BOP Program Statement 5162.07 § 4

FROM RECEIVING CERTAIN BUREAU PROGRAM BENEFITS

For certain Bureau programs, an inmate may be denied program benefits if they were convicted

of an offense listed in either this section or Section 3 of this program statement. If an inmate is

denied the benefit of such a program, staff must carefully describe the basis for the denial. For

example, if an inmate is convicted of an offense listed in this section, the inmate shall be denied a

program benefit because they committed an offense identified at the Director's discretion,

rather than a crime of violence.

Based on the Director’s discretion, an inmate currently serving a sentence for a felony offense

that contains at least one of the following factors is precluded from receiving certain Bureau

program benefits:

 The current offense has an element of the actual, attempted, or threatened use of physical

force against the person or property of another;

 The current offense involved the carrying, possession, or use of a firearm or other dangerous

weapon or explosives (including any explosive material or explosive device);

 The current offense presents a serious potential risk of physical force against the person or

property of another by its nature or conduct; or

 The current offense involves sexual abuse offenses committed against children by its nature

or conduct.

a. Criminal offenses with an enhanced base offense level. Convictions for an offense listed

below may or may not satisfy the standard listed in the introductory portion of Section 4 of this

program statement. At the time of sentencing, the court makes a finding in its Statement of

Reasons to document whether an offense listed below involved the use of force, as reflected in

the PSR section entitled “Offense Computation.” For example, 18 U.S.C. § 241 prohibits “ two

or more persons conspiring to injure, oppress, threaten, or intimidate any person... in the free

exercise or enjoyment of any right or privilege... ” This crime may or may not be committed

through the use of force or threatened use of force, since one can be oppressed through means

other than force. Pursuant to U.S. Sentencing Guideline Section § 2H2.1, the base offense level

will either be 18 if the offense behavior included use of force or threat of force against persons or

property, but the base offense level will be 12 if the conduct did not involve the use or threatened

use of force.

If an offender was convicted of an offense listed below, staff must examine the base offense level

to determine whether the offense would preclude the inmate from receiving certain Bureau

program benefits. If the PSR does not include an explanation as to the reason for assigning a

specific base offense level, staff may need to examine the particular Sentencing Guideline

referenced.

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Some of the offenses listed below may correspond to more than one Sentencing Guideline, only

one of which includes a base level adjustment for the use or threatened use of force. Accordingly,

it is possible that an examination of the Offense Computation section of the PSR may reveal no

mention of the use or threatened use of force. When the PSR fails to explain the reason for

assigning a particular base offense level, staff must examine the particular Sentencing Guideline

referenced to determine whether the court found that the use of force was implicated in the

offense.

Staff may contact the Office of General Counsel, Legislative and Correctional Issues Branch if

they have questions regarding this section of this program statement. At the Director’s discretion,

inmates with current offenses listed below require review of base offense levels and may be

precluded from receiving certain Bureau program benefits.

18 U.S.C. § 241 Conspiracy against rights (for other than conspiracy)

18 U.S.C. § 242 Deprivation of rights under color of law

18 U.S.C. § 592 Putting troops at polls

18 U.S.C. § 593 Interference by armed forces

18 U.S.C. § 1791 Possessing contraband in prison

18 U.S.C. § 2231(a) Assault on persons executing search warrant

18 U.S.C. § 2381 Treason

b. Criminal offenses with a Specific Offense Characteristic (SOC) enhancement.

Convictions for an offense listed below, like those listed in Section 4.a., may or may not satisfy

the standard listed in the introductory portion of Section 4 of this program statement.

At the time of sentencing, the court makes a finding of whether the offense involved the use or

threatened use of force, and this finding is reflected in the PSR section entitled “Offense

Computation.” This section references a particular Sentencing Guideline that provides for an

increase in the Total Offense Level if the criminal violation was committed with force.

For example, 21 U.S.C. § 841 makes it a crime to manufacture, distribute, or possess with the

intent to distribute drugs. If a dangerous weapon was possessed during commission of the

offense, the court would increase the defendant’s base offense level by two levels. This particular

SOC, possession of a dangerous weapon during the commission of a drug offense, poses a

serious potential risk that force may be used against persons or property. As a result, an inmate

who was convicted of violating 21 U.S.C. § 841 and received a two-level SOC enhancement for

possession of a firearm has been convicted of an offense that will preclude the inmate from

receiving certain Bureau program benefits.

When the PSR is unclear whether force was used, staff must examine the particular Sentencing

Guideline referenced to determine if the court found force was implicated in the offense. For

example, a PSR states, “SOC 3C1.2, increase 2 levels.” If the PSR does not further affirm the

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offense involved the reckless risk of another’s death or serious bodily injury, staff may have to

examine U.S.S.G. § 3C1.2, which reflects the only basis for this particular increase is a finding

the offense included the risk of death or serious bodily injury while fleeing from law enforcement.

