Perez-Olivo v. Chavez, 394 F.3d 45 (1st Cir. 01/07/2005)

[1] United States Court of Appeals For the First Circuit

[2] No. 04-1486

[3] 394 F.3d 45, 2005

[4] January 7, 2005; as amended February 3, 2005

[5] JIMMY PEREZ-OLIVO, PETITIONER, APPELLANT,
v.
RICARDO E. CHAVEZ, WARDEN, M.D.C. GUAYNABO, RESPONDENT, APPELLEE.

[6] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District Judge]

[7] Judith H. Mizner, Assistant Federal Public Defender, by appointment of the court, for appellant.

[8] Jimmy Perez-Olivo, on brief, pro se.

[9] Nelson Perez-Sosa, Assistant United States Attorney, with whom H. S. Garcia, United States Attorney, was on brief for appellee.

[10] Before Lynch, Circuit Judge, Campbell, Senior Circuit Judge, and Stahl, Senior Circuit Judge.

[11] The opinion of the court was delivered by: Stahl, Senior Circuit Judge

[12] Jimmy Perez-Olivo ("Perez-Olivo") appeals the denial of his petition for a Writ of Habeas Corpus filed under 28 U.S.C. § 2241. He alleges that the Bureau of Prisons ("BOP") has wrongly interpreted 18 U.S.C. § 3624(b)(1), thereby depriving him of the possibility to earn a maximum of fifty-four days of good conduct time for each of the ten years he has been sentenced to serve. Finding the GCT statute to be ambiguous under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), and the BOP's interpretation reasonable, we affirm the decision of the district court.

[13] I. BACKGROUND

[14] Petitioner-appellant Perez-Olivo is currently serving year nine of a ten-year sentence, imposed after he pleaded guilty to one count of violating 21 U.S.C. § 841(a)(1) (possession with intent to distribute two kilograms of cocaine), and one count of violating 18 U.S.C. § 924(c)(1) (possession of a firearm in relation to a drug trafficking crime). For each year of his incarceration, Perez-Olivo has earned the maximum amount of "good conduct time" ("GCT") available under the GCT statute, 18 U.S.C. § 3624(b), as interpreted by the BOP. The BOP estimates that if Perez-Olivo continues this good conduct, he will earn a total of 470 days GCT to be credited towards his ten-year sentence. This calculation is based on fifty-four days of earned GCT per year for each complete year Perez-Olivo actually has served, plus a prorated amount of GCT for the last portion of the year he actually serves. Perez-Olivo alleges, however, that he is entitled to 540 days of GCT under 18 U.S.C. § 3624(b)(1). This difference arises from the fact that the BOP calculates GCT based on the time the prisoner actually serves, and Perez-Olivo urges that 18 U.S.C. § 3624(b)(1) requires that GCT be calculated based on the time the prisoner is sentenced to serve.The BOP's method of calculation is set forth in Program Statement 5880.28, which is part of its Sentencing Computation Manual. Through a series of examples, the Program Statement applies a formula which essentially multiplies the number of days served by 0.148 (which is 54/365) for a prisoner who has earned the maximum amount of GTC possible. This formula has the effect of awarding a maximum of fifty-four days GCT for each full year actually served, and a prorated amount of GCT for each portion of a year actually served, based on a rate of fifty-four days of GCT per 365 days in a year. *fn1

[15] The BOP has also promulgated a rule, using the notice and comment procedure of the Administrative Procedure Act, 5 U.S.C. § 553, which reflects its interpretation of "term of imprisonment" as "time served" for purposes of calculating GCT. See 28 C.F.R. § 523.20. That rule states that "[p]ursuant to 18 U.S.C. § 3624(b), . . . an inmate earns 54 days credit toward service of sentence (good conduct time credit) for each year served." 28 C.F.R. § 523.20.

[16] Thus, since both the Program Statement and 28 C.F.R. § 523.20 are premised on the BOP's interpretation of "term of imprisonment" in § 3624(b)(1) to mean "time served," we must decide whether it is permissible for the BOP to interpret "term of imprisonment" to mean "time served" rather than "sentence imposed."

