Royce v. Hahn

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

8-5-1998

Royce v. Hahn

Precedential or Non-Precedential:

Docket 97-3266

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Filed August 5, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-3266

ZULIKEN S. ROYCE,

Appellant

v.

JOHN E. HAHN, Warden,

Appellee

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. Civ. No. 96-cv-00262E)

ON PANEL REHEARING

Before: STAPLETON, ROTH, and WEIS,

Circuit Judges.

Filed: August 5, 1998

Zuliken S. Royce, Pro Se

Raybrook FCI

P.O. Box 902

Raybrook, New York, 12977-0300

Bonnie R. Schlueter, Esquire

Tina M. Oberdorf, Esquire

Office of the United States Attorney

633 United States Courthouse

Pittsburgh, PA 15219

Attorneys for Appellee

John Hahn, Warden

OPINION OF THE COURT

WEIS, Circuit Judge.

After our original opinion in this case was filed, the

government presented a petition for panel rehearing. We

granted the petition, vacated the opinion, and now consider

the appeal anew.

The issue in this case is whether mere possession of a

firearm by a previously convicted felon is a "crime of

violence" that triggers an obligation of federal prison

authorities to notify local authorities upon an inmate's

release. We answer that question in the negative and

correspondingly hold that a Bureau of Prisons Program

Statement to the contrary represents an incorrect

interpretation of the relevant notification statute.

Petitioner Zuliken S. Royce was incarcerated in the

federal correctional institution at McKean, Pennsylvania

when he filed this habeas corpus petition. He had been

convicted in the United States District Court for the Middle

District of Florida on two counts -- possession of a firearm

by a convicted felon in violation of 18 U.S.C. S 922(g)(1),

and unlawful possession of a machine gun in violation of

18 U.S.C. S 922(o)(1). Although there were two counts, only

one gun was involved. Petitioner had previously been

convicted in state court on three felony drug charges and

one count of second degree attempted burglary.

According to the presentence investigation report for the

current conviction, on February 10, 1993 Secret Service

agents investigating a trail of counterfeit money contacted

petitioner at his business location. Petitioner denied

knowledge of counterfeiting activity and consented to a

search of the premises. At that point, he announced that he

had a "Mac 10" under his desk for protection. The agents

retrieved an unloaded RPB Industries M10, 9 millimeter

machine gun from under the desk. They found no

ammunition on the premises.

Following his conviction and incarceration, prison

authorities classified petitioner as having committed

2

"crimes of violence" pursuant to a definition of that term

contained in the Federal Bureau of Prisons' internal

Program Statement No. 5162.02(7). As a result, he became

subject to 18 U.S.C. S 4042(b), which requires the Bureau

to notify local law enforcement authorities of the imminent

release of inmates who had committed violent crimes and

provide their names, criminal history, parole restrictions,

and proposed residence.

Arguing that his offenses of conviction were not"crimes

of violence," petitioner objected to this classification. After

his appeals through the administrative process proved

unsuccessful, petitioner filed this habeas corpus action in

the United States District Court for the Western District of

Pennsylvania. He alleged that the Bureau exceeded its

authority in classifying his offenses as "crimes of violence"

and in creating Program Statement 5162.02. Petitioner

specifically asked the court to enter a declaratory judgment

that he was "eligible for the non-application of 18 U.S.C.

S 4042[b]."

A magistrate judge recommended that the petition be

denied for lack of subject matter jurisdiction. She reasoned

that, under the traditional test for habeas corpus

jurisdiction, petitioner failed to "make any colorable

allegation that his underlying conviction is invalid or that

he is otherwise being denied his freedom from unlawful

incarceration." Despite the petition's specific request, the

magistrate judge did not rule on the declaratory relief

aspect. The district judge adopted the recommendation and

dismissed the petition.

I.

This court has jurisdiction to review the denial of a

habeas petition under 28 U.S.C. S 1291 and our review is

plenary. United States ex rel. Schiano v. Luther, 954 F.2d

910, 912 (3d Cir. 1992). The pro se petition here challenges

application of section 4042(b)'s notification requirement,

but not the fact or duration of confinement. See Preiser v.

