Opinion
No. 5:16-CT-3152-D
02-28-2018
John C. GIOVANETTI, Plaintiff, v. C. HOLLAND, et al., Defendants.
John C. Giovanetti, pro se Genna D. Petre, United States Attorney's Office, Raleigh, NC, for Defendants
John C. Giovanetti, pro se
Genna D. Petre, United States Attorney's Office, Raleigh, NC, for Defendants
ORDER
JAMES C. DEVER III, Chief United States District Judge
On June 27, 2016, John C. Giovanetti ("Giovanetti"), an inmate at Federal Correctional Complex Butner proceeding pro se and in forma pauperis, filed this action seeking declaratory and injunctive relief [D.E. 1, 4, 9]. Giovanetti attacks the decision of the Bureau of Prisons ("BOP"), which the BOP made pursuant to BOP Program Statement 5110.17 (May 16, 2014), to notify state and local law enforcement officials that Giovanetti soon will be on federal supervised release and that his criminal history includes a conviction for a "crime of violence." Thereafter, Giovanetti filed various motions seeking to amend his complaint and recharacterize his action as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Pl.'s Mot. to Substitute Attach. [D.E. 7-1]; Pl.'s Mot. to Recharacterize Attach. [D.E. 10-1]; Pl.'s Mot. to Am. Attach. [D.E. 14-1].
On January 17, 2017, the court granted in part and denied in part Giovanetti's motions to amend [D.E. 17]. The court construed the claim to implicate the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551, et seq., allowed the claim to proceed, and held that Giovanetti could not recharacterize the action as a habeas petition. See id. 2.
On March 23, 2017, defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted [D.E. 24] and filed a memorandum in support [D.E. 25]. On April 12, 2017, Giovanetti responded in opposition [D.E. 27]. As discussed below, the court grants defendants' motion to dismiss and dismisses the action.
I.
On May 12, 2008, the United States District Court for the Middle District of Florida sentenced Giovanetti to 135 months' imprisonment after he was convicted of 23 counts of wire fraud, bank fraud, and conspiracy. See Pl.'s Mot. to Am. Attach. [D.E. 14-1] 3. Giovanetti's projected release date is June 25, 2018. See BOP Inmate Locator, http://www.bop.gov/inmateloc/ (search by inmate name) (last visited Feb. 28, 2018).
Pursuant to BOP Program Statement 5110.17 (May 16, 2014) ("BOP Program Statement"), the BOP classified Giovanetti as a "violent offender" because his criminal history includes a conviction for a "crime of violence" in Florida in 1974. See Compl. [D.E. 1] at 3-9; BOP Program Statement § 3(b). BOP Program Statement § 3(b) states:
Procedures in this Program Statement also apply to any prisoner in Bureau custody:
• Who is releasing to supervised release, probation, or parole.
• Whose current offense of conviction is a "drug trafficking crime" or a "crime of violence" as defined in Sections 2.b, or
• Whose criminal history as determined by staff, in the exercise of professional judgment includes a conviction for "drug trafficking" or a "crime of violence" as defined in sections 2.b. For "drug trafficking crimes," staff consider only Federal
convictions as a basis for notification. For "crimes of violence," staff consider both state and federal convictions as a basis for notification.
BOP Program Statement § 2(b) states:
A Crime of Violence is defined under Title 18 U.S.C. § 924(c)(3) as an offense that is a felony and:
• Has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
• 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.
Giovanetti seeks to prevent the BOP from notifying state and local law enforcement officials that he is about to be released from federal prison, has a term of federal supervised release, and has a criminal history that includes a conviction for a crime of violence. See Compl. at 1.
The BOP determined that Giovanetti has a "crime of violence" in his criminal history due to a 1974 Florida conviction. On January 10, 1974, Giovanetti and two co-defendants, while displaying a pistol, allegedly robbed an individual of currency valued at more than $ 100 that was the property of Food Fair, Inc., doing business as Pantry Pride. See [D.E. 14-2] 23. Florida charged Giovanetti with robbery and use of a firearm in commission of a felony. See id. On March 11, 1974, Giovanetti pleaded guilty to the lesser offense of attempted robbery. [D.E. 14-2] 24. On June 5, 1974, the Florida sentencing judge withheld adjudication and placed Giovanetti on probation for seven years. [D.E. 14-2] 25. On January 1, 1978, Giovanetti absconded from probation. On August 30, 1978, Giovanetti was arrested for violating probation. [D.E. 14-2] 20. On September 11, 1978, Giovanetti pleaded guilty to violating probation. Id. On January 15, 1979, Florida reinstated Giovanetti's probation. Id. On June 5, 1981, Florida terminated Giovanetti's probation. Id.