[17] II. DISCUSSION

[18] When we are asked to review an agency's construction of a statute that it administers, we review that agency's interpretation de novo, subject to established principles of deference, and begin with the language of the statute. See Goldings v. Winn, 383 F.3d 17, 21 (1st Cir. 2004). The statute at issue here, 18 U.S.C. § 3624(b)(1), provides that:

[19] [A] prisoner who is serving a term of imprisonment of more than 1 year[,] other than a term of imprisonment for the duration of a prisoner's life, may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term, subject to determination by the [BOP] that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations. . . . [C]redit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.

[20] Thus, at the end of each year, a prisoner's conduct is evaluated, and if the prisoner has "displayed exemplary compliance with institutional disciplinary regulations," the BOP may award the prisoner credit of up to fifty-four days at the end of each year of the prisoner's term of imprisonment. See 18 U.S.C. § 3624(b)(1).

[21] A. Judicial Review of 18 U.S.C. § 3624(b)(1)

[22] To evaluate the BOP's interpretation of "term of imprisonment" as used in the GCT statute to mean "time served," we look to the familiar two-part test enunciated in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). First, "employing traditional tools of statutory construction, [we must] ascertain[] [whether] Congress had an intention on the precise question at issue." Id. at 843 n.9. If the answer to this inquiry is yes, then "that intention is the law and must be given effect." See id. If, however, "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843.

[23] (2) Language of the Statute

[24] In step one of our Chevron analysis, we must ascertain whether Congress has spoken on the precise question at issue. Id., 467 U.S. at 843 n.9. We begin with the actual language of the statute, and ask whether the phrase "term of imprisonment" has a "plain and unambiguous meaning with regard to the particular dispute in [this] case." See Duckworth v. Pratt & Whitney, Inc., 152 F.3d 1, 5 (1st Cir. 1998) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)). Because Congress has chosen not to define the phrase "term of imprisonment" in the statute itself, we can look to the dictionary for clarification of the plain meaning of the words selected by Congress. See United States v. Lachman, 387 F.3d 42, 50 (1st Cir. 2004) ("Dictionaries of the English language are a fundamental tool in ascertaining the plain meaning of terms used in statutes and regulations."). Webster's Third New International Dictionary (1996) defines "term" as "a limited or definite extent of time: the time for which something lasts." It defines "imprisonment" as "constraint of a person either by force or by such other coercion as restrains him within limits against his will." The dictionary does little to resolve the ambiguity posed here.

[25] (3) Statute as a Whole

[26] Having determined that the plain language of the statute, standing alone, is ambiguous, we next ask whether this ambiguity can be resolved by looking to the "specific context in which [the] language is used, and the broader context of the statute as a whole." Robinson, 519 U.S. at 341. Contrary to Perez-Olivo's contention, and the now-reversed conclusion of the United States District Court for the Western District of Wisconsin in White v. Scibana, 314 F. Supp. 2d 834, 838-39 (W.D. Wis. 2004), rev'd, White v. Scibana, No. 04-2410, 2004 WL 2749863 (7th Cir. Dec. 2, 2004), the phrase "term of imprisonment" is used inconsistently throughout 18 U.S.C. § 3624. For example, in § 3624(a), "term of imprisonment" plainly refers to the "sentence imposed." That section states that each prisoner "shall be released by the [BOP] on the date of the expiration of the prisoner's term of imprisonment, less any time credited toward the service of the prisoner's sentence." 18 U.S.C. § 3624(a). Plainly, if the BOP is instructed to deduct time credited from the "term of imprisonment," then the "term of imprisonment" can only mean the "sentence imposed." See 18 U.S.C. § 3624(a).

[27] We compare the use of the phrase "term of imprisonment" in § 3624(a) with the use of that same phrase in § 3624(d). In § 3624(d), the phrase "term of imprisonment" is plainly used to mean "time served." That section states: "Upon the release of a prisoner on the expiration of the prisoner's term of imprisonment, the [BOP] shall furnish the prisoner with [suitable clothing, an amount of money not to exceed $500, and transportation]." 18 U.S.C. § 3624(d). Plainly, Congress intended the prisoner be furnished with these items upon release after completion of his "time served." See 18 U.S.C. § 3624(d); see also Loeffler v. Bureau of Prisons, No. 04-4627, 2004 WL 2417805, at *3 (S.D.N.Y. Oct. 29, 2004) ("[I]t would make no sense to provide these amenities at a time when the prisoner's original imposed sentence had expired--a date that would obviously occur after the prisoner had been released based on the good time credits.").