Rodriquez, 411 U.S. 475, 484-85 (1973). Insofar as the

district court found that it did not have subject matter

jurisdiction under traditional 28 U.S.C. S 2241 analysis, the

ruling was correct.

3

The label placed on a petition, however, is not

determinative. As stated in Graham v. Broglin, 922 F.2d

379, 382-83 (7th Cir. 1991), if a petition asks for habeas

corpus relief when petitioner "should have brought a civil

rights suit, all he has done is mislabel his suit, and either

he should be given leave to plead over or the mislabeling

should simply be ignored." See also Fierro v. Gomez, 77

F.3d 301, 305 (9th Cir. 1996) (a court may construe a

section 1983 complaint as a habeas petition and vice

versa), vacated on other grounds, 117 S.Ct. 285 (1996). This

admonition is especially weighty in pro se litigation. See

United States ex rel. Montgomery v. Brierley, 414 F.2d 552,

555 (3d Cir. 1969) (petition prepared by a prisoner may be

inartfully drawn and should be read "with a measure of

tolerance").

An inmate cannot avoid the exhaustion requirements

that may be a prerequisite to a habeas corpus action by

characterizing his suit as a civil rights complaint. Where

exhaustion is not implicated, however, the case should not

be dismissed until other legitimate avenues of relief are

considered. Here, petitioner had already exhausted

available administrative appeals and we conclude that his

petition should have been construed as an action seeking a

declaratory judgment under 28 U.S.C. SS 1331 and 2201.

Rather than remanding for consideration as such by the

district court, we will address the merits of the petition. We

do so in the interest of judicial efficiency because there are

no factual disputes, the issue presented is purely a

question of law, and both parties have briefed the merits.

See, e.g., Gibson v. Scheidemantel, 805 F.2d 135, 139 (3d

Cir. 1986). Moreover, the issue is one frequently recurring

that should be addressed at this time.

II.

The notification provision, 18 U.S.C. S 4042(b), requires

the Bureau of Prisons to notify local law enforcement

officials of the release of a prisoner who was "convicted of

a crime of violence (as defined in section 924(c)(3))."1

_________________________________________________________________

1. 8 U.S.C. S 4042 provides in pertinent part:

4

S 4042(b)(3)(B). In turn, 18 U.S.C. S 924(c)(3) defines a

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."

The firearm possession violations do not require proof of

"use, attempted use, or threatened use" as an element of

the crime. Thus, subsection (A) has no application to the

circumstances of this case; only subsection (B) is relevant.

See United States v. Canon, 993 F.2d 1439, 1441 (9th Cir.

1993). We review the Bureau's interpretation of subsection

(B) for consistency with the plain language of the statute

_________________________________________________________________

(b) "Notice of release of prisoners.-- (1) At least 5 days prior to

the date on which on a prisoner described in paragraph (3) is to be

released on supervised release, . . . written notice of the release

. . .

shall be provided to the chief law enforcement officer of the State

and of the local jurisdiction in which the prisoner will reside.

Notice

prior to release shall be provided by the Director of the Bureau of

Prisons. . . . The notice requirements under this subsection do not

apply in relation to a prisoner being protected under chapter 224.

(2) A notice under paragraph (1) shall disclose --

(A) the prisoner's name;

(B) the prisoner's criminal history, including a description of

the

offense of which the prisoner was convicted; and

(C) any restrictions on conduct or other condi tions to the

release of the prisoner that are imposed by law, the sentencing

court, or the Bureau of Prisons or any other Federal agency.

(3) A prisoner is described in this paragraph if t he prisoner was

convicted of --

(A) a drug trafficking crime, as that term i s defined in section

924(c)(2); or

(B) a crime of violence (as defined in secti on 924(c)(3)).

5

and pertinent case law. Roussos v. Menifee, 122 F.3d 159,

163-64 (3d Cir. 1997).

