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

### APR 28 1998 

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

TENTH CIRCUIT

JAMES R. FRISTOE,

Petitioner-Appellant,

v. R.G. THOMPSON, Warden,

Respondent-Appellee. No. 97-6246

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

(D.C. No. 96-CV-273)

Submitted on the briefs: James R. Fristoe, pro se. Patrick M. Ryan, United States Attorney, Ronny D. P yle, Assistant United States Attorney, Western District of Oklahoma, Oklahoma Ci ty, Oklahoma.

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

McKAY , Circuit Judge.1 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); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral ar gument.

-2- Appellant James R. Fristoe appeals from the distric t court’s order denying his petition for a writ of habeas corpus pursuant t o 28 U.S.C. § 2241. 1 The issue to be resolved in this appeal is whether a prisonerconvicted of a nonviolent drug offense, whose sentence was enhanced for possessionof a firearm, is categorically disqualified from receiving a sentenc e reduction made available only to prisoners convicted of “nonviolent offenses.” S ee 18 U.S.C. § 3621(e)(2)(B). The district court concluded that the Bureau of Pri sons (BOP) acted permissibly in adopting an interpretation of the statute which examines sentencing factors as well as the crime of conviction in determining whether an inmate is eligible for the sentence reduction. We reverse.

I. Appellant is presently incarcerated, serving an eig hty-four month sentence imposed on February 7, 1994, after he pled guilty t o conspiracy to distribute cocaine base and cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. At sentencing, he received a two-level se ntence enhancement for-3-

possession of a firearm during the course of a drug trafficking conspiracy. See U.S.S.G. § 2D1.1(b)(1). In his petition, appellant contends that the BOP ha s wrongfully denied him eligibility for a sentence reduction for his succes sful completion of a drug treatment program under 18 U.S.C. § 3621(e)(2)(B) o f the Violent Crime Control and Law Enforcement Act of 1994. The Act provides in pertinent part: (2) Incentive for prisoners’ successful completion of treatment program.--

. . . (B) Period of custody.--The period a prisoner convi cted of a nonviolent offense remains in custody after success fully completing a treatment program may be reduced by the Bureau of P risons, but such reduction may not be more than one year from the te rm the prisoner must otherwise serve. 18 U.S.C. § 3621(e)(2)(B). The statute does not define a “nonviolent offense.” The BOP has established a regulation, however, which implements that qualification by excluding persons whose current offense is a “crime of violence,” as that term is2 A “crime of violence” pursuant to 18 U.S.C. § 924(c )(3), includes:

an offense that is a felony and-- (A) has as an element the use, attempted use, or th reatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial riskthat physical force against the person or property of another maybe used in the course of committing the offense. -4- defined in the Criminal Code at 18 U.S.C. § 924(c)( 3). 2The version of this regulation in effect at the time of appellant’s app lication stated as follows: An inmate who completes a residential drug abuse tr eatment program during his or her current commitment may be eligibl e for early release by a period not to exceed 12 months, in acc ordance with paragraph (a) of this section . . . unless the inmate’s 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 (1995).
The BOP has further determined the scope of the term “crime of violence” through issuance of its Program Statement 5162.02. Section 9 of the Program Statement provides that convictions, like appellant ’s, obtained under 21 U.S.C. § 841 or § 846, should be considered convictions fo r a “crime of violence” if the sentencing court increased the base level of the se ntence for possession of a dangerous weapon during the commission of the offen se. Under the rationale of the Program Statement and the regulation, then, app ellant’s crime was not a-5-

“nonviolent offense,” because of the sentencing enh ancement, and he was therefore ineligible for the sentence reduction.

II. Appellant’s entitlement to relief depends on his sh owing that “[h]e is in custody in violation of the Constitution or laws ortreaties of the United States.” 28 U.S.C. § 2241(c)(3). Appellant presents several constitutional arguments to satisfy this predicate. We consider each of these claims in turn. Appellant first raises a claim under the Due Proces s Clause. To make out a due process claim, appellant must assert the infrin gement of a protected liberty interest. See Kentucky Dep’t of Corrections v. Thompson , 490 U.S. 454, 460 (1989). A protected liberty interest may arise fro m either the Due Process Clause itself, or from a state or federal law. See id. ; cf. Miller v. Federal Bureau of Prisons , 989 F.2d 420, 423 n.4 (10th Cir. 1993) (noting ru le in circuits holding former federal parole statute created liberty inter est). The Constitution does not itself afford appellant aliberty interest in a reduced sentence. A convicted person has no consti tutional or inherent right to be conditionally released before the expiration of a v alid sentence. See Greenholtz v. Inmates of Nebraska Penal & Correctional Complex , 442 U.S. 1, 7 (1979). Neither does § 3621(e)(2)(B) create a liberty inter est. It states that the inmate’s sentence “maybe reduced by the Bureau of Prisons.” (emphasis ad ded).-6-