Giovanetti makes three arguments. First, Giovanetti argues that the notification requirement in the BOP Program Statement misconstrues 18 U.S.C. § 4042(b), exceeds the BOP's authority under 18 U.S.C. § 4042(b), and is arbitrary and capricious. See Compl. [D.E. 1] 6-7; Pl.'s Mot. to Am. Attach. [D.E. 14-1] 3. Second, Giovanetti argues that he was not convicted of a "crime of violence" within the meaning of the BOP Program Statement or 18 U.S.C. § 924(c)(3), because he pleaded guilty to attempted robbery. See Pl.'s Mot. to Am. Attach. [D.E. 14-1] at 21-27. Finally, Giovanetti argues that, because he was placed on probation and adjudication was withheld after his 1974 guilty plea to attempted robbery, he was not "convicted" within the meaning of the BOP Program Statement or 18 U.S.C. § 4042(b)(3)(B). See Pl.'s Resp. [D.E. 27] at 5.
II.
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for "failure to state a claim upon which relief can be granted" tests a claim's legal and factual sufficiency. Fed. R. Civ. P. 12(b)(6) : see Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-63, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012) ; Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) ; accord Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). In considering a motion to dismiss, a court need not accept a pleading's legal conclusions. See, e.g., Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Similarly, a court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 677-79, 129 S.Ct. 1937. Moreover, a court may take judicial notice of public records without converting a motion to dismiss into a motion for summary judgment. See, e.g., Fed. R. Evid. 201 ; Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) ; Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). As for Giovanetti's argument that the BOP Program Statement misconstrues 18 U.S.C. § 4042(b), exceeds BOP's authority under 18 U.S.C. § 4042(b), and is arbitrary and capricious, the BOP must provide a notice of release for certain prisoners. See 18 U.S.C. § 4042(a)(5) ("The Bureau of Prisons, under the direction of the Attorney General, shall provide notice of release of prisoners in accordance with subsections (b) and (c)."). Section 4042(b) states:
(1) At least 5 days prior to the date on which a prisoner described in paragraph (3) is to be released on supervised release, or, in the case of a prisoner on supervised release, at least 5 days prior to the date on which the prisoner changes residence to a new jurisdiction, written notice of the release or change of residence shall be provided to the chief law enforcement officers of each State, tribal, and local jurisdiction in which the prisoner will reside. Notice prior to release shall be provided by the Director of the Bureau of Prisons. Notice concerning a change of residence following release shall be provided by the probation officer responsible for the supervision of the released prisoner, or in a manner specified by the Director of the Administrative Office of the United States Courts. 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 conditions 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 the prisoner was convicted of—
(A) a drug trafficking crime, as that term is defined in section 924(c)(2) ; or
(B) a crime of violence (as defined in section 924(c)(3) ).
Section 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.
18 U.S.C. § 924(c)(3). The BOP Program Statement implements BOP policy concerning 18 U.S.C. § 4042.
The APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. Under the APA, courts shall "hold unlawful and set aside agency action... found to be... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law... [or] in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. § 706(2)(A), (C) ; see Defs. of Wildlife v. N. Carolina Dep't of Transp., 762 F.3d 374, 393 (4th Cir. 2014) ; People for the Ethical Treatment of Animals, Inc. v. U.S. Dep't of Agric., 194 F. Supp. 3d 404, 409 (E.D.N.C. 2016). In deciding whether an agency's action is arbitrary or capricious, "the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment," but the court may not "substitute its judgment for that of the agency." Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The BOP is an "agency" for APA purposes. See, e.g., White v. Henman, 977 F.2d 292, 294 (7th Cir. 1992).
Agency regulations that fill gaps in a legislative scheme are "given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, courts apply Chevron deference only "when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority." United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001).
