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PICCOLO v. LANSING

August 15, 1996

DANIEL PICCOLO, Petitioner,
v.
DOUGLAS LANSING, Respondent,



The opinion of the court was delivered by: THOMPSON

 THOMPSON, Chief Judge

 This matter is before the Court on Daniel Piccolo's petition for a writ of habeas corpus. Petitioner is incarcerated at the Federal Correctional Institution at Fort Dix, New Jersey. As the proper respondent in a habeas corpus petition is the warden of the institution where the petitioner is housed, the Court will sua sponte substitute Douglas Lansing, Warden of the Federal Correctional Institution at Fort Dix, New Jersey, as the respondent in this action. The Court considered this matter without oral argument.

 Background

 On June 29, 1993 petitioner, a convicted felon, was arrested for possession of a .25 caliber semi-automatic handgun and a .9 millimeter semi-automatic handgun which had been modified to fire as a fully automatic weapon. Petitioner pled guilty to a violation of 18 U.S.C. § 922 (g) (1), felon in possession of a firearm. On September 8, 1994 petitioner was sentenced to a term of thirty seven months incarceration and three years supervised release. His anticipated release date, including time off for good conduct, is May 10, 1997.

 Discussion

 Pursuant to 18 U.S.C. § 3621 (e) (2) (B), "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." Petitioner completed a residential drug treatment program on March 8, 1996. However, the Bureau of Prisons has denied his request for a reduction in his sentence on the grounds that the Bureau does not consider his offense to be a nonviolent offense. See Declaration of Alberto Munguia P 5; Declaration of David DeFrancesco P 5. Petitioner argues that his offense should be considered a nonviolent offense.

 Neither Congress nor the Bureau of Prisons has expressly defined "nonviolent offense" as used in 18 U.S.C. § 3621 (e) (2) (B). However, the Bureau of Prisons has described the term by reference to the definition of "crime of violence as defined in 18 U.S.C. § 924 (c) (3)." See 28 C.F.R. § 550.58. 18 U.S.C. § 924 (c) (3) defines "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.

 In addition, the Bureau of Prisons has issued Program Statement 5162.02 which lists numerous statutory offenses and categorizes them as either crimes of violence in all cases or crimes of violence depending on the facts in a particular case. Violations of 18 U.S.C. 922 (g) (1), felon in possession of a firearm, are listed as crimes of violence in all cases.

 A district court in the Ninth Circuit has held that the Bureau of Prisons has adopted 18 U.S.C. § 924 (c) (3) as the definition of crime of violence, and that in doing so the Bureau is bound by the Ninth Circuit's interpretation of the statute. See Davis v. Crabtree, 923 F. Supp. 166 (D.Ore. 1996); Hines v. Crabtree, 935 F. Supp. 1104, 1996 WL 407490 (D.Ore. 1996). As the Ninth Circuit has held that possession of a weapon by a felon is not a crime of violence under 18 U.S.C. § 924 (c) (3), see United States v. Canon, 993 F.2d 1439, 1441 (9th Cir. 1993), the district court has concluded that the Bureau of Prisons lacks authority to exclude violations of 18 U.S.C. § 922 ...


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