used in the course of committing the offense. 18 U.S.C. § 924(c)(3) (emphasis added). 3
Afte r exhausting his administrative remedies, Love filed a Petition for Writ o f Habeas Corpus in the United Sta tes District Court pursuant to 28 U.S.C. § 2241. The district court adopted the magistrate judge’s report and recommendation in its

4 5Lov e also argues that P.S. 5162.02, an internal agency interpretation o f 6 § 550.58, is inconsistent with § 550.58. While § 550.58 defines ineligibility for a § 3621(e)(2)(B) sentence reduction by the term “crime of violence as defined by 1 8 U.S.C . § 924(c)(3),” P.S. 5162.02 defines “crime of violence” to include all offenses under § 924(c). “[P]rovided an agency’s interpretation of its own regulations does not violate the Constitution or a federal statute, it must be given ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation.’” Stinson v. United States , 508 U.S. 36, 45 (1993) (quoting Bowles v. Semin ole Rock & Sand Co. , 325 U.S. 410, 414 (1945)). We do not find P.S. 5162.02 to be inconsistent with § 550.58. P.S. 5162.0 2 further defines the term “crime of violence” as that term is used in § 924(c)(3). Given the definition of crimes of violence in § 924(c)(3)(B), it seems reasonable to label all § 924(c) offenses as “crimes of violence.” Love also argues the BOP’s action of denying him a sentence reduction i s inconsistent with the BOP policies set forth in P.S. 5162.02. Lo ve contends the section of P.S. 5162.02 that makes § 924(c) viola tions “crimes of violence in all cases,” refers to “firearms usedin violent or drug trafficking crimes.” Love notes the terms “use” and“carrying” in § 924(c) have distinct meanings, Bailey v. United States , ___ U.S.

___, 116 S. Ct. 501, 507 (1995), and he was neither charged with nor convicted o f -4- entire ty, and denied Love’s petition. Love v. Tippy , Civ. No. 3-95-1034 (D. Minn

. Nov. 25, 1996) (order denying application for writ of habeas corpus). The district court conclude d that because Congress was silent on the meaning of “nonviolent offense ” within18 U.S.C. § 3621(e)(2)(B), the BOP properly promulgated regulation s interpreting th e phrase, and its interpretation does not contradict congressional intent. Id. Love appeals. BOP Interpretation of 18 U.S.C. § 3621(e)(2)(B)
The BOP de termined the term “nonviolent offense” as used in § 3621(e)(2)(B) does not include offenses that are “crimes of violence” a s defined in § 924(c)(3). Love argues the BOP exceeded its statutory authority when it made this determination. 6using a f

irearm during a drug trafficking offense. Thus, Love urges, when the BO P denied his sentence reductio n request, it did not follow its policy that only categorizes firearms used in violent or drug trafficking crimes as crimes of violence. We do not find this argument persuasive. Although the terms “use” an d “carrying” in § 924(c) have distinct meanings, see Bailey , 116 S. Ct. at 507, and P.S. 5162.02 does describe § 924(c) as “firearms used in violent or drug trafficking crimes,” this st atement is merely the BOP’s internal description of § 924(c). Perhaps thi s description could be more accurate. Even so, this description does not create a BOP policy that only § 924(c) offenses involving the use of firearms are “crimes o f violence.” P.S. 5162.02 makes clear that § 924(c) convictions are to be categorize d as crimes of violence in all cases. In his a ppeal to this court, Love does not claim the BOP’s interpretation o f 7 § 3621(e)(2)(B) violates the Constitution. -5- Whether the BOP’s interpretation of a statute violates the Constitution o r 7 exceeds its statutory authority is a proper ground of inquiry f or this court. See Webster v. Doe , 486 U.S. 592, 602-05 (1988); Jones v. United States Bureau of Prisons , 903 F.2d 1178, 1184 (8th Cir. 1990). It is well-set tled that “if a statute is unambiguous the statute governs; if, however, Congress’ silence or ambiguity has ‘left a gap for th e ag ency to fill,’ courts must defer to the agency’s interpretation so long as it is ‘ a permissible construction of the statute.’” Stinson , 508 U.S. at 44 (quoting Chevro n U.S .A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 842-4 3 (1984)). Cong ress’ decision to leave the term “nonviolent offense” undefined i n § 362 1(e)(2)(B), indicates Congress’ intent to give the BOP discretion to decid e whether an inmate’s offense of conviction is a nonviolent offense. We hold the BOP’s decision to exclude convictions und er § 924(c) from its list of “nonviolent offenses” is within its statutory authority. See Stinson , 506 U.S. at 44.The government argues that with few exc eptions, see Downey v. Crabtree , 100 8 F.3d 662, 670 (9th Cir. 1996), courts have consistently upheld the BOP’s position that prisoners convicted of firearm offenses are ineligible for sentence reductions under § 36 21(e)(2)(B). In support of this contention, the government refers this court to a n Eighth Circuit panel’s recent decision in Sesler v. Pitzer , 110 F .3d 569 (8th Cir. 1997), cert. denied , ___U.S.___, 118 S.Ct. 197 (1997)). Sesler i s somewhat different than this case. Unlike Sesler, Love was no t convicted of the “use” of a weapon during drug trafficking. Thus, although we reach the same res ult as the Sesler panel, we are reluctant to rely solely on Sesler i n upholding the BOP’s conclusion that Love’s § 924(c)(1) conviction is n ot a “nonviolent offense” under § 3621(e)(2)(B). Based on our jurisdiction to review the BOP’s exercise o f discretion in deciding 9 all prisoners convicted of § 924(c) offenses are ine ligible for § 3621(e)(2)(B) sentence reductio ns, we also find the BOP did not abuse its discretion in denying Love’ s individual application for a § 3621(e)(2)(B) sentence reduction. -6- We also find the BOP’s interpretation of the phrase “nonviolent offense” to be a p ermissible construction of § 3621(e)(2)(B). Any § 924(c) violation necessaril y invo lves a firearm. See 18 U.S.C. § 924(c)(1). An individual may not be convicte d under § 924(c)(1) unless that individual uses or carries a firearm “during and in relation to” a crime of violence or a drug trafficking crime. See id. (emphasis added). Given the inhere ntly violent nature of firearms, and the danger firearms pose to all members of society, the BOP did not act unreasonably when it determined that a § 924(c)(1 ) offense is not a “nonviolent offense” for purposes of § 3621(e)(2)(B). 8
Fi nally, we note that § 3621(e)(2)(B) is discretionary. It does not require th e BOP to give any prisoner a sentence reduction. Section 3621(e)(2)(B) only requires that t he BOP: 1) limit its consideration for sentence reductions to those prisoner s con victedof nonviolent offenses; and 2) limit any sentence reduction to one year o r less. See 1 8 U.S.C. § 3621(e)(2)(B). The BOP acted within its discretion i n concluding § 924(c) convictions are not “nonviolent offenses” under § 3621(e)(2)(B). 9-7-

For the foregoing reasons, we affirm the decision of the district court. A true copy.

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