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United States Court of Appeals,

Fifth Circuit.

Nos. 97-30042, 96-11470.

Raymundo VENEGAS, Petitioner-Appellee,

v.

G.L. HENMAN, Warden Federal Detention Center, Oakdale, Louisiana,

Respondent-Appellant.

Steve P. WILSON; et al., Plaintiffs,

Steve P. Wilson; Martin D. Arrasmith; Clyde Devers, PlaintiffsAppellants,

v.

Roy Lee SIMPSON, et al., Defendants,

Roy Lee Simpson; Ronnie Giambra, Defendants-Appellants,

v.

BUREAU OF PRISONS; Kathleen Hawk Davis; George E. Killinger,

Warden, FCI Ft. Worth, Defendants-Appellees.

Oct. 31, 1997.

Appeal fromthe United States District Court for the Western

District of Louisiana.

A ppeal from the United States District Court for the Northern

District of Texas.

Before REYNALDO G. GARZA, SMITH and WIENER, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

In the context of a habeas corpus petition, this Court

reviews the district court's determinations of law de novo and its

findings of facts for clear error. This appeal raises related

issues of first impression in this Circuit. The Bureau of Prisons2

has authority to reduce, by up to one year, the sentences of

offenders convicted of nonviolent offenses who successfully

complete substance abuse treatment. The first issue is whether the

Bureau of Prisons' classification of convictions for violation of

18 U.S.C. § 922(g) (felon-in-possession of a firearm) as violent is

erroneous as a matter of law. The second is whether the Bureau of

Prisons' classification of convictions for violation of 21 U.S.C.

§ 841(a)(1 ) (drug possession with intent to distribute), with a

sentence enhancement for possession of a weapon, as violent is

erroneous as a matter of law.

We conclu de that the Bureau of Prisons' classifications of

felon-in-possession convictions and drug convictions with a

sentence enhancement for possession of a weapon are reasonable and

consistent with the authority and discretion granted to the Bureau

by Congress. As such, these classifications are not erroneous as

a matter of law. Accordingly, we affirm the denial of habeas

relief to the petitioners in Wilson v. Bureau of Prisons, No. 96-

11470, and reverse the granting of habeas relief to the petitioner

in Venegas v. Henman, No. 97-30042.

Background

In the first of the two cases under consideration, Venegas v.

Henman, No. 97-30042, the district court granted Raymundo Venegas'

habeas corpus petition and ordered the Bureau of Prisons to reduce

his sentence by one year. The court concluded that the Bureau's1 In 1994, Venegas pleaded guilty to: possession with intent

to d istribute marijuana, in violation of 21 U.S.C. § 841(a)(1);

being a felon-in-possession of a firearm, in violation of 18 U.S.C.

§ 922(g); and using a communication facility to facilitate a

felony, in violation of 21 U.S.C. § 846. Venegas possessed an AK47 rifle during a drug transaction, and the district court enhanced

his offense level on that basis. The district court sentenced

Venegas to 80 months in pri son and to five years of supervised

release.

2 The district court sentenced petitioner-appella nt Martin

Arrasmith, for example, after convicting him of possession of a

firearm by a felon in violation of 18 U.S.C. § 922(g). The police

found Arrasmith, a previously convict ed felon, in possession of

seven firearms.

3 The district court sentenced petition er-appellant Ronald

Giambra for possession of methamphetamine with intent to distribute

in violation of 21 U.S.C. § 841. The court enhanced Giambra's

offense by two points for possession of a dangerous weapon/firearm

under U.S. Sentencing Guideline Section 2D1.1(b)(1) after Giambra

admitted to the court that he was the owner o f the .25 caliber

Jennings semi-automatic pistol and loaded maga zine which police

seized from the vehicle Giambra was driving.

