Connie F. Cunningham v.  Joseph Scibana

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 CONNIE F. CUNNINGHAM,
Petitioner-Appellant,
v. No. 00-7486 
JOSEPH SCIBANA,
Respondent-Appellee. 
Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, District Judge.
(CA-00-223)
Argued: April 5, 2001
Decided: August 1, 2001
Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by published opinion. Judge Michael wrote the opinion, in
which Judge Williams and Judge Traxler joined.
COUNSEL
ARGUED: Joseph Anthony Brossart, Legal Research and Writing
Specialist, Charleston, West Virginia, for Appellant. Michael Lee
Keller, Assistant United States Attorney, Charleston, West Virginia,
for Appellee. ON BRIEF: Mary Lou Newberger, Acting Federal
Public Defender, George H. Lancaster, Jr., Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Rebecca A.
Betts, United States Attorney, Charleston, West Virginia, for Appel-
lee.

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OPINION
MICHAEL, Circuit Judge:
Constance Cunningham was convicted of tampering with a con-
sumer product with reckless disregard for and extreme indifference to
the risk of human death or injury, in violation of 18 U.S.C. § 1365(a).
Cunningham, who is still in prison, participated in a drug treatment
program in an effort to qualify for the early release that Congress
allows for an inmate convicted of a "nonviolent offense." The Federal
Bureau of Prisons (BOP), however, found Cunningham ineligible for
early release because a BOP policy statement classified her crime as
a crime of violence in all cases. Cunningham filed an application for
a writ of habeas corpus, which was denied by the district court. We
are persuaded by the soundness of the BOP’s judgment, reflected in
its policy statement, to classify Cunningham’s crime as one of vio-
lence. We therefore affirm.
I.
Cunningham worked as a registered nurse in an Indiana hospital.
Hospital staff discovered that someone was tampering with Demerol
syringes by replacing the Demerol with a saline solution. Demerol is
a powerful painkiller, similar to morphine; it is used for the relief of
moderate to severe pain, as a preoperative medication, and as an
obstetrical analgesic. See Physicians’ Desk Reference 2571 (52d ed.
1998). The police interviewed Cunningham and the four other nurses
who had access to the Demerol syringes. Cunningham admitted that
she had once been addicted to Demerol, but she denied current use.
She agreed to a urine test, and the result was positive for Demerol.
The government indicted Cunningham for tampering with a con-
sumer product "with reckless disregard for the risk that another per-
son will be placed in danger of death or bodily injury and under
circumstances manifesting extreme indifference to such risk." 18
U.S.C. § 1365(a). The government’s theory at trial was that Cunning-
ham, in order to satisfy her addiction, removed the Demerol from the
syringes and filled them with a saline solution to conceal her wrong-
doing. The jury convicted Cunningham, and on January 26, 1996, she
was sentenced to eighty-four months in prison. The Court of Appeals
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for the Seventh Circuit affirmed her conviction, rejecting her argu-
ment that her actions had not placed anyone in danger of "bodily
injury." See United States v. Cunningham, 103 F.3d 553 (7th Cir.
1996). The court began its analysis by noting that the tampering stat-
ute defines bodily injury to include "physical pain." See id. at 555
(citing 18 U.S.C. § 1365(g)(4)(B)). The court held that the withhold-
ing of pain medication causes "physical pain" because the act of with-
holding "perpetuates an injury [pain] by preventing it from being
alleviated by the product designed for that end." Id.
Cunningham is serving her sentence at the Federal Prison Camp at
Alderson, West Virginia. In March 1999, after Cunningham had been
in prison for over three years, the BOP informed her that she was eli-
gible for the Comprehensive Residential Drug Abuse Program. The
BOP initially told Cunningham that she would qualify for a one year
reduction in her sentence upon completion of the program. In June
1999, however, the BOP reversed its position, informing Cunningham
that she did not qualify for early release because she had been con-
victed of a "Crime of Violence as contained in the Categorization of
Offenses Program Statement." Cunningham nevertheless entered the
drug treatment program and successfully completed it in July 2000.
Cunningham challenged, through the appropriate administrative
channels, the BOP’s determination that she was ineligible for early
release. She argued that the BOP had improperly classified her crime,
tampering with a consumer product in violation of 18 U.S.C.