[28] (4) Legislative History

[29] After finding that the statute as a whole does not resolve the ambiguity, we next check the legislative history of the statute to confirm our conclusion. See Summit Inv. & Dev. Corp. v. Leroux, 69 F.3d 608, 610 (1st Cir. 1995) ("[T]he congressional intendment conveyed by unclear statutory language may be discernible from its legislative history."). *fn2

[30] An earlier GCT statute, 18 U.S.C. § 4161 (repealed), was in effect in various forms from 1902 until 1984, at which time Congress codified the current GCT statute as part of the Comprehensive Crime Control Act ("CCCA"). See Pub. L. No. 98-473, 98 Stat. 1976 (1984) (codified as amended in scattered sections of 18, 21, 28, 31, and 42 U.S.C.). The legislative history of the repealed GCT statute reveals a clear congressional intent to calculate GCT based on the "sentence imposed" rather than the "time served." See, e.g., H. Rep. 86-935 (1959), reprinted in 1959 U.S.C.C.A.N. 2518, 2518-19 (discussing 1959 amendment to § 4161 intended in part to reverse a 1952 court decision interpreting the statute as requiring GCT to be calculated based on time served rather than sentence imposed). Contrary to Perez-Olivo's contention, however, the legislative history of the GCT statute at issue in this case does not indicate any congressional intent to calculate GCT based on "time served" or "sentence imposed."

[31] An overarching purpose of the new GCT statute was to make the "computation of credit toward early release pursuant to section 3624(b) [] considerably less complicated than under current law." S. Rep. 98-224, at 146 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3329. The "current law" at that time provided for, among other things, a different rate of GCT depending on the length of the prison term. See id. This goal of simplification in the new statute was intended to serve two functions: to increase the certainty of a prisoner's release date and to promote administrative efficacy. See id. at 147, 1984 U.S.C.C.A.N. at 3330.

[32] Perez-Olivo argues that this legislative intent to simplify the computation of GCT supports his position that he should earn fifty-four days per year for each year of his ten-year sentence imposed--what could be easier than multiplying fifty-four by ten? Perez-Olivo's position, however, does not account for the proration language contained in the last sentence of § 3624(b)(1), which states that "credit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence." 18 U.S.C. § 3624(b). In light of this proration language, the BOP's method of calculation could not be simpler: a prisoner earns fifty-four days per year for each year served, and then the last portion of the year served is prorated based on a rate of 54/365. Thus, it conforms with the legislative intent evidenced in the Senate Report that "[t]he credit toward early release is earned at a steady and easily determined rate that will have an obvious impact on the prisoner's release date." See S. Rep. 98-224 at 147, 1984 U.S.C.C.A.N. at 3330.

[33] Perez-Olivo proposes an alternative interpretation of the proration language. He claims that it is included in the statute simply because "not all sentences are for full years." According to Perez-Olivo, if a prisoner is sentenced to one and one-half years, the proration language is included in the statute to address the "one-half year" portion of that sentence. Although we find Perez-Olivo's reading of the proration language unpersuasive, it does serve to confirm our original conclusion that "term of imprisonment," as used in § 3624(b)(1), is ambiguous--an ambiguity that cannot be resolved by looking to the legislative history of the statute.

[34] In further support of his position, Perez-Olivo points to general statements regarding GCT made just after the passage of the CCCA. See, e.g., 131 Cong. Rec. E37-02 (Jan. 3, 1985) (Statement of Rep. Lee Hamilton introducing his Washington report for Wed., Oct. 31, 1984, into the Cong. Rec., which states: "Now sentences will be reduced only 15% for good behavior."). We find that such statements do not evidence a clear congressional intent to calculate GCT based on "sentence imposed," but instead can be read to indicate a "shorthand reference to the fact that the statute permits a prisoner to receive GCT credit based on 15% of the prisoner's time served (54 days divided by 365 days) rather than a sub silentio interpretation of the meaning of 'term of imprisonment.'" See Loeffler, 2004 WL 2417805, at *5 n.1. Thus, the legislative history does not help resolve the ambiguity. *fn3

