The Honorable Richard H. Kyle, United States District Judge 1

for the District of Minnesota.

The Honorable Raymond L. Erickson, United States Magistrate 2

Judge for the District of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-2185

___________

Everett Eugene Sesler, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Percy H. Pitzer, Sued as: Percy *

Pitzer, Warden, Federal Prison *

Camp, Duluth, Minnesota, *

*

Appellee. *

___________

 Submitted: February 14, 1997

 Filed: April 7, 1997

___________

Before MAGILL, BEAM, and LOKEN, Circuit Judges.

___________

MAGILL, Circuit Judge.

In this petition for habeas corpus relief pursuant to 28 U.S.C. §

2241 (1994), Everett E. Sesler challenges the Bureau of Prisons’ (BOP)

decision under 18 U.S.C. § 3621(e)(2)(B) (1994) to deny him a one-year

reduction of his sentence. The district court, adopting the report and

1

recommendation of the magistrate judge, denied Sesler’s petition for

2

habeas relief. We affirm.
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I.

The facts of this case are not in dispute. On March 11, 1993, Sesler

pled guilty to using a firearm during and in relation to a drug trafficking

crime, in violation of 18 U.S.C. § 924(c)(1) (1994). Sesler was sentenced

to sixty months of imprisonment followed by three years of supervised

release.

While in prison, Sesler completed a BOP drug education program on

July 15, 1993. Later, while still in prison, Sesler successfully completed

a comprehensive drug abuse program and a forty-hour drug education class

on March 3, 1994. In addition, on March 28, 1994, Sesler received a

certificate for completing the twelve-month, transitional services,

aftercare component of his drug rehabilitation program.

On September 13, 1994, Congress enacted 18 U.S.C. § 3621(e)(2)(B).

This section provides that:

The period a prisoner convicted of a nonviolent offense remains

in custody after successfully completing a [residential

substance abuse] 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). In light of this new provision, Sesler

petitioned the BOP to reduce his sentence by one year. His petition was

denied by the BOP on the ground that he was not eligible for a sentence

reduction under § 3621(e)(2)(B) because he was not convicted of a

nonviolent offense.

After exhausting all possible administrative remedies, Sesler filed

a petition for a writ of habeas corpus pursuant to 28 U.S.C. 
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§ 2241, seeking a reduction of his sentence. He claimed that the BOP’s

interpretation of § 3621(e)(2)(B) was an arbitrary and capricious decision,

an abuse of discretion, and otherwise contrary to law. He also claimed

that his rights under the Equal Protection Clause, the Due Process Clause,

and the Eighth Amendment had been violated. The district court, adopting

the recommendation of the magistrate judge, denied the petition for a writ

of habeas corpus. 

Sesler appeals the decision of the district court. He argues that

the district court erred in refusing to exercise judicial review and that

the BOP improperly interpreted § 3621(e)(2)(B). Sesler, however, has not

raised his constitutional claims on appeal. After Sesler filed this

appeal, he was released from prison and is currently serving his three-year

term of supervised release. 

II.

As a threshold matter, we must consider whether this appeal is moot

now that Sesler has been released from prison. See Calderon v. Moore, 116

S. Ct. 2066, 2067 (1996) (per curiam). Sesler’s appeal is not moot

because, if Sesler’s term of imprisonment had been reduced by one year, his

supervised release would have commenced one year earlier. As a result, if

successful here on appeal, Sesler will be entitled to a one-year reduction

of his term of supervised release. See Mabry v. Johnson, 467 U.S. 504, 507

n.3 (1984) (“This [28 U.S.C. § 2254] case is not moot despite the fact that

respondent has been paroled. Respondent remains in the ‘custody’ of the

State, and whether respondent must serve the sentence now under attack

consecutively to his prior sentences will affect the date at which his

parole will expire under state law.” 
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(citations omitted)); McClain v. Bureau of Prisons, 9 F.3d 503, 505 (6th

Cir. 1993) (per curiam) (Considering a 28 U.S.C. § 2241 action to determine

whether the district court erroneously denied a prisoner credit on his

federal sentence for time incarcerated, the court held: “Petitioner has

been released from federal custody. However, his supervised release dates

are affected by the erroneous computation. Thus, his claim is not moot.”);

Fraley v. United States Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993)

(per curiam) (Considering a 28 U.S.C. § 2241 action in which the prisoner

sought credit for time served under house arrest, the court held: “While

this appeal was pending, Fraley completed her term of imprisonment and was

released. However, because our decision could affect her two-year term of

supervised release, this case is not moot.”).

III.

Sesler argues that the offense of which he was convicted, use of a

firearm during and in relation to a drug trafficking crime, is a

“nonviolent offense” within the meaning of 18 U.S.C. § 3621(e)(2)(B), and

as a result, he is eligible for a one-year sentence reduction under §

3621(e)(2)(B). We disagree.