§ 1365(a), as a crime of violence. Cunningham exhausted all of her
administrative remedies without any success. She then filed an appli-
cation for a writ of habeas corpus under 28 U.S.C. § 2241. The magis-
trate judge recommended that the writ be granted, but the district
judge disagreed and denied Cunningham’s application. We now have
her appeal.
II.
We start with a description of the statutory and regulatory frame-
work for the drug treatment program in federal prisons. Congress has
ordered the BOP to provide "every prisoner with a substance abuse
problem . . . the opportunity to participate in appropriate substance
abuse treatment." 18 U.S.C. § 3621(e)(1). As an "[i]ncentive for pris-
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oners’ successful completion of [the] treatment program," the statute
provides that "[t]he period a prisoner convicted of a nonviolent
offense remains in custody after successfully completing a treatment
program may be reduced by the [BOP], but such reduction may not
be more than one year from the term the prisoner must otherwise
serve." § 3621(e)(2)(B). Section 3621(e) does not define a "nonvio-
lent offense."
To implement the statutory scheme, the BOP has promulgated a
regulation and issued a program statement. See 28 C.F.R. § 550.58;
Fed. Bureau of Prisons, U.S. Dep’t of Justice, Categorization of
Offenses, Program Statement 5162.04 (Oct. 9, 1997). The regulation
repeats the statutory language, stating that only an inmate convicted
of a nonviolent offense who successfully completes the drug treat-
ment program is eligible for early release. Like the statute, the regula-
tion does not define a "nonviolent offense." See 28 C.F.R. § 550.58.
Section 6 of the program statement fills in the definitional gap by des-
ignating certain offenses as "Crimes of Violence in All Cases." Pro-
gram Statement 5162.04 § 6(a). An inmate convicted of one of these
designated "crimes of violence" has not committed a "nonviolent
offense" and is therefore ineligible for early release under the drug
treatment program. Cunningham’s offense, tampering with a con-
sumer product in violation of 18 U.S.C. § 1365(a), is listed in the pro-
gram statement as a crime of violence in all cases. See Program
Statement 5162.04 § 6(a). The BOP relied on this listing in the pro-
gram statement to deny Cunningham early release under 18 U.S.C.
§ 3621(e)(2)(B). The question for us is whether the BOP’s listing (in
the program statement) of Cunningham’s offense as a crime of vio-
lence in all cases is consistent with Congress’s statutory mandate that
only an inmate convicted of a nonviolent offense is eligible for early
release under the drug treatment program.
The BOP’s program statement is an internal agency guideline that
has not been subjected to the rigors of notice and comment rulemak-
ing. See Reno v. Koray, 515 U.S. 50, 61 (1995). The recent Supreme
Court case of Christensen v. Harris County, 529 U.S. 576 (2000),
guides us in deciding how much deference to give to the BOP’s desig-
nation of certain crimes as "crimes of violence in all cases" in sec-
tion 6(a) of the program statement. In Christensen the Court declined
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to defer to the Department of Labor’s statutory interpretation con-
tained in an opinion letter. The Court said:
Interpretations such as those in opinion letters — like inter-
pretations contained in policy statements, agency manuals,
and enforcement guidelines, all of which lack the force of
law — do not warrant Chevron-style deference. Instead,
interpretations contained in formats such as opinion letters
are "entitled to respect" under our decision in Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944), but only to the
extent that those interpretations have the "power to per-
suade."
Christensen, 529 U.S. at 587 (citations omitted). See also Koray, 515
U.S. at 61 (noting that BOP program statements are "entitled to some
deference"); Pelissero v. Thompson, 170 F.3d 442, 447 (4th Cir.
1999) (recognizing that a policy statement does not carry as much
weight as a rule); Fristoe v. Thompson, 144 F.3d 627, 631 (10th Cir.
1998) (using the "power to persuade" standard to strike down a for-
mer version of the program statement). In Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944), the Supreme Court explained what gives
an agency interpretation, such as a program statement, the "power to
persuade":
We consider that the rulings, interpretations and opinions of
the Administrator under this Act, while not controlling upon
the courts by reason of their authority, do constitute a body
of experience and informed judgment to which courts and
litigants may properly resort for guidance. The weight of
such a judgment in a particular case will depend upon the
thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later pronounce-
ments, and all those factors which give it power to persuade,
if lacking power to control.