The inmate would then be precluded from receiving certain Bureau program benefits referenced

in this program statement.

Staff may contact Office of General Counsel, Legislative and Correctional Issues Branch if they

have questions regarding this section of this program statement.

Below is a list of offenses for which there could be an SOC enhancement for the use of force:

16 U.S.C. § 773e(1)(B), Violation of Northern Pacific Halibut Act

(C),(D),(F)

16 U.S.C. § 773g Violation of Northern Pacific Halibut Act

16 U.S.C. § 1857(1)(D), Violation of National Fishery Management Program

(E),(F),(H)

16 U.S.C. § 1859 Violation of National Fishery Management Program

16 U.S.C. § 2435(4),(5), Violation of Antarctic Marine Living Resources Convention

(6),(7)

16 U.S.C. § 2438 Violation of Antarctic Marine Living Resources Convention 16

U.S.C. § 3606 Violation of North Atlantic Salmon Fishing

16 U.S.C. § 3637(a)(2), Violation of Pacific Salmon Fishing

(3),(4),(6)

16 U.S.C. § 5009(5),(6), Violation of North Pacific Anadromous Stock Convention

(7),(8)

18 U.S.C. § 755 Officer permitting escape

18 U.S.C. § 757 Procuring escape for prisoner of war

18 U.S.C. § 874 Kickbacks from public works employees

18 U.S.C. § 894 Extending credit through extortionate means

18 U.S.C. § 1163 Embezzlement/theft from Indian organizations

18 U.S.C. § 1503 Influencing or injuring officer or juror

18 U.S.C. § 1505 Obstruction of proceedings before departments or agencies

18 U.S.C. § 1511 Obstruction of state or local law enforcement

18 U.S.C. § 1516 Obstruction of a federal audit

18 U.S.C. § 1517 Obstructing financial examination

18 U.S.C. § 1951 Interference with commerce by threats/violence

18 U.S.C. § 2112 Robbery of personal property of United States

21 U.S.C. § 841 Controlled substance violation

(other than (e))

21 U.S.C. § 846 Attempt and conspiracy

26 U.S.C. § 7212 Attempt to interfere with revenue laws

26 U.S.C. § 7214 Unlawful acts by employees of the IRS

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30 U.S.C. § 1461(4),(5) Resisting officers for violations under Deep Seabed Mineral

Resources Act

30 U.S.C. § 1463 Violations of Deep Seabed Mineral Resources Act

40 U.S.C. § 5104(e)(1) Security of Capitol grounds and buildings

42 U.S.C. § 2283(b) Protection of nuclear inspectors

42 U.S.C. § 9151(2),(3), Violation of Ocean Thermal Energy Conversion Act

(4),(5)

42 U.S.C. § 9152(d) Violation of Ocean Thermal Energy Conversion Act

46 U.S.C. § 70503 Manufacture, distribution, or possession with intent to manufacture

controlled substances

49 U.S.C. § 46505(b) Carrying a weapon on an aircraft

52 U.S.C. § 10501 Application of prohibition to other States

52 U.S.C. § 10502 Residence requirements for voting

52 U.S.C. § 10503 Bilingual election requirements

52 U.S.C. § 10505 Penalty

52 U.S.C. § 10701 Enforcement of twenty-sixth amendment

52 U.S.C. § 20511 Criminal penalties

c. Criminal offenses that may preclude an inmate from receiving certain Bureau program

benefits. In addition to Sections 4.a. and 4.b. above, an inmate may be precluded from receiving

certain Bureau program benefits based on an offense listed in this section. For the offenses listed

below, the Sentencing Guidelines may provide little insight into the court’s findings. Rather than

reviewing only the base offense level or SOCs, staff must examine the entire Offense

Computation section of the PSR and, if necessary, the Offense Conduct section. If the offense

satisfies the standard listed in the introductory portion of Section 4 of this program statement, the

inmate is precluded from receiving certain Bureau program benefits.

The following offenses may preclude an inmate’s receiving certain Bureau program benefits

based on a variety of factors:

7 U.S.C. § 473c-1 Offenses in relation to sampling of cotton

16 U.S.C. § 5106(e)(5), Violation of Atlantic Coast Fisheries Cooperative Management

(6),(7),(9),(f)(2)

18 U.S.C. § 13 Laws of states adopted for areas within federal jurisdiction

18 U.S.C. § 700 Desecration of the flag of the United States

18 U.S.C. § 751 Escape from federal prison

18 U.S.C. § 752 Instigating/assisting escape from federal prison

18 U.S.C. § 831 Prohibited acts involving nuclear materials

18 U.S.C. § 876 Mailing threatening communications

18 U.S.C. § 877 Mailing threatening communications from foreign country

18 U.S.C. § 922(a)(1) Engage in business of importing, manufacturing, or dealing in

firearms or ammunition

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18 U.S.C. § 1112 Manslaughter (voluntary only)

