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

### OCT 16 2000 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DENNY HUNNICUTT,

Petitioner-Appellant,

v. KATHLEEN HAWK,

Respondent-Appellee. No. 99-6435

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. 98-CV-1717-A)

Submitted on the briefs: Denny Hunnicutt, Pro Se.

Before BALDOCK , KELLY , and HENRY , Circuit Judges.

PER CURIAM.

Petitioner-appellant Denny Hunnicutt, a federal inm ate appearing pro se, appeals the denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. He filed suit against the warden , challenging the Bureau of1 After examining the briefs and appellate record, th is panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument. -2- Prison’s (BOP) determination that he is ineligible for a sentence reduction under 18 U.S.C. § 3621(e)(2)(B). Because Mr. Hunnicutt i s a federal prisoner, a certificate of appealability is not required to app eal the district court’s denial.
See Montez v. McKinna , 208 F.3d 862, 867 (10th Cir. 2000); McIntosh v. United States Parole Comm’n , 115 F.3d 809, 810 n.1 (10th Cir. 1997). The resp ondentappellee has not filed a brief. Granting Mr. Hunni cutt’s request to proceed in forma pauperis, we affirm. 1

Background Mr. Hunnicutt pled guilty on January 16, 1997, to c onspiracy to possess methamphetamine with intent to distribute, in violation of 21 U.S.C. § 846, and conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 371, specifically to knowingly and inte ntionally use and/or carry a firearm during and in relation to a drug traffickin g crime in violation of 18 U.S.C. § 924(c). He was sentenced to a term of ninety-two months. He began a residential drug abuse program (RDAP) in prison in November 1997. After completing the program, he unsuccessfully sought re duction of his sentence under § 3621(e)(2)(B). Section 3621(e)(2)(B) allows the BOP to reduce an inmate’s-3-

sentence by as much as one year if the inmate was “ convicted of a nonviolent offense” and successfully completes a substance abuse treatment program. See id

. The statute does not define the term “convicted of a nonviolent offense.” Initial Determination of Ineligibility The BOP initially determined Mr. Hunnicutt was inel igible under § 3621(e)(2)(B) because his sentence had been enhan ced for possession of a firearm during the commission of his offense. Mr. Hunnicutt then filed his § 2241 complaint alleging the BOP exceeded its statutory authority in light of this court’s ruling in Fristoe v. Thompson , 144 F.3d 627 (10th Cir. 1998). In Fristoe , this court invalidated a previous BOP policy that c ategorically prohibited inmates whose sentences had been increased by a firearm enh ancement from being eligible for early release under § 3621(e)(2)(B). We held that reliance on sentence enhancements conflicts with the plain language of § 3621(e)(2)(B), which refers to the offense for which the prisoner was convicted. See 144 F.3d at 631-32. In response to Mr. Hunnicutt’s complaint, the respo ndent argued that
Fristoe was inapplicable because Mr. Hunnicutt began the RDAP in November 1997, after amendments in October 1997 to the regul ation interpreting § 3621(e)(2)(B), 28 C.F.R. § 550.58 (1997), and BOP Program Statement2 A BOP program statement is “an interpretative state ment of position

circulated within [the] agency that serves to provi de administrative guidance in applying a then existing published rule.” Pelissero v. Thompson , 170 F.3d 442, 447 (4th Cir. 1999).

3 We note that the Supreme Court has granted certiorari in Lopez v. Davis , No. 99-7504, 120 S. Ct. 1717 (Apr. 24, 2000) to c onsider the question of (continued...) -4- No. 5162.04 (October 9, 1997). 2These amended policies provide that, as an exercise of the BOP’s discretion, an inmate whose s entence was enhanced for possession of a firearm is ineligible for the sente nce reduction of § 3621(e)(2)(B). See Ward v. Booker , 202 F.3d 1249, 1253 (10th Cir. 2000), petition for cert. filed , 68 U.S.L.W. 3023 (U.S. July 3, 2000) (No. 00-18). The magistrate judge concluded that the newly amend ed regulation and Program Statement did not alter the substance of wh at the BOP was doing--denying § 3621 eligibility to prisoners base d solely on a sentence enhancement, rather than a conviction--and, therefo re, that the BOP exceeded its authority in relying on Mr. Hunnicutt’s sentence en hancement to deny him eligibility. The magistrate judge recommended thatMr. Hunnicutt’s petition be conditionally granted, subject to reconsideration b y the BOP of Mr. Hunnicutt’s eligibility. The magistrate judge correctly anticipated our decision in Ward , in which we held the BOP’s revised policy still confli cts with the clear language of § 3621(e)(2)(B), and that the BOP’s attempt to couc h it as merely an exercise of its discretion did “not make it any less contrary to the statute.” Id . at 1256. 33 (...continued)

whether this amended regulation and Program Stateme nt are an appropriate exercise of the BOP’s discretion. -5-