Because the offense classification that disqualifies Cunningham for
early release is contained in a BOP program statement instead of a
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regulation, we will respect the classification if the program statement
packs sufficient power to persuade us.1
Cunningham argues that the BOP cannot classify 18 U.S.C.
§ 1365(a), tampering with consumer products, as a "crime of vio-
lence" in all cases because that crime does not fit the definition of
"crime of violence" in 18 U.S.C. § 16. Section 16, found in the "Gen-
eral Provisions" chapter of the "Crimes" part of Title 18, provides:
The term "crime of violence" means—
(a) an offense that has as an element the use,
attempted use, or threatened use of physical force
against the person or property of another, or
(b) any other offense that is a felony and that,
by its nature, involves a substantial risk that physi-
cal force against the person or property of another
may be used in the course of committing the
offense.
18 U.S.C. § 16. Cunningham’s argument hinges on distinguishing the
term "physical force" in § 16 from the term "bodily injury" in
§ 1365(a), which describes her offense. She maintains that while her
crime involved reckless disregard and extreme indifference to the risk
of "bodily injury," see § 1365(a), it was not a crime of violence
because it did not include "physical force" as an element, nor did it
involve a substantial risk of "physical force," see § 16.
1In Christensen the Supreme Court noted that Chevron-style deference
is warranted for an agency’s interpretation of an ambiguous regulation.
See Christensen, 529 U.S. at 588 (citing Auer v. Robbins, 519 U.S. 452,
461 (1997) (interpretation is controlling unless "plainly erroneous or
inconsistent with the regulation") (internal quotation marks and citations
omitted)). This principle does not apply here: the BOP’s regulation does
not provide any definition of "nonviolent offense," so there is no ambigu-
ous definition for the BOP to interpret. The BOP simply repeated the
statutory language in the regulation and left its interpretation of "nonvio-
lent offense" to a program statement.
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It is not enough for Cunningham to argue that her crime is not a
"crime of violence" under 18 U.S.C. § 16. The BOP, in interpreting
the drug treatment statute, is not required to define a "nonviolent
offense" as one that is not a "crime of violence" under § 16. The drug
treatment statute provides that "a prisoner convicted of a nonviolent
offense" who successfully completes the treatment program is eligible
for early release. § 3621(e)(2)(B) (emphasis added). Section 16 pro-
vides a definition for the term "crime of violence." Congress could
have written in § 3621(e) that a prisoner convicted of "an offense that
is not a ‘crime of violence’" is eligible for early release. In fact, in
other provisions Congress uses the exact term "crime of violence" and
even specifies that the § 16 definition is applicable. See, e.g., 8 U.S.C.
§ 1101(a)(43)(F) (defining "aggravated felony" for immigration law
purposes as "a crime of violence . . . as defined in section 16 of Title
18"); 18 U.S.C. § 3181(b)(1) (allowing for extradition of foreigners
who have committed crimes of violence against U.S. nationals in for-
eign countries if the offenses "would constitute crimes of violence as
defined under section 16 of this title"); 20 U.S.C. § 1232g(b)(6)(A)
(allowing a postsecondary educational institution to disclose to a vic-
tim the final results of a disciplinary proceeding against a perpetrator
of a "crime of violence (as that term is defined in section 16 of Title
18)"). In the provision at issue in this case, Congress chose to use the
term "nonviolent offense" rather than "offense that is not a ‘crime of
violence.’" Although the two terms are quite similar, we must assume
that Congress made a deliberate choice to use different language. The
implication is that Congress did not mean to equate "nonviolent
offense" with an offense that is not a "crime of violence." See 2A
Norman J. Singer, Statutes and Statutory Construction § 46:06, at 194
(6th ed. 2000) ("The use of different terms within related statutes gen-
erally implies that different meanings were intended."). As a result,
we decline to hold the BOP to § 16’s definition of "crime of violence"
for purposes of interpreting what a "nonviolent offense" means in
§ 3621(e).2
2Cunningham also points to the definition of "crime of violence" in the
"Penalties" provision of the "Firearms" chapter. 18 U.S.C. § 924(c)(3).