The term "crime of violence" is an important component

of a number of statutes. In addition to the cross-reference

contained in the notification statute, the "crime of violence"

concept is relevant to:

1) the United States Sentencing Guidelines, especi ally

when determining career criminal status and its

related sentence enhancement, U.S.S.G. S 4B1.1;

2) 18 U.S.C. S 924(e)(1), which assigns, inter alia, a

fifteen year mandatory minimum sentence to a felon

with three prior convictions for violent felonies; and

3) 18 U.S.C. S 3621(e)(2)(B), which by negat ive

inference excludes inmates who committed violent

offenses from eligibility for a sentence reduction

following completion of a substance abuse treatment

program.

Unfortunately, the courts and the Bureau have complicated

matters by using varying definitions of "crime of violence"

and related terms without exploring the possibility and

desirability of a more uniform approach.

The convictions at issue here are limited to firearm

possession. This Court has yet to discuss whether this

violation is a crime of violence under the notification

statute, although we have encountered the offense in other

settings. The Bureau, in its Program Statement No.

5162.02(7), takes the position that violations of the firearm

possession prohibitions are crimes of violence in all

instances. We assess the validity of that approach by first

examining related contexts where the terminology is

relevant.

(1.) Sentencing Guidelines

The term "crime of violence" is defined in the Sentencing

Guidelines. Because that formulation has been the subject

of substantial litigation in the federal courts and is used

most frequently, we first examine the term in the guidelines

context.

6

Sentencing Guideline section 4B1.1 provides for

enhanced terms of incarceration for those convicted of a

"crime of violence." Such an offense is described in section

4B1.2(a) as a felony that (1) has as an element "the use,

attempted use, or threatened use" of physical force or (2) is

a "burglary of a dwelling, arson, or extortion, involves use

of explosives, or otherwise involves conduct that presents `a

serious potential risk of physical injury to another.' "

The original commentary to section 4B1.2 created a

conflict among various Courts of Appeals over the question

of whether mere possession of a firearm by a felon was a

crime of violence. See Stinson v. United States, 508 U.S. 36,

39 n.1 (1993) (citing United States v. Williams, 892 F.2d 296

(3d Cir. 1989); United States v. Goodman, 914 F.2d 696

(5th Cir. 1990); United States v. Alvarez, 914 F.2d 915 (7th

Cir. 1990); United States v. Cornelius, 931 F.2d 490 (8th

Cir. 1991); United States v. O'Neal, 937 F.2d 1369 (9th Cir.

1990); and United States v. Walker, 930 F.2d 789 (10th Cir.

1991)). In 1992, the United States Sentencing Commission

amended the commentary to section 4B1.2 to clarify that

" `[c]rime of violence' does not include the offense of

unlawful possession of a firearm by a felon." See U.S.S.G.

S 4B1.2 Application Note 1.

In Stinson, the Supreme Court confirmed the binding

effect of this amendment and held that "[f]ederal courts

may not use the felon in possession offense as the predicate

crime of violence for purposes of imposing the career

offender provisions of U.S.S.G. S 4B1.1 . . .." 508 U.S. at

47. Thus, in the sentencing guideline setting, an

authoritative ruling holds that mere firearm possession by

a convicted felon is not a crime of violence. See also United

States v. Sahakian, 965 F.2d 740, 742 (9th Cir. 1992);

United States v. Johnson, 953 F.2d 110, 115 (4th Cir.

1991).

(2.) Armed Career Criminal

Under 18 U.S.C. S 924(e), a mandatory minimum

sentence must be imposed on a felon in possession of a

firearm who has three previous convictions "for a violent

felony." The statute defines "violent felony" as one that "has

7

as an element use, attempted use, or threatened use of

physical force" or is a burglary, arson, or extortion, involves

use of explosives, "or otherwise involves conduct that

presents serious potential risk of physical injury."