[35] (5) Other Jurisdictions

[36] Lastly, we note that we are not alone in our conclusion that § 3624(b)(1) is ambiguous. Almost every other court that has visited this issue, including two other circuit courts of appeal, *fn4 has found that "term of imprisonment" is ambiguous as used in § 3624(b)(1) and has upheld the BOP's interpretation of that term as meaning "time served." White v. Scibana, No. 04-2410, 2004 WL 2749863, at *4 (7th Cir. Dec. 2, 2004); Pacheco-Camacho v. Hood, 272 F.3d 1266, 1271 (9th Cir. 2001); Moore v. Bureau of Prisons, No. 04-5011, 2004 WL 2609589 (S.D.N.Y. Nov. 17, 2004); Young v. Ashcroft, No. 04-1449, 2004 WL 2624724 (D. Or. Nov. 16, 2004); Sash v. Zenk, No. 04-2476, 2004 WL 2549724 (E.D.N.Y Nov. 9, 2004); Loeffler, 2004 WL 2417805, at *3; Graves v. Bledsoe, 334 F. Supp. 2d 906, 908 (W.D. Va. Aug. 19, 2004); Pasciuti v. Drew, No. 04-043, 2004 WL 1247813, at *4-5 (N.D.N.Y. June 2, 2004). *fn5 The only court that has found "term of imprisonment" to mean unambiguously "sentence imposed" was recently reversed on appeal. See White v. Scibana, No. 04-2410, 2004 WL 2749863 (7th Cir. Dec. 2, 2004) (reversing White v. Scibana, 314 F. Supp. 2d 834 (W.D. Wisc. 2004)). We now join these other courts and conclude that the phrase "term of imprisonment" as used in § 3634(b) is ambiguous, and that this ambiguity cannot be resolved by looking at either the context of the statute as a whole or the statute's legislative history.

[37] B. Review of the BOP's Interpretation of 18 U.S.C. § 3624(b)

[38] Thus, having determined that § 3624(b)(1) is ambiguous, we move to the second step in our Chevron analysis and ask whether the BOP's interpretation of the statute is a reasonable one. See Bryson v. Shumway, 308 F.3d 79, 86-87 (1st Cir. 2002) ("If Congress has not spoken on the precise question at issue, we respect the statutory interpretation of the federal administrative agency given that interpretative task, unless the interpretation is unreasonable.").

[39] (1) Delegation of Authority to Interpret § 3624(b)

[40] As a preliminary matter, since there is no express delegation of authority by Congress to the BOP in the statute to interpret the phrase "term of imprisonment," we must ask whether Congress has implicitly delegated this interpretative authority to the BOP. See Pacheco-Camacho, 272 F.3d at 1270. We conclude that it has.

[41] We begin by noting that 5 U.S.C. § 301 provides for executive agency rulemaking authority, and that the Attorney General has expressly authorized the BOP "[to take final action in] [a]pproving inmate disciplinary and good time regulations (18 U.S.C. § 3624)." 28 C.F.R. § 0.96(s). Moreover, under the GCT statute, the BOP is charged with evaluating prisoner conduct to determine whether a prisoner has earned GCT, and if so, how much. The statute provides that the award of GCT is:

[42] subject to determination by the Bureau of Prisons that, during [the] year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations. . . . [and] if the Bureau determines that, during that year, the prisoner has not satisfactorily complied with such institutional regulations, the prisoner shall receive no such credit toward services of the prisoner's sentence or shall receive such lesser credit as the Bureau determines to be appropriate.

[43] 18 U.S.C. § 3624(b)(1) (emphasis added).

[44] The BOP is also charged with prorating GCT credit "for the last year or portion of a year of the term of imprisonment." Id. Therefore, the BOP must necessarily interpret "term of imprisonment," either as "time served" or "sentence imposed," in order to determine how much GCT can be awarded.

[45] (2) Whether the BOP's Interpretation is Reasonable

[46] Having determined that Congress has implicitly charged the BOP with interpreting the ambiguous phrase "term of imprisonment," we need only inquire whether the BOP's interpretation is reasonable. *fn6 See Chevron, 467 U.S. at 844. The statute first directs the BOP that a prisoner "may receive credit toward the service of the prisoner's sentence . . . at the end of each year." 18 U.S.C. § 3624(b)(1). This is a clear congressional directive that the BOP look retroactively at a prisoner's conduct over the prior year, which makes it reasonable for the BOP only to award GCT for time served.

