The opinion of the court was delivered by: FRIEDMAN
William F. Miller, who is presently incarcerated, brings this civil rights action under 42 U.S.C. § 1983 and the Administrative Procedure Act, 5 U.S.C. § 553 et seq. He alleges that the Federal Bureau of Prisons has violated his constitutional and statutory rights by its restrictive interpretation of 18 U.S.C. § 3621(e)(2)(B) which permits a one-year sentence reduction for nonviolent offenders who successfully complete a substance abuse treatment program. Plaintiff seeks declaratory and injunctive relief and damages. Defendants have moved to dismiss.
Plaintiff pleaded guilty in the United States District Court for the District of New Mexico to possession with intent to distribute less than 50 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D), and to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). He was sentenced to 46 months' imprisonment. On March 21, 1997, plaintiff successfully completed a 500 hour substance abuse treatment program.
The Bureau of Prisons has determined, however, that plaintiff is ineligible for early release under 18 U.S.C. § 3621(e)(2)(B) because he is not a "nonviolent offender" under BOP Program Statement 5162.02 ("P.S. 5162.02") by virtue of his plea of guilty to a violation of 18 U.S.C. § 922(g).
This case presents the issue of whether the BOP exceeded its authority when it included the "felon in possession" offense of 18 U.S.C. § 922(g) in its definition of a violent crime for the purposes of applying 18 U.S.C. § 3621(e)(2)(B). The Ninth Circuit recently rejected the BOP's interpretation of Section 3621(e) based on its treatment of gun possession as a violent offense. See Downey v. Crabtree, 100 F.3d 662, 667-68 (9th Cir. 1996). The government has provided copies of unpublished decisions by several district courts that reached the opposite conclusion and have upheld the BOP's treatment of a felon-in-possession conviction as a violent offense. See Fonner v. Thompson, 955 F. Supp. 638 (N.D. W. Va. 1997); Litman v. U.S. Bureau of Prisons, 1996 U.S. Dist. LEXIS 21212, C.A. No. 96-1207 (D. N.J. 1996); Sorrells v. U.S. Bureau of Prisons, C.A. No. 96-0155, Slip Op. at 2 (W. D. Tex. June 10, 1996).
18 U.S.C. § 3621(e)(2)(B) was passed as part of the Violent Crime Control and Law Enforcement Act of 1994 ("VCCLEA"), Pub. L. No. 103-322, 108 Stat. 1796, 1896 (1994). It provides:
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). VCCLEA does not define the term "nonviolent offense" for the purposes of this section, but it refers in a nearby section to "a crime of violence (as defined in section 924(c)(3))." See 18 U.S.C. § 4042(b)(3).
Both sides assume that a nonviolent offense is the converse of a crime of violence. See Defs.' Mot. at 6; Pl.'s Opp'n at 9. Indeed, the BOP expressly incorporates the "crime of violence" definition of 18 U.S.C. § 924(c)(3) in its regulations governing consideration for early release. See 28 C.F.R. § 550.58. See also Downey v. Crabtree, 100 F.3d 662, 666-68 (9th Cir. 1996) (treating "non-violent offense" as the converse of "crime of violence"). Defendants maintain, however, that the BOP is not strictly constrained by the definition of "crime of violence" in Section 924(c)(3) but can expand upon it where it sees fit.
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). P.S. 5162.02, entitled "Definition of Term 'Crimes of Violence,'" incorporates this definition, but then goes further and enumerates various criminal code sections the violation of which the BOP treats as violent crimes as a matter of policy. P.S. 5162.02 lists 18 U.S.C. § 922(g), the section under which plaintiff was convicted, as such a crime. In fact it lists it twice, both in Section 7, which defines offenses that are crimes of violence in all cases, and in Section 10, which defines offenses that may be crimes ...