* Pursuant to 5TH CIR. R. 47.5, the court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 97-40205

(Summary Calendar)

_________________

ROBERT BRUCE PARTON,

Petitioner - Appellant,

versus

NEWMAN LEE CONNER, Warden,

Respondent - Appellee.

Appeal from the United States District Court

For the Eastern District of Texas

(5:96-CV-287)

November 5, 1997

Before DAVIS, EMILIO M. GARZA, and STEWART Circuit Judges.

PER CURIAM:*

Robert Bruce Parton appeals the dismissal of his petition for

a writ of habeas corpus under 28 U.S.C. § 2241. The district court

dismissed Parton’s petition without prejudice to allow him to

exhaust his administrative remedies. We affirm.

I

While executing a search warrant, police officers seized drugs

and drug manufacturing paraphernalia from Parton’s home. In
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addition, police discovered a semi-automatic pistol on top of a

television in the room where Parton was found. Parton pleaded

guilty to interstate travel in aid of racketeering in violation of

18 U.S.C. § 1952 and to using and carrying a firearm during a drug

trafficking crime in violation of 18 U.S.C. § 924(c)(1). He was

sentenced to a term of thirty months’ imprisonment on the section

1952 count and to a consecutive term of sixty months’ imprisonment

on the section 924(c) count.

While incarcerated, Parton completed a 500-hour comprehensive

drug treatment program. He then contacted Carl Gaconco, the head

of the prison’s residential drug abuse program and requested that

he be considered for a reduction in his sentence pursuant to 18

U.S.C. § 3621(e)(2)(B). Section 3621(e)(2)(B) provides that the

Bureau of Prisons (“BOP”) may reduce, by up to one year, the

sentence of a prisoner who has been “convicted of a nonviolent

offense” if the prisoner has successfully completed an approved

drug education program. 

The statute does not define the phrase “nonviolent offense.”

However, 28 C.F.R. § 550.8 states that the sentence reduction in

section 3621 is unavailable to an inmate whose “offense is

determined to be a crime of violence as defined in 18 U.S.C.

§ 924(c)(3).” Section 924(c)(3) defines a crime of violence as 

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.
 

1 Congress criminalized two, distinct types of conduct under section

924(c)(1): use of a firearm and carrying a firearm during and in relation to a

drug trafficking offense. See Bailey v. United States, ___ U.S. ___, 116 S. Ct.

501, 133 L. Ed. 2d 472 (1995). Section 7 of the program statement references

only the “use” prong in the parenthetical description. 

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The BOP promulgated Program Statement 5162.02 to guide case

managers in the application of section 3621(e)(2)(B) to specific

cases. Section 7 of the statement sets forth criminal offenses

that are “crimes of violence in all cases,” listing them by statute

and providing a brief parenthetical description. If the prisoner’s

offense matches one of the offenses listed, then the BOP will

automatically categorize it as a crime of violence without further

inquiry. One of these inherently violent offenses is listed as

“Title 18 of the United States Code . . . § 924(c) (firearms used

in violent or drug trafficking crimes).” Section 10 of the same

program statement, however, provides that offenses under 18 U.S.C.

§ 924, described as “penalties for firearms violations,” are

offenses “that may be violent depending on a variety of factors.”1

Gaconco deemed Parton ineligible for early release

consideration because Parton’s conviction was classified as a crime

of violence in all cases under section 7 of the program statement.

Pursuant to administrative policy, Parton made an informal

resolution attempt, repeating his request and arguing that section

10 of the program statement directed case managers to carefully

examine the particular facts of his section 924(c) conviction.

Parton included copies of transcripts from his original trial in

which the trial judge specifically concluded that Parton’s
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particular section 924(c) conviction was not a crime of violence.

The BOP again denied Parton relief because he had been convicted of

“use and carried [sic] a firearm during a drug trafficking crime”

under section 924(c) and that, “according to the operation

memorandum,” he was ineligible for the early release program.

Parton appealed to the warden and then to the BOP’s regional and

national counsels, who denied Parton’s request for early release on

the same ground. 