[47] Second, the statute goes on to direct the BOP that a prisoner only may receive GCT "[if] the prisoner has displayed exemplary compliance with institutional disciplinary regulations." 18 U.S.C. § 3624(b)(1). This evidences Congress' clear intent that the BOP evaluate a prisoner's conduct during his time in prison, making it reasonable for the BOP to require that time actually be served in order for the conduct during that time to be evaluated.

[48] Lastly, the statute provides that "credit for the last year or portion of a year of the term of imprisonment shall be prorated." 18 U.S.C. § 3624(b)(1). We find it reasonable for the BOP to read this proration language in conjunction with the "54 days at the end of each year" language to allow a prisoner to earn a maximum of fifty-four days for each full year served, and then to earn a prorated amount of GCT for the last portion of a year served, at a rate of 54/365 GCT days per year.

[49] (3) Rule of Lenity

[50] Perez-Olivo argues, however, that we should not give deference under Chevron to the BOP's interpretation of the GCT statute. He argues instead that we should apply the rule of lenity. We disagree. The rule of lenity provides that "where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant." United States v. Bass, 404 U.S. 336, 348 (1971). Here, we are evaluating the reasonableness of the BOP's calculation of reductions in a sentence for GCT, which is not, strictly speaking, a "criminal" statute, and thus we do not believe the rule of lenity would apply. This determination, however, is unnecessary, because even if we were to assume, arguendo, that the GCT statute was "criminal," we note that "[t]he rule of lenity applies only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended." Reno v. Koray, 515 U.S. 50, 65 (1995) (citations and internal quotation marks omitted). Furthermore, the rule of lenity does not foreclose deference to an administrative agency's reasonable interpretation of a statute. See Babbitt v. Sweet Home Chapter of Communities, 515 U.S. 687, 704 n.18 (1995) ("We have never suggested that the rule of lenity should provide the standard for reviewing facial challenges to administrative regulations whenever the governing statute authorizes criminal enforcement."). Thus, because we find that the BOP's method of calculating GCT based on "time served" is reasonable under § 3624(b), it would be unnecessary to resort to the rule of lenity even if it were to apply to the GCT statute.

[51] III. CONCLUSION

[52] For the reasons set forth above, the denial of Perez-Olivo's petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 is AFFIRMED.


Opinion Footnotes

[53] *fn1 To remove this from the abstract, assume a prisoner is sentenced to ten years' imprisonment. At the end of year one, if the prisoner has "displayed exemplary compliance," the BOP may award him up to a maximum of fifty-four days of GCT. Assume this exemplary compliance continues for the next seven years. At the end of year eight, our model prisoner has earned a total of 432 days of GCT (fifty-four days per year for eight years). This means that, at a minimum, the prisoner will not serve any of year ten. In addition, the prisoner will not serve all of year nine (432 - 365 days not served in year 10 = 67 days in year nine that will not be served). In order to calculate the prisoner's estimated GCT for year nine, we look to the statute, which instructs us that "credit for the last year or portion of a year of the term of imprisonment shall be prorated." See 18 U.S.C. § 3624(b)(1). Since the prisoner can receive a maximum of fifty-four days per year served, any period served that is less than one year is prorated at a rate of 54/365. This means that for each day served in year nine, the prisoner has the potential to earn 0.148 (54/365) days GCT. Going into year nine, the prisoner starts with only having to serve 298 days (365 - 67 days carried over from his GCT earned during years one through eight) of year nine. Then, as the prisoner approaches his projected release date, he is simultaneously earning the possibility of additional GCT days. His total GCT for serving just under eight and three-quarter years in prison is 470 days. That equals fifty-four days for each of his eight full years served and forty-eight days for his last portion of a year served.