Under the plain language of § 3621(e)(2)(B), only a prisoner

convicted of a nonviolent offense is eligible for the § 3621(e)(2)(B) oneyear sentence reduction. Congress, however, has not defined the term

nonviolent offense. The BOP therefore formulated 28 C.F.R. § 550.58

(1996), which denies eligibility for a § 3621(e)(2)(B) sentence reduction

to “inmates whose 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. Section

924(c)(3), in turn, defines a crime of violence as:
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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. § 924(c)(3) (1994). In order to promote uniform administration,

the BOP has also issued a Program Statement which specifically defines §

924(c)(1) violations as crimes of violence in all cases. See BOP Program

Statement 5162.02 Definition of Term, “Crime of Violence” at § 7(a) (July

24, 1995), reprinted in Jt. App. at 48. As a result, because Sesler was

convicted of a § 924(c)(1) offense, he was automatically disqualified from

being eligible for the § 3621(e)(2)(B) sentence reduction.

For Sesler to have been convicted under § 924(c)(1), there must have

been sufficient evidence to show that he actively employed a firearm in

such a way that the firearm was “an operative factor in relation to the

predicate [drug trafficking] offense.” Bailey v. United States, 116 S. Ct.

501, 505 (1995). Active employment “includes brandishing, displaying,

bartering, striking with, and most obviously, firing or attempting to fire,

a firearm.” Id. at 508. Given the elements necessary for a § 924(c)(1)

conviction, we agree with the BOP’s conclusion that a § 924(c)(1) offense

is clearly not a nonviolent offense within the meaning of § 3621(e)(2)(B).

Furthermore, both § 3621(e)(2)(B) and 42 U.S.C. § 3796ii-2 (1994)

were enacted as part of the Violent Crime Control and Law Enforcement Act

of 1994, Pub. L. No. 103-322, 108 Stat. 1796. Consequently, it is

reasonable to construe terms common to both 
See Omnibus Consolidated Rescissions and Appropriations Act 3

of 1996, Pub. L. No. 104-134, § 20112, 110 Stat. 1321.

The government also argues that there is clear and 4

convincing evidence that Congress has foreclosed judicial review

of the BOP’s interpretation of § 3621(e)(2)(B). See Abbott Lab.

v. Gardner, 387 U.S. 136, 141 (1967) (“[O]nly upon a showing of

‘clear and convincing evidence’ of a contrary legislative intent

should the courts restrict access to judicial review.”). In

support of this argument, the government points to 18 U.S.C. §

3625 (1994), which provides: “[t]he provisions of sections 554

and 555 and 701 through 706 of title 5, United States Code, do

not apply to the making of any determination, decision, or order

under [the subchapter in which § 3621 is found].” 18 U.S.C. §

3625. The government argues that, by calling off these

provisions of the Administrative Procedure Act, Congress has

clearly expressed its intention of foreclosing judicial review. 

According to the government, although this Court retains

limited jurisdiction to determine whether the BOP’s actions

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§ 3796ii-2 and § 3621(e)(2)(B) to have the same meaning. See Gozlon-Peretz

v. United States, 498 U.S. 395, 407-08 (1991) (“It is not uncommon to refer

to other, related legislative enactments when interpreting specialized

statutory terms,” since Congress is presumed to have “legislated with

reference to” those terms.); see also Reno v. Koray, 115 S. Ct. 2021, 2025

(1995) (construing language of 18 U.S.C. § 3585(b) in conjunction with the

Bail Reform Act of 1984 because § 3585 and the Bail Reform Act deal with

the same subject matter). 

In § 3796ii-2, though it has since been repealed, Congress defined 3

the term “violent offender” as “a person who is charged with or convicted

of an offense, during the course of which offense or conduct the person

carried, possessed, or used a firearm or dangerous weapon . . . .” 42

U.S.C. § 3796ii-2 (emphasis added). Therefore, because Sesler was

convicted of using a firearm during and in relation to a drug trafficking

offense, he would be a violent offender for purposes of § 3796ii-2. Hence,

for purposes of § 3796ii-2, Sesler was not convicted of a nonviolent

offense. Thus, § 3796ii-2 lends further support to the conclusion that,

under § 3621(e)(2)(B), the term nonviolent offense does not include §

924(c)(1) violations.4
exceeded the agency’s statutory authority or violated the

Constitution, cf. Wajda v. United States, 64 F.3d 385, 388 (8th

Cir. 1995) (holding that federal courts retain jurisdiction to

determine whether the United States Parole Commission exceeded

its statutory authority or violated the Constitution

notwithstanding the federal courts’ lack of jurisdiction to

review substantive decisions), the BOP’s decision to deny Sesler

a one-year reduction of his sentence is unreviewable. Only

because we agree with the BOP’s conclusion that prisoners

convicted of § 924(c)(1) offenses are clearly ineligible for §

3621(e)(2)(B) sentence reductions do we not reach this issue. 

See Secretary of the Navy v. Avrech, 418 U.S. 676, 677-78 (1974)

(per curiam) (“Assuming, arguendo, that the District Court had

jurisdiction under the circumstances of this case to review the

decision of the court-martial, our decision in Parker v. Levy,

417 U.S. 733 (1974), would require reversal of the Court of

Appeals’ decision on the merits of appellee’s constitutional

challenge to Art. 134. We believe that even the most diligent

and zealous advocate could find his ardor somewhat dampened in

arguing a jurisdictional issue where the decision on the merits

is thus foreordained. We accordingly leave to a future case the

resolution of the jurisdictional issue . . . .”).

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For the foregoing reasons, we affirm the decision of the district

court.

BEAM, Circuit Judge, concurring in the opinion of the court, except for

Part II, and concurring in the result.

A true copy.

Attest:

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