S 924(e)(2)(B). This definition uses the identical pertinent

language found in Sentencing Guideline section 4B1.2.2

In United States v. Doe, 960 F.2d 221 (1st Cir. 1992), the

Court considered whether conviction under section

922(g)(1) (possession of firearms by a felon) was a proper

predicate offense for imposing the armed career criminal

provision of section 924(e). Judge Breyer, writing for the

Court, held that the offense was not a "violent felony" under

the statute, and commented that "simple possession of a

firearm does not fit easily within the literal language of the

statute." Id. at 224.

Observing that an expansive reading of the language

would encompass crimes not meant to be included, Doe

reasoned that the term "violent felony" evoked a "tradition

of crimes that involve the possibility of more closely related,

active violence." Id. at 225. The Court also reviewed the

commentary to U.S.S.G. S 4B1.2, remarking that "because

uniform interpretation of similar language is in itself

desirable, we believe we should give some legal weight to

the Commission's determination" not to include the felon in

possession offense as a crime of violence. Id.

Two other Courts of Appeals agree that U.S.S.G. S 4B1.2

and 18 U.S.C. S 924(e) should be read consistently with one

another. In United States v. Garcia-Cruz, 978 F.2d 537,

542-43 (9th Cir. 1992), and United States v. Oliver, 20 F.3d

415, 416 (11th Cir. 1994) (per curiam), both Courts held,

after examining Guidelines case law, that the felon in

possession offense was not a violent felony under section

924(e). In Oliver, the court noted that the two expressions

in 18 U.S.C. S 924(e) and U.S.S.G. S 4B1.2 "are not

conceptually distinguishable for purposes of the narrow

question raised in this appeal." 20 F.3d at 417. Doe, Oliver,

and cases that reach a similar conclusion persuasively

_________________________________________________________________

2. Guideline section 4B1.2 speaks of "burglary of a dwelling," whereas

section 924(e)(2)(B)(ii) designates only "burglary."

8

explain why mere possession does not constitute a"crime

of violence."

We note also that the relevant language in sections

924(c)(3) and 924(e) differ only in minor detail. Section

924(c)(3)(B) speaks of a violation "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." Section 924(e)(2)(B)(ii) refers to

"conduct that presents a serious potential risk of physical

injury to another." The Court of Appeals for the Ninth

Circuit has concluded that possession of a firearm by a

felon is not a violent crime under either subsection.

Downey v. Crabtree, 100 F.3d 662, 667 (9th Cir. 1996). We

agree that the quoted variation in wording does not affect

the classification of felon in possession offenses.

(3.) Substance Abuse Treatment Program

The sentencing benefits available under the substance

abuse treatment program, created by the Violent Crime

Control and Law Enforcement Act of 1994, Pub. L.

103-322, 108 Stat. 1796 (1994), also hinge upon the crime

of violence concept. The statute, 18 U.S.C. S 3621(e)(2)(B),

grants the Bureau of Prisons discretion to reduce the period

of custody up to one year for any "prisoner convicted of a

nonviolent offense" who successfully completes a substance

abuse treatment program.

The statute does not define "nonviolent offense." The

Bureau of Prisons originally adopted a regulation that

disqualified inmates whose "current offense is determined

to be a crime of violence as defined in 18 U.S.C.

S 924(c)(3)." 28 C.F.R. S 550.58 (1996). In addition, the

Bureau adopted Program Statement No. 5162.02 (as

amended April 23, 1996), which excluded from

participation those inmates convicted of firearm violations

under specified subsections of 18 U.S.C. S 922, including

mere possession. In a number of cases, inmates currently

serving terms for nonviolent offenses (including the felon-

in-possession offense) contested their classification and

argued that under 29 C.F.R. S 550.58 and Program

Statement No. 5162.02, they were improperly being denied

earned sentence reductions.

9

The Bureau soon realized that its policy of denying

sentence reduction based on the questionable classification

of certain violations as crimes of violence was generating

conflicting decisions from the courts. In particular,

numerous cases addressed the Bureau's classification of

the felon in possession of a firearm offense.