3 classification of Veneg as' felon in possession conviction 1 as

violent conflicted with the plain language of the statute granting

the Bureau's authority to reduce sentences for nonviolent offenders

who complete substance abuse treatment. In the companion case,

Wilson v. Bur eau of Prisons, No. 96-11470, several prisoners

convicted of felon-in-possession violations 2 and drug possession

violations with sentence enhancements for possession of a weapon 3

filed habeas corpus petitions after the Bureau of Pri sons denied

reductions in their sentences. The district court dismissed

several petitions due to the peti tioners' failure to exhaust

administrative remedies and denied the remaining petitions based on

the p etitioners' failure to establish a deprivation of a liberty

interest.4 Statutory and Regulatory Background

The enabling statutes regarding eligibility for substance

abuse treatment and related sentence reduction explicitly vest

considerable discretion with the Bureau of Prisons. Section

3621(b) of United States Code Title 18 requires the Bureau to make

substance abuse treatment available for "each prisoner the Bureau

determines has a treatable condition of substance addic tion or

abuse." 18 U.S.C. § 3621(b) (1997) (emphasis added). As an

incenti ve for prisoners to complete treatment, section 3621(e)

provides that prisoners who, " in the judgment of the Director of

the Bureau of Prisons, [have] successfully completed a program of

residential substance abuse treatment

... shall remain in the

custody of the Bureau under such conditions as the Bureau deems

appropriate." 18 U.S.C. § 3621(e)(2)(A) (1997) (emphasis added).

The legislative history of section 3621(e) states that the

determina tion of successful completion of a substance abuse

treatment programs is to be "based on criteria established and

applied by the Bureau of Prisons. " H.R.Rep. 103-320, 103rd Cong.,

1st Sess. (1993). For prisoners convicted of "nonviolent" offenses

who have successfully completed treatment, the period of continued

custody " 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) (1997) (emphasis

added).

The Bureau issued regulations governing substance abuse

treatment programs, see 28 C.F.R., Subpt. F, § 550.50, et seq.,5

which exclude inmates "whose current offense is determined to be a

crime of violence as defined in 18 U.S.C. 924(c)( 3)" from

eligibility for early release. 28 C.F.R. § 550.58 (1997). Section

924(c)(3) defines a crime of violence as a felony:

(A) [that] 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. § 924(c)(3) (1997). Bureau of Prison Program Statement

No. 5162.02 explicitly excludes from the category of "nonviolent"

offenders eligible for early release those prisoners convicted of

possession of a firearm by a convicted felon and those prisoners

serving enhanced sentences under United States Sentencing Guideline

section 2D1.1(b)(1) due to possession of a dangerous weapon during

the underlying offense.

Discussion

The Bureau did not exceed its statutory authority by using

its discretion to exclude from consider ation for early release

those prisoners convicted of possession of a weapon by a felon and

offenses enhanced under the sentencing guidelines for possession of

a weapon. The Bureau of Prisons' internal agency guidelines, an

interpretive rule not subject to the Administrative Procedure Act's

notice-and-comment requirements, is entitled to some deference from

a reviewing court as long as the Bureau's interpretation is based

on a "permissible construction of the statute." R eno v. Koray, 515

U.S. 50, 61, 115 S.Ct. 2021, 2027, 132 L.Ed.2d 46 (1995) (quoting4 The legislative history devotes considerable attention to the

connection between drug addiction and criminal activity, as well as

the dramatic effect substance abuse treatment can have on

6 Chevron U.S.A., Inc. v. Natural Resources Defense Council , Inc.,

467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984)).

Section 3621(e)(2) provides:

(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) (1997). The plain meaning of this mandate

is not clear. One possible interpretation is that the statute only

authorizes the Bureau to look to the specific elements of the base

offense in determinin g what constitutes a "nonviolent offense."

See Downey v. Crabtree, 100 F.3d 662, 668 (9th Cir.1996) ("The

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

interpretation is that the use of the phrase "a nonviolent offense"

merely exclud es all inherently violent offenses from eligibility

for consideration , while leaving to the Bureau's discretion the

determination of which other offenses will or will not be eligible

for consideration. Under this reasoning, "may be reduced by the

Bureau of Prisons" is the operative language in the statute.

