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PAYDON v. HAWK

April 9, 1997

DONALD E. PAYDON, Petitioner,
v.
KATHLEEN HAWK, Director, Bureau of Prisons, Respondent.



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge :

 Pro se Petitioner, Donald E. Paydon, has filed an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, *fn2" alleging that the United States Bureau of Prisons ("BOP"), in classifying his offense of possession of a firearm by a convicted felon, pursuant to 18 U.S.C. § 922(g)(1), a "crime of violence" within the meaning of 18 U.S.C. § 924(c)(3), improperly denied him eligibility for a reduction in sentence pursuant to 18 U.S.C. § 3621(e)(2)(B), and denied him his right to due process of law and equal protection.

 The issue presented by Petitioner's application is whether the BOP's determination that the offense of which he was convicted, possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), is a "crime of violence," within the meaning of § 924(c)(3), and therefore not a "nonviolent offense" under § 3621(e)(2)(B), is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." See 5 U.S.C. § 706(2)(a). For the reasons that follow, this Court finds that the BOP acted within its discretion in classifying the offense of possession of a firearm by a convicted felon a "crime of violence," and that the Petitioner does not have a federally or constitutionally protected right to eligibility for early release upon completion of a drug treatment program. Accordingly, Petitioner's application for a writ of habeas corpus will be denied.

 I. Facts and Procedural History

 Petitioner is currently serving a fifty-one month sentence for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), at the Federal Correctional Institution ("FCI"), Fort Dix, New Jersey. His projected release date is July 17, 1998, based upon the receipt of "good time" credit pursuant to 18 U.S.C. § 3624(b). The BOP has determined that Petitioner's offense of possession of a firearm by a convicted felon does not qualify as a "nonviolent offense" under 18 U.S.C. § 3621, which, inter alia, permits the BOP to reduce the period of custody for an inmate who completes a qualifying drug abuse treatment program.

 On April 24, 1996, Petitioner commenced this action by filing a complaint pursuant to 28 U.S.C. §§ 1331, 1343, alleging that the Respondent's failure to classify his offense as a nonviolent offense under § 3621(e)(2)(B) violated his rights under federal law and the United States Constitution. *fn3" By order dated June 26, 1996, this Court ordered that Petitioner's complaint be construed as an application for a writ of habeas corpus.

 II. Discussion

 Habeas relief under 28 U.S.C. § 2241 is reserved for prisoners who are in custody in violation of the laws or the Constitution of the United States. Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973); Barden v. Keohane, 921 F.2d 476, 481-82 (3d Cir. 1990). Petitioner argues that he is entitled to such relief because the BOP's classification of his offense, possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), as a crime of violence violates federal law and the United States Constitution.

 Pursuant to the Violent Crime Control and Law Enforcement Act of 1994 ("VCCLEA"), Congress vested the BOP with the authority to reduce "the period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program . . . 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). While the statute, itself, does not define which offenses qualify as "nonviolent" offenses, the BOP regulations promulgated thereunder adopt the definition of "crime of violence" contained in 18 U.S.C. § 924(c)(3), *fn4" for the purpose of determining which offenses do not qualify as "nonviolent" offenses under § 3621(e)(2)(B). See 28 C.F.R. § 550.58. *fn5" In addition, Program Statement 5162.02 of the Bureau of Prisons lists numerous offenses and categorizes them as either crimes of violence in all cases or crimes of violence depending on the facts in a particular case for purposes of § 3621. See Respondent's Brief, Ex.E. The BOP's Program Statement lists a violation of § 922(g)(1) as a crime of violence in all cases. Id. Petitioner contends that the BOP improperly considers the offense of which he was convicted, possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), a "crime of violence," within the meaning of § 924(c)(3), and therefore not a "nonviolent offense" under § 3621(e)(2)(B).

 This Court does not review BOP decisions de novo. Indeed, pursuant to the Administrative Procedure Act ("APA"), this Court's review of such BOP classification decisions is limited to whether the decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(a); Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837, 844, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984).

 Thus, only if the BOP's decisions to employ the definition of "crime of violence" contained in § 924(c)(3), for the purpose of determining whether a prisoner has been "convicted of a nonviolent offense" under § 3621(e)(2)(B), and to classify the Petitioner's offense of possession of a firearm by a convicted felon as a "crime of violence" under § 924(c)(3), are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law," see 5 U.S.C. § 706(2)(a), may this Court interfere with the BOP's classification.

 As a threshold matter, it is clear that the BOP's decision to employ the definition of "crime of violence" contained in § 924(c)(3) for the purpose of determining whether a prisoner has been "convicted of a nonviolent offense" under § 3621(e)(2)(B) is not arbitrary. Moreover, I find that "it is reasonable for the BOP to define a nonviolent offender as someone who has not committed a crime of violence." See Crooker v. Morris, 1996 U.S. Dist. LEXIS 15833, No. 95-2820, 1996 WL 608553, *2 (D.N.J. Oct. 17, 1996). Indeed, the validity of 28 C.F.R. § 550.58, the BOP's regulation prescribing the use of the definition of "crime of violence" contained in § 924(c)(3), for the purpose of determining whether a prisoner has been "convicted of a nonviolent offense" under § 3621(e)(2)(B), has been upheld by each of the courts to consider the issue. See, e.g., Davis v. Crabtree, 109 F.3d 566, 1997 U.S. App. LEXIS 5216, 1997 WL 123674 (9th Cir. 1997); Downey v. Crabtree, 100 F.3d 662 (9th Cir. 1996); Fonner v. Thompson, 955 F. Supp. 638, 1997 WL 64088 (N.D.W. Va. 1997); Piccolo v. Lansing, 939 F. Supp. 319 (D.N.J. 1996); Crooker, 1996 U.S. Dist. LEXIS 15833, 1996 WL 608553; Litman v. Morris, 1996 U.S. Dist. LEXIS 21212, No. 96-1207 (D.N.J. July 31, 1996), aff'd 107 F.3d 7 (3d Cir. 1997); Fernandez v. Lansing, No. 96-6000 (D.N.J. July 31, 1996), aff'd 107 F.3d 7 (3d Cir. 1997); Sesler v. Pitzer, 926 F. Supp. 130 (D. Minn. 1996).

 Having concluded that it is proper for the BOP to use the definition of "crime of violence" contained in § 924(c)(3) for the purpose of determining whether a prisoner has been "convicted of a nonviolent offense" under § 3621(e)(2)(B), this Court must now consider whether the BOP's determination that a violation of § 922(g)(1) is a "crime of violence" within the meaning of § 924(c)(3), is "arbitrary, ...


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