18 U.S.C. § 1153 Offenses within Indian Country

18 U.S.C. § 1512(b) Tampering with a witness/victim/informant

18 U.S.C. § 1708 Theft or receipt of stolen mail

18 U.S.C. § 1792 Mutiny and riot in prison

18 U.S.C. § 1952 Transporting items in aid of racketeering

18 U.S.C. § 1956 Money laundering

18 U.S.C. § 1962 Racketeering

18 U.S.C. § 2117 Breaking into carrier facilities

18 U.S.C. § 2152 Destruction of submarine and torpedo works

18 U.S.C. § 2153 Destruction of war materials

18 U.S.C. § 2154 Production of defective war material

18 U.S.C. § 2155 Destruction of national defense materials

18 U.S.C. § 2156 Production of defective national defense material

18 U.S.C. § 2192 Incitation of seamen to revolt

18 U.S.C. § 2193 Mutiny

18 U.S.C. § 2247 Repeat offenders

18 U.S.C. § 2261A Stalking

18 U.S.C. § 2387 Activities involving armed forces

40 U.S.C. § 5104(e)(1), (2) Security of Capitol grounds and buildings

d. Conspiracy, Attempt, and other offenses that involve an underlying offense. Some of the

statutes listed in this section cover conspiracy offenses (e.g., 21 U.S.C. § 846) when an individual

has planned with others to commit a particular crime. Other listed statutes cover attempted

offenses (e.g., 21 U.S.C. §§ 846 and 963) when an individual tried but did not succeed in

committing the crime. In reviewing these types of offenses, it is necessary to examine the

“underlying offense,” i.e., what the defendant was conspiring to do or attempting to do. If the

underlying offense would preclude the inmate from receiving certain Bureau program benefits

based on any of the other portions of Section 4 of this program statement, the conspiracy or the

attempt offense precludes the inmate from receiving the same benefits. The underlying offense

will be included in the PSR and may be noted on the J&C.

For example, a J&C may indicate a conviction for Attempt and Conspiracy under 21 U.S.C. §

846. The accompanying PSR will reference the underlying crime, which in many cases will be

“Possession with Intent to Distribute a Controlled Substance,” 21 U.S.C. § 841. Staff must

review the underlying offense - in this example, possession of controlled substance - to

determine whether it satisfies the standard listed in the introductory portion of Section 4 of this

program statement. As noted in the example in Section 4.b, if the PSR indicates the defendant

received a two-level increase for possessing a dangerous weapon, then the offense should

preclude the inmate from receiving certain Bureau program benefits. If no such enhancement

was given, the offense should not preclude the inmate from receiving such benefits.

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18 U.S.C. § 241 Conspiracy to deprive civil rights (if conspiracy)

18 U.S.C. § 371 Conspiracy to commit offense/fraud

18 U.S.C. § 372 Conspiracy to impede or injure officer

18 U.S.C. § 924 Penalties for firearms violations

18 U.S.C. § 2118(d) Robberies involving controlled substances

21 U.S.C. § 846 attempt and conspiracy

21 U.S.C. § 848 Controlled substances violations as criminal enterprise

21 U.S.C. § 963 Conspiracy or attempt to violate controlled substance laws

e. Special Circumstances. 18 U.S.C. § 922(g). All offenses under 18 U.S.C. § 922(g) shall

preclude an inmate from receiving certain Bureau program benefits.

*18 U.S.C. § 2113(a). Excluding bank robbery (see Section 3.b. above), other offenses covered

by 18 U.S.C. § 2113(a), (for example, bank larceny), will be reviewed similarly to offenses in

Section 4.b of this program statement. Defendants may receive an SOC enhancement that will

result in an increase in the base offense level. Such enhancements provide for an increase in the

defendant's base offense level if:

■ a firearm was discharged;

■ a firearm or other dangerous weapon was brandished, displayed, possessed, or used; or

■ an express or implied threat of death was made (U.S.S.G. § 2B3.2(b), Application Notes 2

and 6).

If a defendant received such an enhancement, or one of the other enhancements involving the use

or threatened use of force, the offense precludes the inmate from receiving certain Bureau

program benefits.

18 U.S.C. § 2243. A conviction for sexual abuse of a minor or ward shall preclude an inmate

from receiving certain Bureau program benefits.

18 U.S.C. § 2339C. A conviction for the financing of terrorism shall preclude an inmate from

receiving certain Bureau program benefits.

18 U.S.C. § 2339D. A conviction for receiving military-type training from a foreign terrorist

organization shall preclude an inmate from receiving certain Bureau program benefits.