* This order and judgment is not binding precedent, e xcept under the

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

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

### FEB 1 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

MARTIN D. ARRASMITH,

Petitioner-Appellant,
v. UNITED STATES OF AMERICA; JANET RENO, United States Attorney General; KATHLEEN M. HAWK, Director of Bureau of Prisons; J.W. BOOKER, Warden, United States Penitentiary, Leavenworth,

Respondents-Appellees. No. 98-3214 (D.C. No. 98-3199-RDR) (D. Kan.)

ORDER AND JUDGMENT *
Before TACHA , BARRETT , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of2--

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Petitioner Martin D. Arrasmith is a federal prisone r currently incarcerated in Leavenworth, Kansas, serving a seventy-month sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). His projected date of release from prison is July 21, 1999. In June 1 996, Mr. Arrasmith successfully completed a residential substance abuse treatment p rogram and applied to the Federal Bureau of Prisons for early release under 1 8 U.S.C. § 3621(e)(2)(B). The Bureau determined Mr. Arrasmith’s conviction for un lawful possession of a firearm by a felon constituted a “crime of violence ” under 18 U.S.C. § 924(c)(3), making him ineligible for a sentence reduction unde r § 3621(e)(2)(B). He then filed the instant petition for habeas corpus relief pursuant to 28 U.S.C. § 2241 in the district court challenging the Bureau’s denial of his request for sentence reduction. Cf. Bradshaw v. Story , 86 F.3d 164, 166 (10th Cir. 1996) (“A petition under 28 U.S.C. § 2241 attacks the execution of a s entence rather than its validity and must be filed in the district where the prisone r is confined.”). The district court held the Bureau’s conclusion that a § 922(g)( 1) conviction is a crime of violence was not unreasonable or contrary to law an d denied the petition. Mr. Arrasmith appeals. He has also requested an expedi ted disposition, which we grant.3--

The government did not respond to the petition in t he district court and has not filed a brief on appeal. However, it has submi tted, as supplemental authority, a decision from the Fifth Circuit indicating that M r. Arrasmith filed an identical petition while incarcerated within that circuit’s j urisdiction. See Venegas v. Henman , 126 F.3d 760 (5th Cir. 1997). The Fifth Circuit affirmed the denial of that petition on the merits of the precise issue he raises in the instant petition. See id. at 765. The petition therefore is successive as amatter of law, and the district court should not have considered it on the merits. See 28 U.S.C. § 2244(a) We therefore VACATE the district court’s judgment a nd REMAND the case to the district court with instructions to dis miss the petition. The mandate shall issue forthwith.

Entered for the Court

Deanell Reece Tacha Circuit Judge