[54] *fn2 Some circuits have questioned the role of legislative history in step one of a Chevron analysis. See, e.g., Coke v. Long Island Care At Home, Ltd., 376 F.3d 118, 127 & n.3 (2d Cir. 2004) (commenting that "the Supreme Court has issued mixed messages as to whether a court may consider legislative history [in the first step of a Chevron analysis]"); Am. Rivers v. Fed. Energy Regulatory Comm'n, 201 F.3d 1186, 1196 & n.16 (9th Cir. 2000) ("acknowledg[ing] the debate over the propriety, under Chevron, of venturing beyond plain meaning analysis and resorting to traditional implements of statutory construction to ascertain a clear congressional directive"). First, we note that the Supreme Court has recently again used legislative history to confirm the plain meaning of language used in a statute in step one of its Chevron analysis. See Gen. Dynamics Land Sys. v. Cline, 124 S. Ct. 1236, 1241-43 (2004). Second, in this case, we merely use the legislative history to confirm that it does not resolve the ambiguity in § 3624(b)(1), and therefore we need not reach the issue of whether we would accept the legislative history as conclusive evidence of Congress' intent to interpret "term of imprisonment" if it were contrary to the BOP's interpretation.

[55] *fn3 Perez-Olivo also urges us to consider Senator Joseph Biden's comments in the Congressional Record as legislative history supporting his reading of the statute. See 141 Cong. Rec. S2348-01, S2349 (Feb. 9, 1995) (statement of Sen. Biden). Senator Biden, nearly twelve years after the passage of the CCCA, was quoted as saying "I was the co-author of [the CCCA]. In the Federal courts, if a judge says you are going to go to prison for 10 years, you know you are going to go to prison for at least 85 percent of that time--8.5 years, which is what the law mandates. You can get up to 1.5 years in good time credits, but that is all. And we abolished parole. So you know you'll be in prison for at least 8.5 years." Id. We first question whether statements made almost twelve years after the passage of an act can appropriately be used as interpretive guides. See Goldings, 383 F.3d at 32 (noting that "there is reason to heed the Supreme Court's frequent admonition that using subsequent legislative history to interpret a statute is a hazardous endeavor"). Second, as discussed above, Senator Biden's references to "85 percent" and "8.5 years" can be construed as mere shorthand for the calculation of GCT. See Loeffler, 2004 WL 2417805, at *5 n.1.

[56] *fn4 The Sixth Circuit has also upheld the BOP's method of calculation in two unpublished opinions, Brown v. Hemingway, 53 Fed. Appx. 338 (6th Cir. 2002); Williams v. Lamanna, 20 Fed. Appx. 360 (6th Cir. 2001).

[57] *fn5 A notice of appeal was filed with the Second Circuit on June 21, 2004, and the parties are currently submitting briefs. See Pasciuti v. Drew, No. 04-4039 (2d Cir.).

[58] *fn6 The BOP Program Statement would not likely be entitled to full Chevron deference, but should be accorded some lesser degree of deference under the Supreme Court's decisions in United States v. Mead Corp., 533 U.S. 218, 230-31 (2001), and Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). We need not, however, attempt to discern the appropriate level of deference, because the BOP's interpretation of the statute (calculating GCT based on "time-served") is embodied in 28 C.F.R. § 523.20, which was adopted pursuant to the notice-and-comment procedure of the Administrative Procedure Act, see 62 Fed. Reg. 50,786 (Sept. 26, 1997). Thus, the BOP policy of calculating GCT based on "time served" is entitled to full deference under Chevron. See Bryson, 308 F.3d at 84; see also White, 2004 WL 2749863, at *3; Pacheco-Comacho, 272 F.3d at 1268.

402 F.3d 172

United States Court of Appeals,
Third Circuit.
David O'DONALD, Appellant
v.
Tracy JOHNS, Warden.
No. 04-2990.

Submitted Under Third Circuit L.A.R. 34.1(a)March 3, 2005.
March 22, 2005.

Background: Federal prisoner sought writ of habeas corpus, challenging Bureau of Prisons' (BOP) calculation of his good conduct time (GCT). The United States District Court for the Western District of Pennsylvania, Kim R. Gibson, J., denied relief, and prisoner appealed.

Holdings: The Court of Appeals held that:
(1) BOP reasonably interpreted statute as calculating GCT based on time actually served, and
(2) rule of lenity did not apply.
Affirmed.

*172 David O'Donald, Loretto, PA, pro se.

Bonnie R. Schlueter, Office of United States Attorney, Pittsburgh, PA, for Appellee.