A statute which allows a decisionmaker to deny the requested relief within its unfettered discretion does not create a constitutio nally-recognized liberty interest.
See Olim v. Wakinekona , 461 U.S. 238, 249 (1983). Appellant’s due proces s claim fails, therefore, because he has not demonstr ated that he has a liberty interest in the sentence reduction which he seeks. Appellant next claims that the failure to grant hima sentence reduction violates the Ex Post Facto Clause of the Constituti on. He argues that since he entered the rehabilitation program before the BOP p romulgated its definition of a “crime of violence,” that definition cannot now be applied to him. There is no ex post facto violation here, because the challenged r egulation did not affect the legal consequences of appellant’s crime or increase his punishment. See Stiver v. Meko , 130 F.3d 574, 578 (3d Cir. 1997) (rejecting simil ar argument). Finally, appellant argues that the BOP’s refusal to consider him for sentence reduction violates the Equal Protection Cl ause. He notes that the BOP has acquiesced in a Ninth Circuit case invalidating its interpretation of § 3621(d)(2)(B) under similar circumstances. See Downey v. Crabtree , 100 F.3d 662, 671 (9th Cir. 1996). Contrary to appellant’s contentions, however, the BOP is not compelled by equal protection principles to acquiesce nationwide in the Ninth Circuit’s decision. See Castillo-Felix v. INS , 601 F.2d 459, 467 (9th Cir. 1979) (INS was not compelled by equal protection pr inciples to obey holding of-7-

Second Circuit Court of Appeals outside the Second Circuit). “It is elementary that decisions of one Court of Appeals cannot bind another.” Id. Under our legal system, authoritative decisions of that nature are left to the United States Supreme
Court.

III. Although appellant’s constitutional arguments are u navailing, our work is not finished. His pro se complaint also raised the issue of whether the BOP has adopted a permissible construction of the statute. In his answer brief, appellee asserts that review o f BOP decisions under § 3621(e)(2)(B) is not available under the Administrative Procedure Act (APA).
See 18 U.S.C. § 3625. While § 3625 may preclude us fr om reviewing the BOP’s substantive decision in appellant’s case, it does n ot prevent us from interpreting the statute to determine whether the BOP exceeded i ts statutory authority. See,
e.g. , Martin v. Gerlinski , 133 F.3d 1076, 1079 (8th Cir. 1998); Roussos v. Menifee , 122 F.3d 159, 163 (3d Cir. 1997). We recently discussed the analysis we follow when e xamining the agency’s construction of a statutory term. See Southern Ute Indian Tribe v. Amoco Prod.
Co. , 119 F.3d 816, 830-36 (10th Cir. 1997). We begin by asking whether Congress has “directly spoken to the precise questi on at issue.” Id. at 830-8-

(further quotation omitted). Congress has not defi ned a “nonviolent offense” for purposes of this statute. We next ask whether Congress has delegated to the a gency the responsibility to address the question. See id. at 831. It is undisputed that the BOP has been delegated the authority to interpret § 3621(e)(2)(B). However, we must also ask whether this delegation of authority carries with it the discretion to interpret the statute with the force of law utilizi ng the particular format at issue, i.e., a program statement. See Southern Ute Indian Tribe , 119 F.3d at 832. An agency’s interpretation of a statute by formal regu lation or adjudication is entitled to deference, so long as the agency’s inte rpretation is based upon a permissible construction of the statute. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 843 (1984). Where the agency’s interpretation of the statute is made informally, h owever, such as by a “program statement,” the interpretation is not entitled to C hevrondeference, but will instead be considered only to the extent that it is well-re asoned and has “power to persuade.” See Southern Ute Indian Tribe , 119 F.3d at 834. We begin by noting that courts typically do not con sider the predicate drug offense here, conspiracy to distribute cocaine, a “ crime of violence.” See, e.g. , United States v. Diaz , 778 F.2d 86, 88 (2d Cir. 1985) (holding, under fo rmer version of 18 U.S.C. § 924(c), that drug conspiracywas not a “crime of-9-