Parton then petitioned for a writ of habeas corpus in district

court, challenging the BOP’s interpretation of “nonviolent offense”

in section 3621(e)(2)(B). The district court, while finding

Parton’s argument for relief “compelling,” nonetheless dismissed

his petition without prejudice to enable Parton to exhaust his

administrative remedies with respect to the distinction between the

“use” and “carry” prongs in section 924(c). Parton timely

appealed.

II

Parton argues on appeal that he has already exhausted his

administrative remedies and that additional review would be futile

since the BOP mechanically applies section 7 of the program

statement to exclude all section 924(c)(1) offenses regardless of

the specific facts of the case. A prisoner challenging a decision

of the BOP must exhaust his administrative remedies before seeking

habeas relief in federal court under 28 U.S.C. § 2241. Fuller v.

Rich, 11 F.3d 61, 62 (5th Cir. 1994). “‘Exceptions to the

exhaustion requirement are appropriate where the available
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administrative remedies either are unavailable or wholly

inappropriate to the relief sought, or where attempt to exhaust

such remedies would itself be a patently futile course of action.’”

Id. (quoting Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th Cir.

1985)). Exceptions to the exhaustion requirement are reserved for

extraordinary circumstances, and Parton has the burden of

demonstrating the futility of further review. Id. We review the

district court’s dismissal of Parton’s petition for abuse of

discretion. Id.

Although the record establishes that Parton sought relief at

every possible level of appeal within the BOP, the district court

nonetheless dismissed Parton’s petition in order to allow him to

exhaust his remedies with respect to the distinction between “use”

and “carry” under section 924(c)(1) in light of the intervening

Supreme Court decision in Bailey v. United States, ___ U.S. ___,

116 S. Ct. 501, 133 L. Ed. 2d 472 (1995). The district court noted

that section 7 of the program statement, listing offenses that are

violent in all cases, refers only to offenses involving the “use”

of a firearm during a drug trafficking offense, without reference

to the “carry” prong of the statute. Parton pleaded guilty to an

indictment charging him with both using and carrying a firearm in

violation of section 924(c)(1). After the BOP denied Parton’s

request for early release, however, the Supreme Court significantly

narrowed the applicability of the “use” prong of § 924(c). Id.,

116 S. Ct. at 508. The Court held that to demonstrate “use,” the

government must show that the defendant actively employed the
 

2 Because Congress was silent concerning the proper definition of

“nonviolent offense,” the BOP, as the agency charged with administering the early

release program, has broad discretion to adopt any reasonable interpretation of

the term. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 843, 844, 104 S. Ct. 2778, 2782, 81 L. Ed. 2d 694 (1984) (“If Congress

has explicitly left a gap for the agency to fill, there is an express delegation

of authority to the agency to elucidate a specific provision of the statute by

regulation. . . . [A] court may not substitute its own construction of a

statutory provision for a reasonable interpretation made by the administrator

of an agency.”). Of course, interpretations found only in BOP program statements

are entitled to less deference than published regulations because they are not

promulgated subject to the rigors of notice and comment rulemaking under the

Administrative Procedure Act. Reno v. Koray, 515 U.S. 50, ___, 115 S. Ct. 2021,

2027, 132 L. Ed. 2d 46 (1995); see also Roussos v. Menifee, ___ F.3d ___, 1997

WL 401319, *5 (3d Cir. July 18, 1997); Downey v. Crabtree, 100 F.3d 662, 666 (9th

Cir. 1996). However, if the BOP’s interpretation of the statute is reasonable

and does not conflict with the language of section 3621(e)(2)(B) or section

923(c)(3), federal courts may not simply second-guess that interpretation. See

Roussos, 1997 WL 401319 at *5.

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firearm during and in relation to the drug trafficking offense.

Active employment “includes brandishing, displaying, bartering,

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

firearm,” but not mere possession or proximity to drugs or drug

proceeds. Id. 

Because of this “active employment” requirement in Bailey, a

conviction under the “use” prong certainly satisfies the definition

in section 924(c)(3)(A) of “crime of violence” because an element

of the offense is “the use, attempted use, or threatened use of

physical force against the person or property of another.”

Therefore, it is not unreasonable for the BOP to conclude that a

prisoner convicted under the “use” prong is automatically

ineligible for release under section 3621(e)(2)(B).2 Sesler v.