BOP Program Statements are not entitled to Chevron deference. See, e.g., Cunningham v. Scibana, 259 F.3d 303, 306 (4th Cir. 2001) ; see also Bunn v. Conley, 309 F.3d 1002, 1005 (7th Cir. 2002). Instead, courts review BOP Program Statements under Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). See Hogge v. Wilson, 648 F. App'x 327, 330 (4th Cir. 2016) (per curiam) (unpublished). Under Skidmore, "interpretations contained in formats such as opinion letters are entitled to respect... but only to the extent that those interpretations have the ‘power to persuade.’ " Christensen v. Harris Cty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (quotations omitted).
Giovanetti cites Henrikson v. Guzik, 249 F.3d 395 (5th Cir. 2001), and argues that the BOP has misconstrued 18 U.S.C. § 4042(b) in the BOP Program Statement to require it to notify state and local authorities about a prisoner whose criminal history includes a "crime of violence" as opposed to a prisoner whose most recent federal conviction is a "crime of violence." Giovanetti then notes that his most recent federal convictions (i.e., wire fraud, bank fraud, and conspiracy) were not crimes of violence.
In Henrikson, Henrikson argued 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 the BOP's notification policy in BOP Program Statement 5110.12 (Jan. 21, 1998) exceeded the BOP's "statutory authority under section 4042(b)." Id. at 397. Henrikson admitted that his 1977 state-court arson conviction was a "crime of violence" as defined in 18 U.S.C. 924(c)(3), but argued that the conviction for which he was presently incarcerated (i.e., possession of unregistered firearms in violation of 26 U.S. C. § 5861(d) ) was not a "crime of violence" as defined in 18 U.S.C. 924(c)(3). See id. Thus, according to Henrikson, BOP Program Statement 5110.12 (Jan. 21, 1998) was invalid. See id.
In Henrikson, the BOP argued that 18 U.S.C. § 4042 required it to provide release notification if the prisoner's criminal history included a "crime of violence," even if the offense for which the prisoner was currently incarcerated was not a crime of violence. The United States Court of Appeals for the Fifth Circuit rejected the BOP's argument and held that the BOP's construction of 18 U.S.C. § 4042(b)(3) in BOP Program Statement 5110.12 (Jan. 21, 1998) was not permissible or persuasive. See id. at 399. According to the Fifth Circuit, section 4042(b)(3)'s text and overall scheme manifest that Congress only required the BOP to notify state and local authorities of the prisoner's release if the prisoner's "current conviction was for a crime of violence or a drug trafficking crime." Id. Thus, "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." Id. (emphasis in original). In reaching this conclusion, the Fifth Circuit expressly declined to "address[ ] whether Henrikson would have any general constitutional or statutory right to prevent the Bureau from notifying state and/or local law enforcement" that his criminal history included a conviction for a "crime of violence." Id. at 399 n.6.
Unlike in Henrikson, "the BOP does not argue here that § 4042(b) requires notifications based on an individual's criminal history." [D.E. 25] 13 (emphasis added). "Rather, the BOP defers to the plain meaning of § 4042(b) and applies the statute as written, but adds an additional circumstance to its internal Program Statement where the BOP, in its discretion and apart from § 4042(b), provides notification to law enforcement." Id. at 13-14.
Section 4042(b) "does not prohibit the BOP from doing certain things," including notifying state and local authorities about a federal prisoner being released into the community to serve a term of federal supervised release who the BOP has determined has a criminal history that includes a conviction for a "crime of violence" as defined in the BOP Program Statement. See Bunn, 309 F.3d at 1010 ; Sutherland v. Flemming, 229 F.3d 1164 (10th Cir. 2000) (unpublished table opinion). Thus, the APA provides no relief to Giovanetti because the BOP's Program Statement is not an interpretation of 18 U.S.C. § 4042(b). Moreover, Congress has not prohibited the BOP from adding additional circumstances to its internal Program Statement concerning notification about federal prisoners who are about to begin a term of federal supervised release. See Bunn, 309 F.3d at 1010.
Next, Giovanetti argues that the BOP acted arbitrarily in concluding that he was convicted of a "crime of violence" as defined in the BOP Program Statement and section 924(c)(3) because the crime to which he pleaded guilty in 1974 was merely attempted robbery. See Pl.'s Mot. to Am. Attach. [D.E. 14-1] 21-27. Whether an offense constitutes a "crime of violence" under the BOP Program Statement or section 924(c)(3) is a question of law. See United States v. McNeal, 818 F.3d 141, 151 (4th Cir. 2016). The BOP Program Statement and section 924(c)(3) contain two clauses: the "force clause," asking whether the offense "has as an element the use, attempted use, or threatened use of physical force against the person or property of another," and the "residual clause," asking whether the offense, "by its nature, involves a substantial risk that physical force against the person or property of another may be used." United States v. Fuertes, 805 F.3d 485, 498 (4th Cir. 2015).