violence”). The BOP’s classification of appellant’ s offense as a “crime of violence,” therefore, must rest entirely upon consi deration of sentencing factors which are not implicated categorically by the natur e of his underlying offense. Reliance on sentencing enhancements, however, confl icts with the plain language of the statute. Section 3621(e)(2)(B) ref ers to prisoners “convictedof a nonviolent offense .” (emphasis added). The statute does not permit r esort to sentencing factors or sentencing enhancements attac hed to the nonviolent offense. In United States v. Wagner , 994 F.2d 1467, 1474 (10th Cir. 1993), we considered whether the government could use relevant conduct to classify a violation of 21 U.S.C. § 841(d) as a “controlled su bstance offense,” for purposes of a career offender provision, U.S.S.G. § 4B1.1. We noted that an “offense,” for purposes of the sentencing guidelines, usually incl udes all relevant conduct. See Wagner , 994 F.2d at 1474. However, since the specific de finition of “controlled substance offense” employed in U.S.S.G. § 4B1.2(2) referred directly to the charged offense, rather than to all relevant conduc t, resort to the relevant conduct was not permitted. See id. The same is true here. The eligibility criteria in18 U.S.C. § 3621(e)(2)(B) refer directly to the offense for which the prisone r was convicted. The BOP’s program statement definition of a “nonviolent offen se” is not well-reasoned, and-10-

fails to persuade us that it is entitled to deferen ce. The BOP’s interpretation violates the plain language of the statute and cann ot be upheld. We are joined in this view by the majority of circu its which have considered this question. See Martin , 133 F.3d 1076, 1079-81; Bush v. Pitzer , 133 F.3d 455, 456-57 (7th Cir. 1997); Roussos , 122 F.3d 159, 161-64; Downey , 100 F.3d at 666-71; see also Sisneros v. Booker , 981 F. Supp. 1374, 1376-77 (D. Colo. 1997). Only the Fifth Circuit has upheld the BOP’s program statement against a similar challenge. See Venegas v. Henman , 126 F.3d 760, 761-62 (5th Cir. 1997), petition for cert. filed , No. 97-7727 (U.S. Jan. 29, 1998). In Venegas , noting the discretion given to the BOP in particu lar cases, the Fifth Circuit took the position that “the use of th e phrase ‘a nonviolent offense’ merely excludes all inherently violent offenses fro m eligibility for consideration, while leaving to the Bureau’s discretion the determ ination of which other offenses will or will not be eligible for consideration.” 1 26 F.3d at 763 (emphasis added). In our view, this rationale avoids the central ques tion: whether the BOP may treat a sentence enhancement as though it were the “convi ction” of such “other offense.” Unless this is permissible, the Fifth Ci rcuit’s approach would permit the BOP to treat nonviolent offenders as though the y were convicted of a violent3 Even if the BOP were allowed to exclude inmates convicted of

nonviolent crimes based on the nature of the senten cing enhancement, the enhancement for “possession of a firearm” at issue here might not justify a categorical exclusion based on a “crime of violence .” See, e.g. , Downey , 100 F.3d at 668-69. The Downeycourt found support for its conclusion in § 4B1.2 of the United States Sentencing Guidelines, which cont ains a definition of the term “crime of violence” substantially similar to that c ontained in § 924(c). The Sentencing Commission’s Application Notes to § 4B1. 2 specifically provide: “The term ‘crime of violence’ does not include the offense of unlawful possession of a firearm by a felon.’” Id. at Application Note 2; see also Stinson v. United States , 508 U.S. 36, 47 (1993) (upholding Sentencing Comm ission’s exclusion of possession of firearm by convicted felon from defin ition of “crime of violence”). In light of our holding that any resort to sentenci ng factors in the absence of conviction of an offense which constitutes a crime of violence is impermissible, we need not reach this issue. -11- offense, undermining the express language of the st atute. We therefore find the Fifth Circuit’s approach unpersuasive. 3

IV. Having determined that the BOP exceeded its authori ty in categorically excluding from consideration inmates convicted of n onviolent offenses who received a sentencing enhancement for possession of a firearm, we move on to the appropriate relief to be granted in this case. App ellee correctly points out that we do not have authority to grant appellant the senten ce reduction, because that decision rests with the BOP. Therefore, the judgme nt of the United States District Court for the Western District of Oklahomais REVERSED and-12-

REMANDED to the district court for further remand t o the Bureau of Prisons for further proceedings consistent with this opinion. The mandate shall issue forthwith.