To resolve the problem, the Bureau amended its

regulation in October 1997 to delete the disqualification

based on convictions for "a crime of violence as defined in

18 U.S.C. S 924(c)(3)." 28 C.F.R. S 550.58. See also 62 Fed.

Reg. 53690 (Oct. 15, 1997). In relevant part, the current

regulation now provides:

(a) As an exercise of the discretion vested in the

Director of the Federal Bureau of Prisons, the following

categories of inmates are not eligible for early release

. . .

(vi) [i]nmates whose current offense is a felony . . .

(B) [t]hat "involved the carrying, possession, or use of a

firearm . . ."

28 C.F.R. S 550.58 (emphasis added). Thus, the current

regulation no longer classifies the felon in possession of a

firearm offense as a "crime of violence." This new

discretionary approach has not yet been incorporated into

Program Statement 5162.02, but, by deleting the reference

to "crime of violence," the Bureau effectively made that term

irrelevant at least in the context of the drug abuse

treatment statute.3 Cases analyzing the original regulation

are now mostly of historical interest. A brief review of those

decisions, however, is in order.4

_________________________________________________________________

3. The notification statute, in contrast, contains an explicit reference

to

"crime of violence." Thus, the Program Statement still includes that

classification.

4. Several district courts within this Circuit had concluded that a felon

in possession offense was a crime of violence justifying a denial of

sentence reduction. Those opinions, however, preceded the change in the

Bureau's regulations and of course would not be binding on this court.

See Piccolo v. Lansing, 939 F. Supp. 319 (D. N.J. 1996); Paydon v.

Hawk, 960 F. Supp. 867 (D. N.J. (1997); Snisky v. Pugh, 974 F. Supp.

817 (M.D. Pa. 1997).

10

In the first of these cases, Downey v. Crabtree, 100 F.3d

662 (9th Cir. 1996), the Court held that the Bureau was

not permitted to use a sentence enhancement imposed

under the Guidelines to transform what was otherwise a

nonviolent felony (possession of 100 grams of

methamphetamine) into a crime of violence.5

Downey explicitly rejected the government's argument

"that Congress' omission of a definition for`nonviolent

offense' in S 3621(e)(2)(B) suggests an intention to entrust

defining that term entirely to the Bureau of Prisons'

discretion." Id. at 666. While the Bureau properly used its

rulemaking authority to promulgate a regulation defining

"nonviolent felony" as the converse of the section 924(c)(3)

crime of violence definition, it could not reinterpret the term

contrary to the established authority built up around the

section 924(c)(3) definition. See id. at 668.

A subsequent opinion from the same Court reinforced

this approach. Davis v. Crabtree, 109 F.3d 566 (9th Cir.

1997), held that the crime of conviction -- felon in

possession of a firearm -- was a nonviolent offense and that

the Bureau's characterization to the contrary could not be

used to deny a sentence reduction. Id. at 567.

Crabtree v. Jacks, 114 F.3d 983 (9th Cir. 1997),

sustained the Bureau's decision to deny a sentence

reduction, but presented substantially different facts than

either Downey or Davis. In Jacks, although their current

convictions (including a felon in possession offense) were

nonviolent, the inmates had previously been convicted of

concededly violent crimes. Id. at 984. In these

circumstances, the Court held that the Bureau's

interpretation which encompassed previous convictions was

sustainable because the substance abuse statute did not

specify whether "nonviolent felony" was limited only to

current convictions. Id. at 986.

_________________________________________________________________

5. Section 9 instructed Bureau officials to examine the "Specific Offense

Characteristics" noted in the presentence investigation report that aid

the district court in applying the guidelines. As noted in Downey, the

Bureau categorically denied early release credit for inmates convicted

under 18 U.S.C. S 841(a) if they also received a sentence enhancement

for firearm possession. 100 F.3d at 665.

11

In Venegas v. Henman, 126 F.3d 760 (5th Cir. 1997), the

Court of Appeals for the Fifth Circuit upheld the Bureau's

denial of a sentence reduction to an inmate whose current

conviction included the crimes of felon in possession of a

firearm and possession with intent to distribute marijuana.