Revised Determination of Ineligibility The BOP reconsidered Mr. Hunnicutt’s eligibility un der § 3621(e)(2)(B) after the magistrate judge’s report issued. It con cluded that Mr. Hunnicutt remained ineligible for early release, but for a di fferent reason: his § 371 conspiracy conviction was a crime of violence becau se it was based on a violation of 18 U.S.C. § 924(c), conspiracy to use or carry f irearms during and in relation to the commission of a drug trafficking crime. The BOP’s new statement of denial, which was filed with respondent’s objection s to the magistrate judge’s recommendation, stated that “the underlying offense is categorized as violent, [thus], the conspiracy offense is violent as well.” R. Doc. 19, Ex. A. Regulation § 550.58 expressly renders ineligible fo r early release any felony inmate whose offense “involved the carrying, possession, or use of a firearm. . . .” 28 C.F.R. § 550.58(a)(1)(vi)(B). Program Statement No. 5162.04, in effect when Mr. Hunnicutt started the RDAP, list s a firearms conviction under § 924(c) as a crime of violence, and states, with r espect to conspiracy convictions under § 371, that “[i]f the underlying offense is c ategorized as violent [in the Program Statement], then the . . . conspiracy offen se is also violent.” R. Doc. 13, Ex. F, at 4 and 7-8. The district court concluded that the BOP was within its-6-

statutory authority to deny Mr. Hunnicutt § 3621 el igibility because of his conviction under § 371 for conspiracy to use or carry a firearm during and in relation to a drug trafficking offense.
Analysis “We review de novo the district court’s denial of h abeas corpus relief.” Martinez v. Flowers , 164 F.3d 1257, 1258 (10th Cir. 1998). Because th e Administrative Procedure Act does not apply to § 36 21, we may not review whether the BOP erred in Mr. Hunnicutt’s particularcase, but may only review whether the BOP exceeded its statutory authority inconstruing § 3621(e)(2)(B).
See Fristoe , 144 F.3d at 630-31. “An agency’s interpretation of a statute by formal regulation or adjudication is entitled to de ference, so long as the agency’s interpretation is based upon a permissible construction of the statute.” Id . at 631. “Where the agency’s interpretation of the statute i s made informally, however, such as by a ‘program statement,’ the interpretatio n is not entitled to [such] deference, but will instead be considered only to the extent that it is well-reasoned and has ‘power to persuade.’” Id

. On appeal, Mr. Hunnicutt argues that the BOP exceed ed its statutory authority because the BOP based its eligibility det ermination on underlying offense conduct, rather than on the conviction itse lf. This argument misconstrues the BOP’s decision, which was based on Mr. Hunnicutt’s § 371 conviction for-7-

conspiracy to use or carry a firearm during and in relation to a drug trafficking offense, and was not based merely on underlying off ense conduct, as was the case in Fristoe and Ward . Mr. Hunnicutt does not dispute that the use or c arrying a firearm during and in relation to a drug traffickin g offense in violation of § 924(c)(1) is a crime of violence. See Warren v. Crabtree , 185 F.3d 1018, 1021 (9th Cir. 1999) (BOP properly determined inmates co nvicted for use or carrying of a firearm in relation to drug trafficking crime categorically ineligible for a sentence reduction); Love v. Tippy , 133 F.3d 1066, 1069 (8th Cir. 1998) (same). We have held that a § 371 conviction for conspiracyto commit a federal crime of violence itself constitutes a “crime of vi olence,” and is, therefore sufficient to support a conviction under 18 U.S.C. § 924(c)(1) for use or carrying of a firearm during and in relation to a crime of violence. See United States. v.
Brown , 200 F.3d 700, 706 (10th Cir. 1999), cert. denied , 120 S. Ct. 1213 (2000) and 120 S. Ct. 1706 (2000). We based this holding on the fact that “an overt act in furtherance of the object of conspiracy [i]s an element of a conspiracy conviction” under § 371. Id