Initially, the court analyzes whether Giovanetti's attempted robbery conviction qualifies as a "crime of violence" under the force clause. In doing so, the court assumes without deciding that it should apply the "categorical approach." See Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). The "categorical approach" requires courts to "compare the elements of the statute forming the basis of the defendant's conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly understood." Id. Under the categorical approach, the court does not consider the facts of the defendant's underlying conduct. See Fuertes, 805 F.3d at 498. "The key... is elements, not facts." Descamps, 133 S. Ct. at 2283.
In construing a state statute, a federal court may not interpret the state statute differently that the state's highest court. See Johnson v. Fankell, 520 U.S. 911, 916, 117 S.Ct. 1800, 138 L.Ed.2d 108 (1997) ; United States v. White, 836 F.3d 437, 444 (4th Cir. 2016). If a state's highest court has not ruled on an issue, a federal court looks to the decisions of a state's intermediate appellate court. See United States v. Winston, 850 F.3d 677, 684 (4th Cir. 2017). In reviewing the statute of conviction in question, the court consults the law that applied at the time of the conviction for that offense. See McNeill v. United States, 563 U.S. 816, 820-22, 131 S.Ct. 2218, 180 L.Ed.2d 35 (2011) ; Rivera v. United States, 716 F.3d 685, 688 (2d Cir. 2013).
In 1974, Giovanetti was charged with robbery and use of a firearm in commission of a felony. See [D.E. 14-2] 23 (citing Fla. Stat. §§ 790.07, 813.011 ). In 1974, Florida defined robbery as follows:
Whoever, by force, violence or assault or putting in fear, feloniously robs, steals and takes away from the person or custody of another, money or other property which may be the subject of larceny, shall be guilty of a felony of the first degree, punishable by imprisonment in the state prison for life or for any lesser term of years, at the discretion of the court.
Fla. Stat. § 813.11 (1973); see Davis v. State, 277 So.2d 300, 302 (Fla. Dist. Ct. App. 1973) (noting that robbery was punishable by imprisonment for life and describing robbery as a crime where the defendant "unlawfully by force and violence, did feloniously rob, steal and take away from the person or custody of [the victim] money or other property... with intent permanently to deprive the true owner of his property").
Fla. Stat. § 813.011 was subsequently revised and renumbered as Fla. Stat. § 812.13.
In 1974, Giovanetti pleaded guilty to attempted robbery. See [D.E. 14-2] 24. In 1974, Florida statutorily defined criminal attempt, in relevant part, as follows:
Whoever attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such an offense, but fails in the perpetration, or is intercepted or prevented in the execution of the same, shall, when no express provision is made by law for the punishment of such attempt, be punished as follows:
...
(2) If the offense attempted is a felony of the first or second degree, the person convicted shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084 ....
Fla. Stat. § 777.04 (1973) ; see Gustine v. State, 86 Fla. 24, 97 So. 207, 208 (1923) (criminal attempt is "intent to commit a crime, coupled with an overt act apparently adapted to effect that intent, carried beyond mere preparation, but falling short of execution of the ultimate design."). Thus, in 1974, Florida law defined the elements of attempted robbery as "the formation of an intention to commit the crime of robbery and the doing of some physical act intended to accomplish the commission of the crime." Cooper v. Wainwright, 308 So.2d 182, 184 (Fla. Dist. Ct. App. 1975). In 1974, the elements of attempted robbery in Florida included "intent" and a "physical act" with some application of "force, violence or assault or putting in fear." See Fla. Stat. § 813.011 (1973) ; Gustine, 97 So. at 208 ; Cooper, 308 So.2d at 184 ; Davis, 277 So.2d at 302.
