The opinion of the court was delivered by: Orlofsky, District Judge
In this petition filed by a federal prisoner for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, I must decide whether in determining an inmate's eligibility for a period of early release under the Residential Drug Abuse Program ("RDAP"), codified at 18 U.S.C. § 3621(e)(2)(B), *fn1 the Bureau of Prisons ("BOP") may consider qualifications in addition to those enumerated in the statute. On December 28, 1998, pro se Petitioner Gary T. Magnin ("Magnin") filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, contending that the BOP's governing regulation and internal Program Statement, which permit the consideration of elements other than the offense itself in determining an inmate's eligibility for a sentence reduction, are contrary to the plain language of the statute and congressional intent. For the reasons set forth below, I shall deny the petition for a writ of habeas corpus because I find that in seeking to add additional qualifications to the statutory requirements for early release eligibility, the BOP validly exercised its authority in promulgating the amended regulation, 28 C.F.R. § 550.58, and adopting Program Statement, P.S. 5162.04.
On February 27, 1995, Gary T. Magnin ("Magnin") pled guilty to and was convicted of conspiracy to distribute and possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and unlawful use of a communication facility, in violation of 21 U.S.C. § 843. See Pet'r Mem. of Law at 2; Pet'r Ex. 1; Gov't Answer, Ex. B (Presentence Investigation Report). At sentencing, Magnin received a two-level enhancement pursuant to section 2D1.1(b)(1) of the United States Sentencing Guideline, based upon the recovery of a semi-automatic weapon from his home during the execution of a search warrant. See Pet'r Br. at 3; Gov't Answer, Ex. B. Magnin was sentenced to a prison term of sixty months, followed by a four-year term of supervised release. See Pet'r Br. at 2; Pet'r Ex. 1; Gov't Answer, Ex. A (Public Information Inmate Data Sheet).
While incarcerated in the federal correctional institution at Fort Dix, New Jersey, Magnin was deemed eligible and participated in the Residential Drug Abuse Program ("RDAP"), as provided for in 18 U.S.C. § 3621(e). See Pet'r Br. at 3; Gov't Answer, Ex. C. Although he was eligible for participation in the program, he was informed that he was ineligible for the early-release incentive under 18 U.S.C. § 3621(e)(2)(B) because of his particular sentence enhancement. See, e.g., Pet'r Ex. 2 ("Notification of Instant Offense" (dated May 12, 1998)(finding Magnin ineligible for the commission of a "Crime listed under the Director's Discretion as contained in the Categorization of Offenses Program Statement"); Gov't Answer Ex. D. After exhausting his administrative remedies, see Pet'r Exs.; Gov't Exs. E, F, G, Magnin filed this petition for a writ of habeas corpus contending that the BOP exceeded its statutory authority by categorically excluding from eligibility those inmates convicted of a nonviolent offense who received a sentence enhancement for the use or possession of a firearm. *fn2 After he filed his petition, Magnin was released from Fort Dix and currently is serving a four-year term of supervised release. *fn3
II. THE HISTORY OF 18 U.S.C. § 3621(E)
In passing the Violent Crime Control and Law Enforcement Act of 1994, Congress provided that the BOP "shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse." 18 U.S.C. § 3621(b). To provide an incentive for prisoners to participate in such substance abuse programs, Congress conferred upon the BOP discretion to grant qualifying participants a sentence reduction of up to one year. See id. at § 3621(e)(2)(B). According to the statute, only prisoners convicted of a "nonviolent offense" who successfully complete the program are entitled to consideration for a sentence reduction:
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)(emphasis added).
Shortly after the passage of the Act, the BOP promulgated regulations in an effort to define the term "nonviolent offense." In doing so, the BOP referenced the term "crime of violence" as set forth in the criminal code:
[a]n inmate who completes a residential drug abuse treatment program during his or her current commitment may be eligible for early release by a period not to exceed 12 months, . . . 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) (as amended); see also Roussos v. Menifee, 122 F.3d 159, 160 (3d Cir. 1997). Section 924(c)(3) of Title 18 of the United States Code 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. 18 U.S.C. § 924(c)(3).
The BOP also issued a Program Statement, P.S. 5162.02, which provided that a conviction under 21 U.S.C. § 841 or § 846 would be deemed a "crime of violence" if the sentencing court enhanced the defendant's sentence for possession of a weapon during the commission of the offense because "`possession of a dangerous weapon during commission of a drug offense poses a substantial risk that force may be used against persons or property.'" Roussos, 122 F.3d at 161 (quoting P.S. 5162.02).
In Roussos v. Menifee, 122 F.3d 159 (3d Cir. 1997), the United States Court of Appeals for the Third Circuit held that, based on the plain language of the statute, the BOP could not rely upon sentencing enhancements to deny a prisoner eligibility for the sentence reduction. See id. at 164. The Court found that the Program Statement, P.S. 5162.02, was inconsistent with the clear language of the statute and therefore it was entitled to no deference. See id. Specifically, the Third Circuit held:
By ignoring the offense of conviction and looking only to sentencing factors, the BOP has attempted to transmogrify a "nonviolent offense" into a "crime of violence." In other words, the BOP converted a nonviolent crime into a violent one by means of a Program Statement that is inconsistent with the language of the statute, and its own regulations. More specifically, under the rationale of [the Ninth Circuit case of] Downey [v. Crabtree, 100 F.3d 662 (9th Cir. 1996)], we find the BOP's interpretation of a nonviolent offense in the Program Statement to be in conflict with both 18 U.S.C. § 3621(e)(2)(B) and 28 C.F.R. § 550.58 and therefore erroneous. Id. at 163.
In short, the Roussos court found that "the BOP cannot rely upon [and inmate's] sentencing enhancement to deny him eligibility for the sentence reduction." Id. at 164 (emphasis added). Like the Third Circuit's decision in Roussos, many other Courts of Appeal have held that the BOP exceeded its authority in excluding from early-release eligibility those inmates convicted of a nonviolent offense who received a sentence enhancement for the use of or possession of a firearm. See Orr v. Hawk, 156 F.3d 651 (6th Cir. 1998), as amended by, 172 F.3d 411 (6th Cir. 1999); Fristoe v. Thompson, 144 F.3d 627 (10th Cir. 1998); Byrd v. Hasty, 142 F.3d 1395 (11th Cir. 1998); Martin v. Gerlinski, 133 F.3d 1076 (8th Cir. 1998); Bush v. Pitzer, 133 F.3d 455 (7th Cir. 1997); Downey v. Crabtree, 100 F.3d 662 (9th Cir. 1996); see also LaSorsa v. Spears, 2 F. Supp. 2d 550 ...