Davis v. Crabtree, 923 F. Supp. 166 (D. Or. 1996)

Stephen R. Sady, Federal Public Defender, Portland, Oregon, for Petitioner.

Kristine Olson, United States Attorney, District of Oregon, Kenneth C. Bauman, Assistant United States Attorney, Portland, Oregon, for Respondent.

HAGGERTY, District Judge:

The petitioner, Albert Raymond Davis, is an inmate at the Federal Correctional Facility at Sheridan, Oregon. The respondent, Joseph H. Crabtree, is the warden of Federal Correctional Institute at Sheridan, Oregon and is therefore inmate Davis' custodian and the proper respondent in this action. The petitioner asserts that his statutory and due process rights are being violated by the Bureau of Prisons' revocation of his eligibility for reduction of his period of custody under 18 U.S.C. § 3621(e).

For the following reasons, this court concludes that petitioner is entitled to a reduction. Petitioner alleges that since he has completed the residential drug and alcohol treatment program authorized under 18 U.S.C. § 3621(b), he should have his guideline sentence reduced by one year as authorized under 18 U.S.C. § 3621(e) (2) (B). The Bureau of Prisons (BOP) has refused to give petitioner such a reduction pursuant to its Program Statement 5330.10, (drug abuse program's inmate manual, May 25, 1995), and Program Statement 5162.02, (definition of "crimes of violence", July 24, 1995).

It is uncontroverted that petitioner has exhausted his administrative remedies.

There is no dispute that petitioner has successfully completed a residential drug abuse treatment program and received the requisite certificate. Petitioner was convicted of possession of a firearm by a felon. The BOP has denied petitioner's request for the one year guideline reduction after determining that petitioner had been convicted of a "crime of violence." However, the Ninth Circuit has specifically held that possession of a firearm by a felon is not a "crime of *167 violence" under § 924(c). United States v. Canon, 993 F.2d 1439, 1441 (9th Cir. 1993). Respondent argues that decisional case law is inapplicable here because the BOP is carrying out a rehabilitative program authorized by Congress and that therefore, the court should give deference to their definition. Congress, however, used the term "convicted of a nonviolent offense" without defining the term. This court believes that the categorical approach approved by the Ninth Circuit is the proper way to interpret the language. See United States v. Amparo, 68 F.3d 1222, 1224 (9th Cir.1995).

Based on the foregoing, I find that petitioner is eligible for the one year reduction in his guideline sentence. I hereby direct the Bureau of Prisons to give him such credit. Accordingly, petitioner's Petition for Writ of Habeas Corpus is granted.