The latter int erpretation, which leaves the Bureau with the

discretion necessary to fulfill the purpose of the statute, is the

better int e rpretation. The stated purpose underlying section

3621(e) is to reduce recidivism, which in turn eases prison

overcrowding and ultimately prevents crime. H.R.Rep. 103-320,

103rd Cong., 1st Sess. (1993). 4 Section 3621(e)(2)(B) provides anrecidivism rates. H.R.Rep. 103-320, 103rd Cong., 1st Sess. (1993).

5 In addition to finding the Bureau's exercise of discretion in

defining "nonviolent offense" to be reasonable in itself, Sesler,

110 F.3d at 571-72, the Sesler court pointed to 42 U.S.C. section

3796ii-2, which includes in the definition of violent offender:

a person who

... is charged with or convicted of an

offense, during the course of which off ense or conduct

... the person carried, possessed, or used a firearm or

dangerous weapon

... without regard to wh ether any of

[these circumstances] is an element of the offense or

7 incentive for prisoners to undergo substance abuse treatment. The

s tatute, however, does not extend this incentive to crimes of

v iolence. Although the Bureau may find a violent offender to be

eligible for substance abuse treatment, thereby fostering

rehabilitation and, hopefully, reducing recidivism rates, Congress

has determined that the incentive of early release is not

appropriate for v iolent offenders. This exclusion preserves the

punitive and deterrent effects of harsher sentencing for violent

offenders. The discretion vested in the Bureau to determine what

offenses, in context, are violent for purposes of section 3621(e)

and, therefore, not appropriate f or exposure to the incentive of

early release, fulfills the will of Congress and satisfies both the

wording and the intent of the statute. Consistent with this

rationale, the Eighth Circuit recently agre ed with the Bureau's

conclusion that use of a firearm during and in relation to a drug

trafficking crime "is clearly not a nonviolent offense within the

meaning of § 3621(e)(2)(B)." Sesler v. Pitzer, 110 F.3d 569, 572

(8th Cir.1997), petition for cert. filed (July 7, 1997) (No. 97-

5126). 5conduct of which or for which the person is charged or

convicted....

42 U.S.C. § 3796ii-2 (1994) (repealed by Omnibus Consolidated

Rescissions an d Appropriations Act of 1996, Pub.L. No. 104-

134, § 20112, 110 Stat. 1321). Although section 3796ii-2 had

since been repealed, the court noted th at Congress enacted

both section 3796ii-2 and section 3621(e)(2)(B) as part of the

Violent Crime Control and Law Enforcement Act of 1994.

Sesler, 110 F.3d at 572. The court continued "[c]onsequently, it

is reasonable to construe terms common to both § 3796ii-2 and §

3621(e)(2)(B) to have the same meaning." I d. (citing Reno v.

Koray, 515 U.S. 50, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995) and

Gozlon-Peretz v. United States, 498 U.S. 395, 111 S.Ct. 840, 112

L.Ed.2d 919 (1991) as s upporting reference to other, related

legislative enactments when interpreting specialized statutory

terms based on a presumption that Congres s legislated with

reference to those terms). Accordingly, the court drew further

support for the reasonableness of the B ureau's interpretation of

"nonviolent" for section 3621(e)(2)(B) purposes from the fact that

Congress expres sly included persons charged or convicted of

offenses involving the possession or use of a firearm in the

definition of violent offenders under section 3796ii-2. Id.

8 To the extent tha t the Ninth Circuit adopted a different

interpretation of section 3621(e)(2)(B) in Downey, we respectfully

disagree. Limiting the Bureau's discretion so as to require early

release for all prisoners convict ed of offenses which do not

include an act of violence as a necessary element would frustrate

the intent of Congress by exposing prisoners whose criminal conduct

presented a significant risk of violence to the incentive of early

release. On the other hand, the Bureau's determination of which

prisoners should be exposed to this incentive, based on the

presence of a "substa ntial risk that physical force against the

person or property of another may be used in the course of

committing the offense," see 18 U.S.C. § 924(c)(3) (1997), is in

accord with section 3621(e)'s mandate that the incentive of early

release is not appropriate for violent offenders.9

Furthermore, forcing the Bureau of Prisons to expose violent

offenders to the incentive of early release, as the court did in

Downey, may result in the paradoxical result of denying otherwise

eligible prisoners access to trea tment. The court in D owney

acknowledged that the Bureau has the discretion to determine which

prisoners are eligible for treatment. If the Bureau has, in its

discretion, excluded certain violent offenders from exposure to the

incentive of early release and a court takes that discretion away,

the Bureau could achieve the same result by simply denying those

offenders access to treatment in the first place.