Pitzer, 110 F.3d 569, 571 (8th Cir.), petition for cert. filed, ___

U.S.L.W. ___ (U.S. Jul. 7, 1997) (No. 97-5126). Moreover, the BOP

may properly deny inmates eligibility for early release on the
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basis of “use” convictions without individualized consideration.

See Jacks v. Crabtree, 114 F.3d 983, 985-86 (5th Cir. 1997) (citing

“well-established principle of administrative law that an agency to

whom Congress grants discretion may elect between rulemaking and ad

hoc adjudication” in support of conclusion that BOP may

categorically deny eligibility for early release pursuant to

reasonable rule of general applicability). 

However, it is less clear that the BOP may properly classify

the offense of “carrying” a firearm during and in relation to a

drug trafficking crime as a violent offense. Compare Davis v.

Crabtree, 109 F.3d 566, 569 (9th Cir. 1997) (holding that mere

possession of firearm during commission of drug trafficking offense

cannot be violent crime for purposes of section 3621(e)(2)(B)),

with Sesler, 110 F.3d at 572 (citing language of now-repealed 42

U.S.C. § 3796ii-2, passed as part of the same act of Congress as 18

U.S.C. § 3621(e)(2)(B), which defined “violent offender” as one who

“carried, possessed, or used a firearm or dangerous weapon” during

commission of offense). This is an issue of first impression in

this circuit.

We find that the district court was correct in determining

that judicial review of the BOP’s interpretation of “nonviolent

offense” in the policy statement is premature. In order to qualify

for relief under 28 U.S.C. § 2241, Parton must point to a violation

of the Constitution, laws, or treaties of the United States.

Parton alleges that the program statement violates federal law by

classifying all section 924(c) offenses as violent offenses. On
 

3 The record on appeal does not indicate whether Parton has filed a 28

U.S.C. § 2255 petition in the Northern District of Texas, the district of his

conviction, to vacate his conviction under section 924(c)(1). Parton does not

attack the validity of his sentence in the instant appeal, nor would such a claim

be cognizable in a § 2241 habeas petition. A § 2255 petition filed in the

district court of conviction is the proper vehicle for collaterally attacking

errors in the conviction and sentence, while a § 2241 petition filed in the

district in which the petitioner is held in custody is the proper vehicle for

attacking the manner in which an otherwise valid sentence is executed. Ojo v.

INS, 106 F.3d 680, 683 (5th Cir. 1997). A § 2255 petition may be the more

appropriate avenue for relief under the facts of Parton’s case.

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its face, however, the program statement categorically denies early

release only to those prisoners who actively “use” a firearm during

and in relation to a drug trafficking offense. As such, the

program statement does not violate federal law as written.

Nor is it clear that the BOP’s program statement violates

federal law as applied to Parton’s conviction. It appears from the

record that the facts to which Parton stipulated pursuant to his

guilty plea do not support a “use” conviction post-Bailey. United

States v. William Carter, ___ F.3d ___, 1997 WL 374754 (5th Cir.

July 8, 1997) (“A court cannot accept a guilty plea unless there is

a sufficient factual basis for the plea.”); United States v. Hall,

110 F.3d 1155, 1160-61 (5th Cir. 1997) (vacating conviction based

on guilty plea where facts would not support conviction for “use”

where weapon found on floor in same room as defendant).3 Parton,

however, did not address the distinction between the “use” and

“carry” prongs of section 924(c)(1) before the BOP. Therefore, the

BOP has not had the opportunity to consider the proper post-Bailey

application of the program statement to the facts of Parton’s

conviction, nor do we know whether the BOP addresses “carry” under
 

4 Of course, because Parton has not challenged the validity of his

conviction post-Bailey, he remains convicted under the “use” prong of section

924(c)(1). By noting the possible deficiencies in Parton’s conviction, we do not

imply that the BOP must look beyond the mere fact of conviction, only that, given

intervening Supreme Court precedent, it should be afforded the opportunity to do

so. 

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section 7 or section 10 of the program statement.4 Because

administrative relief may be available to Parton, we cannot say

that the district court abused its discretion in dismissing

Parton’s appeal without prejudice.

III

For the foregoing reasons, we AFFIRM the dismissal of Parton’s

petition without prejudice, and deny Parton’s motion for bail

pending appeal.