That definition is identical to the one found in § 16, except that the
offense described in § 16(a) has to be a felony. The BOP does not have
to follow the § 924(c)(3) definition because it applies only "[f]or pur-
poses of this subsection [§ 924(c)]," which discusses the minimum penal-
ties for a person who uses, carries, or possesses a firearm in connection
with a crime of violence or a drug trafficking crime.
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The BOP works backward in the program statement to determine
whether a prisoner is convicted of a nonviolent offense for purposes
of the drug treatment statute. The program statement classifies certain
crimes as "crimes of violence in all cases" and then excludes those
crimes from the "nonviolent offense" category. The question is
whether we are sufficiently persuaded that the BOP made a proper
judgment in categorizing Cunningham’s offense, tampering with a
consumer product, as a crime of violence in all cases. We recognize,
of course, that the BOP’s judgment was made in light of the purpose
of the early release option for successful participants in the drug treat-
ment program. The early release option has the "twin goals of provid-
ing an incentive for certain prisoners to undergo drug treatment while
at the same time protecting the public from potentially violent crimi-
nals." Pelissero, 170 F.3d at 447. In characterizing Cunningham’s
crime as violent in all circumstances, the BOP has determined that
society should be afforded all allowable protection from an inmate
who has tampered with a consumer product with reckless disregard
and extreme indifference to the risk that someone could be injured or
killed. The BOP, in running the nation’s prisons, has accumulated
experience and judgment that allows it to make informed decisions
about various penological objectives, including punishment and reha-
bilitation. See In re Long Term Admin. Segregation of Inmates Desig-
nated as Five Percenters, 174 F.3d 464, 469 (4th Cir. 1999) ("[T]he
evaluation of penological objectives is committed to the considered
judgment of prisons administrators . . . ." (internal quotation marks
and citations omitted)). We are guided by the BOP’s classification of
§ 1365(a) as a crime of violence because the decision appears to be
based on the BOP’s "body of experience and informed judgment."
Skidmore, 323 U.S. at 140.
The BOP’s judgment — to classify tampering with a consumer
product in violation of § 1365(a) as a crime of violence — is sup-
ported by sound reasoning. See id. (according weight to agency judg-
ment based on "the validity of its reasoning"). The BOP explains that
because the § 1365(a) crime of consumer product tampering involves
the risk of physical injury or death to the victim, the agency considers
it to be a crime of violence. Violent crimes are described or defined
in a similar way in certain other circumstances. For example, in deter-
mining the minimum sentence for illegal firearms possession, a "vio-
lent felony" includes "conduct that presents a serious potential risk of
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physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). See also
U.S. Sentencing Guidelines Manual § 4B1.2(a) (2000) (using the
same definition of "crime of violence" for purposes of determining
whether a defendant is a career offender). The BOP’s ultimate judg-
ment that tampering with a consumer product is not a "nonviolent
offense" is consistent with the accepted meaning of the term "nonvio-
lent offense." Because Congress did not define "nonviolent offense,"
the term may be interpreted with reference to the accepted definition
of its opposite, a "violent offense." See 2A Singer, supra, § 47:28, at
336-38, 352. At least one highly respected dictionary indicates that a
"violent" offense includes one that is "[c]haracterized by the doing of
harm or injury." 19 Oxford English Dictionary 656 (2d ed. 1989).
Cunningham’s crime, tampering with a consumer product, easily fits
within this definition because the crime involves "the risk that another
person will be placed in danger of death or bodily injury." 18 U.S.C.
§ 1365(a).
Moreover, the BOP has been consistent in its determination that
§ 1365(a)’s crime of consumer product tampering is violent in all
cases. A former version of the program statement also classified
§ 1365(a) as a crime of violence in all cases. See Fed. Bureau of Pris-
ons, U.S. Dep’t of Justice, Definition of Term — Crimes of Violence,
Program Statement 5162.02 § 7(a) (July 24, 1995). The BOP’s con-
sistency lends some additional weight to its classification decision.
See Skidmore, 323 U.S. at 140 (according weight to agency judgment
based on "its consistency with earlier and later pronouncements").
In sum, we are sufficiently persuaded by the BOP’s decision to
classify Cunningham’s crime as violent in all cases because that deci-
sion is supported by experience and sound and consistent reasoning.
Cunningham is thus ineligible for early release under the BOP’s drug
treatment program. Accordingly, we affirm the district court’s order
denying her application for a writ of habeas corpus.
AFFIRMED
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