Applying the "categorical approach" in light of governing Florida law, the BOP did not act arbitrarily or capriciously in concluding that Giovanetti's 1974 conviction for attempted robbery is a "crime of violence" under the force clause of the BOP Program Statement and section 924(c)(3). As noted, the "force clause" of the relevant definition of a "crime of violence" includes "attempted use... of physical force against the person or property of another." BOP Program Statement § 2(b) (emphasis added); 18 U.S.C. § 924(c)(3)(A) (emphasis added); see Johnson v. United States, 559 U.S. 133, 143, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (interpreting a similar provision in 18 U.S.C. § 924(e)(2)(B)(i) that requires "the use, attempted use, or threatened use of physical force against the person of another" to mean "violent force"); United States v. Lockley, 632 F.3d 1238, 1240-45 (11th Cir. 2011) ; see also Myrthil v. United States, No. 16-22467-CIV-COOKE/TORRES, 2016 WL 8542856, at *14 (S.D. Fla. Dec. 29, 2016) (unpublished); James v. United States, No. 16-14245-CIV-MOORE/LYNCH, 2016 WL 8914560, at *11 (S.D. Fla. Dec. 7, 2016) (unpublished), R&R rejected in part on other grounds , 2017 WL 1831671 (S.D. Fla. Mar. 1, 2017) (unpublished); Fairnot-Woods v. United States, No. 1:13-CR-127-TWT-JSA-2, 2016 WL 7192144, at *4 (N.D. Ga. Nov. 17, 2016) (unpublished); Richitelli v. United States, No. 16-61345-CIV-COHN/SELTZER, 2016 WL 9132037, at *10-11 (S.D. Fla. Oct. 25, 2016) (unpublished). Thus, Giovanetti's 1974 conviction qualifies as a crime of violence under the BOP Program Statement and section 924(c)(3)(a). In light of this conclusion, the court need not address the residual clause in the BOP Program Statement or 18 U.S.C. § 924(c)(3)(B).
Finally, Giovanetti argues that, because the court in Florida withheld adjudication after Giovanetti pleaded guilty to attempted robbery, the BOP erred in concluding that he was "convicted" of a crime of violence under the BOP Program Statement. See Pl.'s Resp. [D.E. 27] 5. In support, Giovanetti cites Clarke v. United States, 184 So.3d 1107 (Fla. 2016). In Clarke the Supreme Court of Florida addressed a question certified by the United States Court of Appeals for the Eleventh Circuit:
Giovanetti also argues that the BOP erred in concluding that he had a conviction under 18 U.S.C.§ 4042(b)(3)(B). The BOP, however, did not rely on section 4042(b)(3)(B). See [D.E. 1-1] 3, 6, 9; see also [D.E. 25] 10-15. It relied on the BOP Program Statement. See [D.E. 1-1] 3, 6, 9; see also [D.E. 25] 10-15.
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Florida law prohibits a person from "own[ing] or ... hav[ing] in his or her care, custody, possession, or control any firearm... if that person has been... [c]onvicted of a felony in the courts of [Florida]." Fla. Stat. § 790.23(1). For
proposes of that statute, does a guilty plea for a felony for which adjudication was withheld qualify as a "conviction]"?
Id. at 1108 (quoting United States v. Clarke, 780 F.3d 1131, 1133 (11th Cir. 2015) ) (alteration in original). In Clarke, the Supreme Court of Florida concluded that a guilty plea to a felony for which adjudication was withheld did not constitute a "conviction" under Fla. Stat. § 790.23(l)(a). Clarke, 184 So.3d at 1116. In reaching this conclusion, the Supreme Court of Florida noted that the purpose of Fla. Stat. § 790.23(1) was "to keep firearms out of the hands of persons who are dangerous or who might reoffend." Id. at 1115-16. The Clarke court then reasoned that this propose is not accomplished where adjudication was withheld because "a trial court has found that the defendant is not likely to engage in further criminal conduct." Id. at 1115.
The Clarke court noted that whether a withheld adjudication constitutes a "conviction" under Florida law varies according to the circumstances. See id. at 1113-15. For example, Fla. Stat. § 775.13(1) concerns registration of convicted felons and defines "convicted" to mean a determination of guilt "regardless of whether adjudication is withheld." See Clarke, 184 So.3d at 1113. Similarly, Fla. Stat. § 775.084(2) concerns sentence enhancements for habitual violent felony offenders and expressly treats probation or community control without an adjudication of guilt as a prior "conviction." See Clarke, 184 So.3d at 1113. Likewise, in Florida sentencing proceedings under Florida Rule of Criminal Procedure 3.701(d) or Florida capital sentencing proceedings, a guilty plea for which adjudication was withheld is considered a prior "conviction." See Clarke, 184 So.3d at 1113-14 (citing McCrae v. State, 395 So.2d 1145, 1153-54 (Fla. 1980) (per curiam)). Furthermore, a guilty plea for which adjudication was withheld for certain qualifying offense is considered a prior "conviction" for sex offender registration. See Clarke, 184 So.3d at 1113 (citing Fla. Stat. § 943.0435(1)(b) ).