. In order to qualify as a violent crime, a convictio n need not involve the actual use of force or violence; rather, it need on ly involve “a substantial risk that physical force against the person or property of an other may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)( b). Because the elements of-8-

Mr. Hunnicutt’s conspiracy conviction included an o vert act in furtherance of the offense of using or carrying a firearm, we conclude that the BOP’s interpretation of § 3621(e)(2)(B) was reasonable, and that it acte d within its statutory authority, in classifying a conviction under § 371 for conspir acy to use or carry a firearm during and in relation to a drug trafficking offens e as a crime of violence, precluding eligibility under § 3621(e)(2)(B). Mr. Hunnicutt also contends his due process rights were violated because the BOP applied different § 3621(e)(2)(B) eligibili ty criteria upon reconsideration than in its original eligibility determination. He relies on a Ninth Circuit decision which held that unfavorable changes to BOP rules co nstruing § 3621(e)(2)(B) cannot be applied retroactively to prisoners who qu alified for early release under the former rules and who had started the substance abuse treatment program prior to the change. See Cort v. Crabtree , 113 F.3d 1081, 1086-87 (9th Cir. 1997); but see Royal v. Tombone , 141 F.3d 596, 601-02 (5th Cir. 1998) (disagreeing with
Cort and holding that aggrieved prisoner must show thathe was actually entitled to sentence reduction prior to issuance of new rule to avoid application of that rule). Cort is easily distinguishable. Here, in contrast to the facts in Cort , the amended regulation and Program Statement applied bythe BOP upon reconsideration were adopted prior to Mr. Hunnicutt’s entry into the RDAP, and he was never told that he was eligible for the earl y release program. Thus,-9-

Mr. Hunnicutt did not lose any vested right, nor di d he have any settled expectation of eligibility. Mr. Hunnicutt also contends there are insufficient facts in the record to establish that his conspiracy conviction was based on the underlying offense of using or carrying a firearm during or in relation t o a drug trafficking offense. The government and the district court relied upon Mr. H unnicutt’s presentence report, which states that he was charged with, and pled gui lty to, knowingly and intentionally conspiring “to commit an offense agai nst the United States, that is: to knowingly and intentionally use or carry firearm s during and in relation to drug crimes, in violation of 18 U.S.C. § 924(c), all in violation of 18 U.S.C. § 371.” R. Doc. 13, Ex. E, at 3-4. The presentence report states that Mr. Hunnicutt gave a dealer “a loaded semi-automatic handgun to use as s elf-protection or for intimidation in the [drug] deliveries,” “was armed with a loaded .44 caliber revolver” during some drug deliveries, and pointed a loaded firearm at a drug buyer during one delivery. Id . at 5-6. The record does not include any objectio ns to the presentence report, and Mr. Hunnicutt did no t dispute this evidence by filing an objection to the magistrate judge’s report. We find this evidence sufficient to support the district court’s finding that a § 924(c) firearms offense is the underlying offense for his § 371 conspiracy conviction.4 In noting the BOP’s option of reconsidering Mr. Hun nicutt’s

eligibility, the magistrate judge noted that the “B OP more than likely could have relied upon [Mr. Hunnicutt’s] concurrent convictionfor conspiracy to use or carry firearms during a drug trafficking offense . . . as a sound basis for excluding him from consideration for a § 3621 sentence reduction. ” R. Doc. 17, at 7. Although Mr. Hunnicutt complains on appeal about the magistr ate judge’s apparent suggestion to the BOP, the record does not reflect that he filed any objections to the magistrate judge’s report and recommendation. -10- We briefly address Mr. Hunnicutt’s remaining allegations. The magistrate judge did not err in recommending that the BOP reco nsider its original basis for denying Mr. Hunnicutt’s eligibility. 4The district court did not err in considering the new evidence concerning the BOP’s reconsiderati on, as it is permitted under 18 U.S.C. § 636(b) to receive additional evidence a fter the magistrate judge’s recommendation. Mr. Hunnicutt claims to have fileda response to respondent’s objections to the magistrate judge’s report and rec ommendation, although no response appears in the record. However, the distr ict court would not have erred in not accepting or considering such a response bec ause the local rules provide that a party may not file a response to the other p arty’s objections to the magistrate judge’s recommendation unless directed to do so by the court. See W.D. Okla. Loc. Civ. R. 72.1. The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED.