* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

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

### AUG 18 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RONALD DAVID SUTHERLAND, Petitioner - Appellant, vs. L. E. FLEMMING, Respondent - Appellee. No. 00-6038 (D.C. No. 99-CV-264-L) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , KELLY , and MURPHY , Circuit Judges. **

Petitioner-Appellant Ronald Sutherland seeks to app eal from the denial of his habeas petition, 28 U.S.C. § 2241. In 1994, Mr . Sutherland was convicted of unlawful possession of a machine gun, 18 U.S.C. §§ 922(o), 924(a)(2), and was sentenced to 51 months federal imprisonment in the custody of the Bureau of Prisons (BOP) and three years supervised release. Upon completion of a1 Mr. Sutherland also sought relief in the district c ourt from a BOP decision

that he has a conviction for aggressive or intimidating behavior. However, this issue is not raised on appeal and we need not addre ss it. - 2 - substance abuse treatment program, Mr. Sutherland s ought a one year reduction in his sentence under 18 U.S.C. § 3621(e)(2)(B). The BOP denied his request, pointing out that such a reduction was only availab le to prisoners “convicted of a nonviolent offense,” id ., and possession of a machine gun was considered acrime of violence. Mr. Sutherland challenged this determ ination before the district court, asserting that mere possession of a machine gun should not be viewed as a crime of violence. He also sought a declaratory ju dgment that the notice provisions of 18 U.S.C. § 4042(b) do not apply to h im. The district court denied his petition and we affirm. 1 The only questions raised in this appeal are legal and we accordingly review the decision of the district court de novo. Our review of the BOP’s action related to the § 3621(b)(e)(2)(B) challenge is limi ted to determining “whether the BOP exceeded its statutory authority.” Fristoe v. Thompson , 144 F.3d 627, 630- 31 (10th Cir. 1998). See also Taylor v. United States Bureau of Prisons , No. 98- 3176, 1999 WL 84249, at **2 (10th Cir. Feb. 22, 199 9) (applying limited review to BOP decision that conviction for being a convict ed felon in possession of a firearm was a crime of violence for purposes of § 3 621(e)(2)(B)). The § 4042(b) question, however, does not implicate a duly enacte d agency regulation, and we- 3 -

therefore address that issue without any deference to the BOP’s interpretation.
See Royce v. Hahn , 151 F.3d 116, 123 (3d Cir. 1998). 18 U.S.C. § 3621(e)(2)(B) states: The period a prisoner convicted of a nonviolent off ense 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 on e year from the term the prisoner must otherwise serv e. The BOP has interpreted this provision as a grant o f discretionary authority to reduce sentences unless the prisoner has been convi cted of a “crime of violence.” 28 C.F.R. § 550.58(a)(1)(vi)(B), the regulation int erpreting § 3621(e)(2)(B), specifically excludes from sentence reduction eligi bility those inmates who have been convicted of a felony that “involved the carry ing, possession, or use of a firearm . . . .” See also BOP Program Statement 5162.04 (1997). The BOP’s characterization of possession of a machi ne gun as a crime of violence is a reasonable interpretation of § 3621(e )(2)(B). See Cook v. Wiley , 208 F.3d 1314, 1322 (11th Cir. 2000) (noting that B OP’s interpretation of “nonviolent offense” under § 3621(e)(2)(B) need onl y be reasonable to be upheld). In order to qualify as a violent crime, t he underlying conviction need not involve the actual use of force or violence. Rathe r, it need only involve “a substantial risk that physical force against the pe rson or property of another may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)(b).2 Despite Mr. Sutherland’s contentions to the contrary, the BOP’s action

does not conflict with our decisions in Ward v. Boo ker , 202 F.3d 1249 (10th Cir. 2000) and Fristoe v. Thompson , 144 F.3d 627 (10th Cir. 1998). Those cases held that the BOP may not consider sentencing factors indetermining whether a prisoner had committed a crime of violence. Becaus e the BOP based its decision upon Mr. Sutherland’s conviction, rather than any s entencing enhancements, neither Fristoe nor Wardis relevant. - 4 - Possession of a machine gun, by its very nature, in volves a substantial risk of violence or force, see United States v. Amparo , 68 F.3d 1222, 1226 (9th Cir. 1995) (upholding jury instruction that possession o f a sawed-off shotgun was a “crime of violence” under § 924(c)(3)(B)), and the BOP did not act outside its authority by characterizing § 922(o) offenses as cr imes of violence. 2
Mr. Sutherland’s second claim involves the notification provision of 18 U.S.C. § 4042(b), which requires the BOP to give no tice to local law enforcement at least five days before releasing a prisoner into the local community. This requirement applies to all prisoners who have been convicted of “a crime of violence (as defined in section 924(c)(3)).” 18 U. S.C. § 4042(b)(3)(B). Mr. Sutherland criminal history includes several burglaries, including a 1977 Texas conviction for “Burglary of a Building.” The sole question we address is whether this burglary conviction is properly characterized as a crime of violence under § 924(c)(3). In determining what constitutes a “crime of violenc e,” we look only to the statutory definition of the crime itself, and not t he underlying facts of the specific3 Our decisions in United States v. Smith , 10 F.3d 724 (10th Cir. 1993) and

United States v. Bennett , 108 F.3d 1315 (10th Cir. 1997) are not to the con trary. Both of those cases involved the interpretation of a “crime of violence” under § 4B1.2 of the Sentencing Guidelines. In key part, § 4B1.2(a)(2) only includes burglaries of a dwelling or those which involve “co nduct that presents a serious potential risk of physical injury to another.” Not icably absent from this definition is the substantial risk to the property of another. Therefore, neither of those cases is determinative for § 924(c)(3)(B). - 5 - case. See United States v. Reyes-Castro , 13 F.3d 377, 379 (10th Cir. 1993); see also Amparo , 68 F.3d at 1224-25 (discussing application of cat egorical approach to § 924(c)(3) analysis). This court was faced with a similar question in United States v. Frias-Trujillo , 9 F.3d 875 (10th Cir. 1993). In that case, we up held the determination that a Texas burglary was a crime of violence for purposes of 18 U.S.C. § 16 (definitional section). Id . at 877. The language of § 924(c)(3)(B) is almost identical to that of § 16(b), and we find th e reasoning of Frias-Trujillo persuasive. We hold that burglary of a building is always a crime of violence under § 924(c)(3)(B) because it involves a substant ial risk that physical force may be used against the property of another. Therefore , the BOP’s anticipated application of the § 4042(b) notification requireme nts to Mr. Sutherland is
proper. 3 We GRANT the motion to proceed in forma pauperis, and AFFIRM.- 6 - Entered for the Court
Paul J. Kelly, Jr. Circuit Judge