Clarke does not help Giovanetti. The BOP Program Statement does not define conviction, and Congress has not mandated that the BOP use a particular definition of conviction in connection with the BOP's notification under section 3.b of the BOP Program Statement. In fact, as discussed, Congress has not mandated that the BOP notify state and local authorities about a prisoner "[w]hose criminal history as determined by staff, in the exercise of professional judgment, includes a conviction for ‘drug trafficking’ or a ‘crime of violence’ as defined in section 2.b." BOP Program Statement § 3.b. Rather, as discussed, the BOP has discretion to provide such notification. See Bunn, 309 F.3d at 1009-10.
This court concludes that the BOP has discretion to determine what constitutes a conviction "in a prisoner's criminal history for purposes of notification under section 3.b" and that the BOP permissibly determined that Giovanetti's criminal history includes such a qualifying conviction. See id. In reaching this conclusion, the court recognizes that whether a Florida guilty plea to a felony with adjudication withheld constitutes a "conviction" varies depending on the circumstances. See Clarke, 184 So.3d at 1113-16. Such an adjudication would not be a felony "conviction" for purposes of a Florida criminal prosecution for being a felon in possession of a firearm or for purposes of a federal prosecution under 18 U.S.C. § 922(g)(1). See United States v. Clarke, 822 F.3d 1213, 1214-15 (11th Cir. 2016) (per curiam); 18 U.S.C. § 921(20) ; see also United States v.Walters, 359 F.3d 340, 343–47 (4th Cir. 2004) (holding that a juvenile adjudication is not a "conviction" under Virginia law and cannot serve as the underlying conviction for purposes of a federal prosecution under 18 U.S.C. § 922(g)(1) ).
On the other hand, such an adjudication concerning a qualifying offense would be a "conviction" under 21 U.S.C. § 841. See, e.g., United States v. Storer, 413 F.3d 918, 922 (8th Cir. 2005) ; United States v. Fernandez, 58 F.3d 593, 599 (11th Cir. 1995) (per curiam); United States v. Mejias, 47 F.3d 401, 403-04 (11th Cir. 1995). Likewise, such an adjudication concerning a qualifying offense would be a "conviction" for purposes of a sentence enhancement under 18 U.S.C. § 2252A(b)(2). See Storer, 413 F.3d at 922. Similarly, in a federal sentencing proceeding, such an adjudication would qualify under U.S.S.G. § 4A1.2(f) as a "sentence" arising from "being convicted of an offense." See, e.g., United States v. Baptiste, 876 F.3d 1057, 1062 (11th Cir. 2017) ; United States v. Tamayo, 80 F.3d 1514, 1522-24 (11th Cir. 1996). Furthermore, as discussed, such an adjudication would require a person to register in Florida as a felon under Fla. Stat. § 775.13(1), could be used in Florida sentencing proceedings for a sentence enhancement under Fla. Statute § 775.084, could be used in a Florida sentencing proceedings under Florida Rule of Criminal Procedure 3.701 (d), could be used in Florida capital sentencing proceedings for a qualifying offense, and would require sex-offender registration in Florida for a qualifying offense. See Clarke, 184 So.3d at 1113-15. In light of Giovanetti's criminal history, the BOP did not act arbitrarily or capriciously in determining that Giovanetti had a qualifying conviction for a crime of violence in his criminal history and that it should notify Florida officials pursuant to the BOP Program Statement of Giovanetti's impending release within Florida to serve a term of federal supervised release. See Bunn, 309 F.3d at 1010-11 ; Sutherland, 229 F.3d at 1164.
III.
In sum, the court GRANTS defendants' motion to dismiss [D.E. 24] and DISMISSES AS MOOT plaintiff's motion seeking an estimated ruling date [D.E. 28]. The clerk shall close the case.
SO ORDERED. This 28 day of February 2018.