Additionally, reliance on case law limiting the definition of

"crimes of violence" and "nonviolent crimes" in the context of

cert ain Sentencing Guidelines is misplaced. The Sentencing

Guidelines do not include the crime of possession of a weapon by a

felon as a crime of violence. USSG § 4B1.2(1), comment. (n. 2)

(1995). Similarly, for purposes of sentence enhancement based on

a prior conviction for a crim e of violence, the Sentencing

Guidelines allow the court to consider only the specific elements

of the prior offense. S ee, e.g., Taylor v. United States, 495 U.S.

575, 602, 110 S.Ct. 2143, 2160, 109 L.Ed.2d 607 (1990 ). These

cases deal with enhancing a sentence based on prior offenses, which

primarily serves punitive and deterrent purposes. S ee USSG Ch. 1,

Pt. A, intro. comment (n. 2) (1995) (reciting statutory mission of

Sentencing Guidelines as furthering "the basic purposes of criminal

punishment: deterrence, incapacitation, just punishment, and

rehabilitation."). The Sentencing Guidelines serve these purposes10

ex ante, while decisions regarding early release of prisoners

necessarily must consider these purposes ex post. Accordingly,

C ongress excluded violent offenders from consideration for early

release as an incentive for parti cipation in substance abuse

treatment. Where a risk of violence is involved, the connection

between substance abuse treatment a n d reduction in recidivism

becomes more tenuous. Similarly, where a risk of violence is

involved, consideration of public safety takes on added importance

in the context of early release.

In a similar context, that of pre-trial release, this Court

has found that an act of violence reasonably connected to the

speci fic offense charged could establish a crime of violence for

purposes of denying release. U nited States v. Byrd, 969 F.2d 106,

110 (5th Cir. 1992). In so finding, we noted that "it is not

necessary that the charged offense be a crime of violence[,]" as

long as there is a nexus between the violent conduct and the

charged offense. Id. In the context of pre-trial release, as in

the present context of early release from prison, public safety is

an important c onsideration that, when combined with conduct

presenting a risk of violence, justifies denial of release. S ee

id. at 109-111. Under such circumstances, it is not only

reasonable, but also advisable to consider conduct connected to the

charged offense which presents a risk of violence. This

consideration is in accord with the definition of crimes of

violence adopted by the Bureau of Prisons, which includes a felony

"that by its nature, involves a substantial risk that physical11

force against the person or property of another may be used in the

course of committing the offense." 18 U.S.C. § 924(c)(3) (1997).

In addition, this language belies the proposition that actual

violence must be an element of the charged offense by speaking in

terms of "a substantial risk" of force that "may be used." The

Bureau of Prisons determination that a sufficient nexus exists

between the offenses at issue and a substantial risk of violence is

a valid exercise of discretion which this Court will not disturb.

Conclusion

The Bureau of Prisons' exclusion of felon-in-possession of a

weapon convictions and drug convictions with enhanced sentences due

to possession of a weapon from eligibility for early release after

substance abuse treatment is consistent with the letter and spirit

of the Bureau's authority as derived from section 3621(e). The

loss of the mere opportunity to be considered for discretionary

early release is too speculative to constitute a deprivation of a

constitutionally protected liberty interest. See Luken v. Scott,

71 F.3d 192, 193 (5th Cir.1995) (holding that opportunity to earn

good-time credits, which might lead to earlier release does not

constitute a constitutionally protected liberty interest), cert.

denied,

--- U.S. ----, 116 S.Ct. 1690, 134 L.Ed.2d 791 (1996).

Accordingly, we REVERSE the order granted by the district court in

Venegas v. Henman, No. 97-30042, and AFFIRM the dismissals and

denials of habeas relief ordered by the district court in Wilson,

et al. v. Bureau of Prisons, et al., No. 96-11470.