Richard Paul Henrikson, Plaintiff-appellant, v. Bob Guzik, Defendant-appellee, 249 F.3d 395 (5th Cir. 2001)

Petitioner-appellant Richard Paul Henrikson appeals the district court's upholding respondent-appellee Bureau of Prisons's interpretation of 18 U.S.C. § 4042(b), set forth in Program Statement 5110.12. We reverse.

Facts and Proceedings Below

On October 13, 1977, Henrikson was convicted in Michigan state court of arson. On October 13, 1995, Henrikson pleaded guilty to possession of unregistered firearms in violation of 26 U.S.C. § 5861(d). On January 22, 1996, he was sentenced to seventy months in prison. Henrikson is currently serving this seventy month term and is eligible for release on May 8, 2001.

18 U.S.C. § 4042(b) provides that if the prisoner was convicted of a drug trafficking crime or crime of violence and is to be released on supervised release, the Bureau "shall" provide written notice of the release of the prisoner to the chief law enforcement officer of the jurisdiction in which the prisoner will reside.¹  The Bureau has notified Henrikson that it intends to provide notification of his release pursuant to section 4042(b). The Bureau does not contend that Henrikson's current conviction, for possessing unregistered firearms, requires release notification. In Program Statement 5110.12, the Bureau interprets section 4042(b) as requiring release notification if any crime in the prisoner's criminal history satisfies the criteria set forth in section 4042(b) (3).²  The Bureau asserts, and Henrikson does not dispute, that his 1977 arson conviction constitutes a crime of violence. Henrikson contends that section 4042(b) only requires release notification if the offense for which the prisoner is currently incarcerated meets one of the section 4042(b) (3) criteria, and that, therefore, the Bureau's release notification policy as set forth in Program Statement 5110.12 exceeds the Bureau's statutory authority under section 4042(b).³ 

On July 19, 1999, Henrikson filed a petition to test the legality of the Bureau's release notification policy.⁴  On October 5, 1999, the Bureau filed a motion to dismiss the petition pursuant to Fed. R. Civ. P. 12(b) (2), (5) and (6). On June 19, 2000, the magistrate judge issued his report, which found that under Chevron U.S.A. Inc. v. Natural Resources Defense Counsel, Inc., 104 S. Ct. 2778 (1984), and Stinson v. United States, 113 S. Ct. 1913 (1993), Program Statement 5110.12 must be given "controlling weight" because it is a permissible construction of the statute and recommended that the motion to dismiss be granted. On June 28, 2000, Henrikson timely filed objections thereto. On July 12, 2000, the district court adopted the magistrate's report.

Discussion

Chevron requires that if a statute is silent or ambiguous as to the particular issue in question, federal courts must defer to an administrative agency's resolution of that question if such resolution is predicated upon a permissible interpretation of the statute the agency is charged with administering. Chevron, 104 S. Ct. at 2781-82. As mentioned, the district court, in adopting the magistrate's report, found that Program Statement 5110.12 was entitled to Chevron deference and that the Program Statement's interpretation of section 4042(b) was permissible and, therefore, controlling.

In affording Chevron deference to Program Statement 5110.12, the district court erred. The Supreme Court and this Court have made clear that interpretations of statutes not arrived at by "formal adjudication or notice-and-comment rulemaking", e.g. opinion letters, "policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law-do not warrant Chevron-style deference." Christensen v. Harris County, 120 S. Ct. 1655, 1662 (2000). These interpretations are entitled to respect, but only to the extent that they have the "power to persuade". Id. (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). See also Reno v. Koray, 115 S. Ct. 2021, 2027 (1995) (observing that a Bureau of Prisons Program Statement is entitled to "some deference" if it represents a permissible construction of the statute); Bussian v. RJR Nabisco, Inc., 223 F.3d 286, 296 (5th Cir. 2000) (quoting Christensen for the proposition that interpretations that lack the force of law are only entitled to respect according to their "power to persuade").⁵ 

When interpreting a statute, the starting point is the statute's text. Reich v. Arcadian Corp., 110 F.3d 1192, 1195 (5th Cir. 1997) (quoting Estate of Cowart v. Nicklos Drilling Co., 112 S. Ct. 2589, 2594 (1992)). The meaning of a particular word or phrase "cannot be determined in isolation, but must be drawn from the context in which it is used." Arcadian, 110 F.3d at 1195-96 (quoting Deal v. United States, 113 S. Ct. 1993, 1996 (1993). Therefore, a term is not ambiguous if, although subject to different interpretations in isolation, "all but one of the meanings is ordinarily eliminated by context." Id. If possible, the statute should be construed such that "every word has some operative effect." Arcadian, 110 F.3d at 1196 (quoting United States v. Nordic Village, Inc., 112 S. Ct. 1011, 1015 (1992)). It is important to "look to the structure and language of the statute as a whole." Arcadian, 110 F.3d at 1196 (quoting National R.R. Passenger Corp. v. Boston and Maine Corp., 112 S. Ct. 1394, 1401 (1992). With these principles in mind, we turn to the interpretation of section 4042(b).

First, section 4042(b) (1) explains the release notification scheme. Initial notification is only required if a person described in section 4042(b) (3) is to be released on supervised release. Notification of a subsequent change of residence is only required while the prisoner remains on supervised release. The notification requirement ends when the prisoner's entire sentence for the current conviction, including the term of supervision, is served. The notification requirement, running as it does with the supervised release portion of the sentence for the current conviction, seems virtually part of that sentence. It seems illogical to impose the notification requirement to run with the sentence for a crime that does not itself trigger notification.

Second, and more significantly, Henrikson correctly observes that language in section 4042(b) (2), which describes the information the notification must contain, supports his interpretation of section 4042(b) (3). Section 4042(b) (2) (B) requires disclosure of "the prisoner's criminal history, including a description of the offense of which the prisoner was convicted." Clearly, Congress intended "offense of which the prisoner was convicted" to refer to the current conviction, as it was obviously clarifying that it intended "criminal history" to include the current conviction. No other reading of section 4042(b) (2) (B) is reasonable. We agree with Henrikson that the similar language in the next paragraph, section 4042(b) (3), "if the prisoner was convicted of", also refers only to the current conviction.

Finally, the language "was convicted of" in section 4042(b) (3) seems implicitly to refer to a single event-the current conviction. If Congress intended for more than the current conviction to be scrutinized, words such as "if the prisoner has been convicted of", liekly would have been employed.

We do not believe that section 4042(b) (3) is ambiguous or that in this section Congress has explicitly or implicitly left a gap in which the Bureau is free to regulate. Even applying the "some deference" standard, we do not find the Bureau's construction of section 4042(b) in this respect as set forth in Program Statement 5110.12 to be a permissible, much less a persuasive, one. An examination of the statute's text and overall scheme manifest that Congress was only requiring the Bureau to notify if the prisoner's current conviction was for a crime of violence or a drug trafficking crime. We hold that, because the Bureau does not contend that Henrikson's current conviction is for a crime of violence or a drug trafficking crime, section 4042(b) does not require the Bureau to notify state and local law enforcement of Henrikson's release.⁶ 

Conclusion

For the reasons stated, we hold that the Bureau's construction of section 4042(b) is incorrect in the respect noted and the district court's judgment upholding the Bureau's interpretation of section 4042(b) in this regard is accordingly REVERSED.

REVERSED