The Court concluded that section 3621(e) grants the

Bureau generalized discretion to determine when and how

to reduce a sentence. Id. at 762. In particular, the court

refused to interpret "crime of violence" under section

924(c)(3) in light of the guidelines because sentence

reduction and sentencing serve different ends. Id. at

763-64. In contrast to Venegas, we have noted that an

effort to determine whether the felon in possession of a

firearm offense constitutes a crime of violence would be

"influenced by the career offender provisions of the

Sentencing Guidelines." Roussos, 122 F.3d at 163 n.5.

Venegas found support in Sesler v. Pitzer, 110 F.3d 569

(8th Cir. 1997), but that case spoke only to use of a

firearm, or in dicta, to possession of a firearm during a

predicate offense. Id. at 571-72. Sesler does not preclude a

finding that mere possession offenses are nonviolent.

Moreover, a few months later, the Eighth Circuit took issue

with Venegas stating, "[h]aving adopted S 924(c)(3) as its

definitional standard in its [original] regulation, the BOP is

bound by the definition accorded it in the interpretative

decisional case law." Martin v. Gerlinski, 133 F.3d 1076,

1080 (8th Cir. 1998).

We have twice considered the meaning of "nonviolent

felony" in the substance abuse program context. In Stiver v.

Meko, 130 F.3d 574 (3d Cir. 1997), an inmate with previous

convictions for robbery and aggravated assault challenged

his ineligibility for reduction of his current sentence for

possession of heroin with intent to distribute. Both of his

previous convictions, however, clearly qualified as crimes of

violence under section 924(c)(3), the guidelines and the

Bureau's regulation. The panel concluded in that situation,

as did Jacks, that the Bureau could look to the violent

nature of previous convictions, rather than limiting itself to

consideration of the current offense only. Id. at 577.

In the other case, Roussos, an inmate was convicted of

conspiracy to distribute narcotics. 122 F.3d at 160. The

12

sentencing court enhanced the period of incarceration

pursuant to U.S.S.G. S 2D1.1 because guns were found in

the inmate's house some distance from the arrest site. Id.

In light of the sentence enhancement, the Bureau, as it did

in Downey, denied eligibility for a sentence reduction

following the inmate's successful completion of the

substance abuse program. Id.

Roussos held that the offense of conspiracy to distribute

narcotics was not a crime of violence and that the provision

of the Program Statement declaring ineligible all inmates

with a sentencing enhancement for firearms possession was

unenforceable. Id. at 164. By focusing on enhancement

instead of the offense, the Bureau "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." Id. at 163. We were persuaded by the

reasoning in Downey that the Bureau's interpretation of

section 924(c)(3) ran counter to the Sentencing

Commission's formulation of a `nonviolent offense' and

corresponding judicial endorsement. Id. at 162-63.

Stiver was careful to distinguish Roussos. Traditionally,

the Bureau has been given substantial discretion in

administering rehabilitation programs and the substance

abuse program falls within that category. To the extent,

therefore, that Stiver permits the Bureau to use prior

convictions as a factor in determining program eligibility, it

is consistent with that practice. In contrast, the notification

statute does not serve a rehabilitative purpose. Thus, we

are not constrained by Stiver and its discussion of the

Bureau's discretion under the substance abuse program.

III.

It is against this rather complex background that we

come to the issue posed in the case before us -- whether a

current conviction for possession of firearms by a felon is a

"crime of violence" within the scope of the notification

procedures of 18 U.S.C. S 4042(b). Necessarily, we address

whether Program Statement No. 5162.02(7) contains a

correct interpretation of the statutory crime of violence

definition as it has evolved in the federal courts.

13

Section (7) of Program Statement No. 5162.02 provides:

"Criminal Offenses That Are Crimes of Violence In All

Cases. Any conviction for an offense listed below should be

categorized as a `crime of violence.' a. Title 18, United

States Code . . . S 922 . . . (g), (o). . . (firearms violations)."

The definition section of Program Statement No. 5110.11,

which covers "Notification of Release to State/Local Law

Enforcement," in turn instructs that "clarifying instructions

to define a `crime of violence' are provided in the Program

Statement [No. 5162.02]."

Unlike the substance abuse provision, which failed to

define "nonviolent offense" and thus allowed a regulation to

fill the gap, the notification statute does not leave

interpretation to the Bureau. Rather, section 4042(b)(3)(B)

refers to a specific provision defining of "crime of violence"

-- that contained in section 924(c)(3). Such an explicit

reference to a statutory definition demonstrates a

Congressional intent to forestall interpretation of the term

by an administrative agency and acts as a limitation on the

agency's authority. See generally Greenwood Trust Co. v.

Massachusetts, 971 F.2d 818, 827 (1st Cir. 1992)

(incorporation by reference to another statute brings the

statutory language and relevant case law into the

incorporating statute).

The citation to section 924(c)(3) is unlike other directions

that appear in the notification statute. For example, section

4042(b) requires the Bureau to advise local authorities.

Presumably, the method of notification is left to the

agency's discretion, e.g., mail, fax, hand-delivery, etc. Such

flexibility in the means to be employed adds significance to

the fact that Congress did not leave the crime of violence

definition similarly open-ended.

Some weight is also due to the state of the law at the

time Congress enacted S 4042(b). See Greenwood Trust Co.,

971 F.2d at 827. Stinson, Doe, Johnson, Sahkian and

Garcia-Cruz constituted a formidable body of authority

construing "crime of violence" and we may assume that the

lawmakers were aware of these precedents. Thus, the

Bureau is bound not only by the language of the statutory

definition, but also by its judicial interpretations. Id. See

14

also Dutton v. Wolpoff and Abramson, 5 F.3d 649, 655 (3d

Cir. 1993).

Unlike the situation in Stiver and Jacks, this case does

not implicate a duly promulgated regulation that purports

to establish the agency's statutory interpretation of an

otherwise undefined term. Nor do we owe the Program

Statement any deference. The notification statute and the

Program Statement specifically refer to a provision of the

Criminal Code, 18 U.S.C. S 924(c)(3), an area in which the

Bureau has no special competence. See U.S. Dep't of the

Navy v. FLRA, 840 F.2d 1131, 1134 (3d Cir. 1988) ("no

deference is owed an agency's interpretation of a general

statute."). This case is thus unlike Reno v. Koray, 515 U.S.

50, 61 (1995), where the Court allowed "some" deference to

a Program Statement interpreting a statute the Bureau was

charged with administering.

Although we have not previously addressed application of

the "crime of violence" terminology to the notification

provision, we have encountered the phrase in other

contexts. In United States v. Williams, 892 F.2d 296, 304

(3d Cir. 1989), a pre-amendment guidelines case, we

observed that "possessing a gun while firing it. . . is a

crime of violence; possession without firing the weapon is

not." Whatever doubt may have existed following the

guidelines amendment as to the authority of this passing

remark in Williams6 was removed by United States v.

Joshua, 976 F.2d 844 (3d Cir. 1992). In Joshua, where the

indictment charged defendant with possession of afirearm

and ammunition, we invoked the terminology of section

924(e) and the guideline commentary when we stated,

"[t]here is no conduct alleged that posed `a serious potential

risk of physical injury to another.' " Id. at 856. Accordingly,

there was no `crime of violence' upon which to predicate

application of the Career Offender Act.

As we intimated in Roussos, interpretation of "crime of

violence" under the Sentencing Guidelines should bear

_________________________________________________________________

6. Stinson overruled the aspect of Williams that held that the felon in

possession offense could be a crime of violence under the Guidelines in

some circumstances. See Stinson, 508 U.S. at 39; see also Williams, 892

F.2d at 304.

15

upon the meaning of the term in other settings as well. 122

F.3d at 163 n.5; see also Impounded (Juvenile R.G.), 117

F.3d 730, 738 n.13 (3d Cir. 1997). As the Doe Court

remarked, there is much to be said for attributing the same

meaning to the same or related words. See 960 F.3d at 225.

Our reading of the statutory language and the thoughtful

opinions of other Courts of Appeals dissuades us from

fracturing the meaning of section 924(c)(3)'s crime of

violence definition. We reach that determination despite the

Bureau's argument that it should be permitted to vary

interpretation of the definition because its aims embrace

different objectives than those of a sentencing judge.

Section 4042(b) requires dissemination of information

about prisoners released after serving terms for offenses

that Congress and the courts recognize as crimes of

violence -- those which traditionally "involve[ ] the

possibility of more closely related, active violence." United

States v. Doe, 960 F.2d 221, 225 (1st Cir. 1992). Nothing to

the contrary appears in the provision's legislative history. In

short, the Program Statement is not in accord with the

statutory provisions.

We hold, therefore, that possession of a firearm under 18

U.S.C. S 922(g) is not a crime of violence within the terms

of 18 U.S.C. S 4042(b), and that Program Statement No.

5162.02(7) is an impermissible interpretation of 18 U.S.C.

S 924(c)(3).

In its petition for panel rehearing, the government

accepts our reasoning with respect to section 922(g).

However, it contends that offenses under 18 U.S.C. S 922(o)

(unauthorized possession of a machine gun) are crimes of

violence. In support of its position, the government cites

United States v. Fortes, 141 F.3d 1, 7 (1st Cir. 1998)

(possession of a sawed-off shotgun is violent felony under

Armed Career Criminal Act); United States v. Hayes, 7 F.3d

144, 145 (9th Cir. 1993) (possession of unregistered sawed-

off shotgun is crime of violence under career offender

guideline); United States v. Dunn, 946 F.2d 615, 620-21

(9th Cir. 1991) (possession of unregistered sawed-off

shotgun is a crime of violence for purposes of sentence

enhancement); United States v. Huffhines, 967 F.2d 314,

16

320-21 (9th Cir. 1992) (conviction for possession of silencer

attached to a loaded gun qualifies as prior crime of violence

for sentence enhancement).

We will not reach the government's argument on the

merits because it has been waived. With commendable

candor, the petition for panel rehearing concedes that the

government "did not fully brief the issue on the merits."

Indeed, the brief in this Court did not mention the section

922(o) issue at any point, nor did it cite any one of the

cases now listed in the petition for panel rehearing.

Moreover, we have carefully searched the district court

record and find no reference to the argument the

government now advances.

As we have held on numerous occasions, we will not

consider on appeal issues which were not presented to the

district court. See e.g., Brenner v. Local 514, United

Brotherhood of Carpenters, 927 F.2d 1283, 1298 (3d Cir.

1991) (failure to brief an issue in court of appeals or raise

it in the district court constitutes a waiver of the

argument); see also United States v. Martinez, 96 F.3d 473,

475 (11th Cir. 1996) (per curiam) (issues or arguments

raised for the first time on petition for rehearing will not be

considered); Stephens v. Arrow Lumber Co., 354 F.2d 732,

734 (9th Cir. 1966) (citing Partenweederei Ms Belgrano v.

Weigel, 313 F.2d 423, 425 (9th Cir. 1962) ("It is sound

policy to require that all claims be presented to the trial

court, and not raised for the first time on appeal, nor, a

fortiori, as herein, in a petition for rehearing on appeal")). It

follows that we will not review matters that were not even

discussed in the briefs filed in this Court. Thus, for the

purposes of this appeal we determine that the violation of

18 U.S.C. S 922(o) is not a crime of violence as to petitioner

because the government has waived the issue.

Accordingly, the judgment of the district court will be

reversed. The Board may not subject petitioner to the

notification requirements because section 4042(b)(3)(B)

does not justify classification of his current offenses as

crimes of violence. We remand to the district court with

directions that it remand to the Bureau of Prisons for

reclassification of petitioner.

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A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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