Before SLOVITER, BARRY and FISHER, Circuit Judges.


OPINION OF THE COURT

PER CURIAM.

David O'Donald appeals from the District Court's order denying his habeas corpus *173 petition filed under 28 U.S.C. § 2241. In his habeas petition, O'Donald challenges the calculation of his good conduct time ("GCT") by the Bureau of Prisons ("BOP"). For the following reasons, we will affirm the District Court's order.

O'Donald is currently incarcerated at the Federal Correctional Institution in Loretto, Pennsylvania, serving a federal sentence of 144 months for armed bank robbery. According to the BOP, O'Donald is eligible under the applicable statute, 18 U.S.C. § 3624(b), to earn up to 564 days of GCT. Under its calculation of GCT, the BOP projects O'Donald's release date as May 4, 2007.

After exhausting administrative remedies, O'Donald challenged the BOP's calculation of his GCT by filing a habeas corpus petition in the District Court. In his habeas petition, O'Donald argues that the BOP's calculation of his GCT deprives him of the amount to which he is entitled by statute. O'Donald asserts that § 3624(b) allows him to earn up to 54 days per year of the term of sentence imposed, not 54 days per year of time actually served as the BOP's calculation provides.

The Magistrate Judge to whom the case was assigned disagreed with O'Donald and recommended denying his habeas corpus petition. After receiving O'Donald's objections, the District Court adopted the Magistrate Judge's report and recommendation and denied O'Donald's petition. O'Donald appeals. [FN1]

FN1. We have jurisdiction pursuant to 28 U.S.C. § § 1291 and 2253(a). We exercise plenary review over the District Court's legal conclusions and apply a clearly erroneous standard to its findings of fact. See Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir.2002).

The version of § 3624(b) applicable to O'Donald provided in relevant part:
A prisoner who is serving a term of imprisonment of more than one year, other than a term of imprisonment for the duration of his life, shall receive credit toward the service of the prisoner's sentence, beyond the time served, of fifty-four days, at the end of each year of his term of imprisonment, beginning at the end of the first year of the term, unless the Bureau of Prisons determines that, during that year, he has not satisfactorily complied with such institutional disciplinary regulations as have been approved by the Attorney General and issued to the prisoner.... Credit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.
18 U.S.C. § 3624(b) (effective Nov. 1, 1987).

The BOP interprets the statute as allowing 54 days of GCT "for each year served." 28 C.F.R. § 523.20. To effectuate its interpretation of the statute, the BOP utilizes a formula for calculating GCT which takes into account the fact that an inmate's time actually served becomes incrementally shorter each year as he is awarded GCT. See White v. Scibana, 390 F.3d 997, 999-1000 (7th Cir.2004) (explaining the BOP's formula).

O'Donald argues that the plain language of the statute requires the BOP to calculate GCT based on the sentence imposed, not time served. He points to the phrase "term of imprisonment" as clear indication that the statute unambiguously requires calculation of GCT based on the sentence imposed rather than time served. [FN2] The *174 BOP, on the other hand, argues that the phrase unambiguously refers to time served.

FN2. To the extent that O'Donald relies on the District Court's opinion in White v. Scibana, 314 F.Supp.2d 834 (W.D.Wis.2004), the Seventh Circuit reversed the District Court's decision. See White, 390 F.3d at 1003. We are also aware of Williams v. Dewalt, 351 F.Supp.2d 412 (D.Md. 2004), in which the District Court ruled that § 3624(b) is not ambiguous and that the BOP's calculation is improper. For the reasons explained herein, however, we disagree with Williams' analysis and conclusions.

We disagree with both contentions. In our view, it is unclear whether the phrase "term of imprisonment," as used several times in § 3624(b), refers to the sentence imposed or time served. The final sentence quoted above appears to refer to time served. Moreover, § 3624(b) establishes a process of awarding GCT at the end of each year of imprisonment based on an inmate's behavior while incarcerated. As an inmate earns GCT each year, his overall time to serve is reduced. To calculate GCT based on the sentence imposed would allow an inmate to earn GCT for time he was not actually incarcerated. See White, 390 F.3d at 1002. This unseemly result would frustrate the process and militates against finding that the phrase "term of imprisonment" unambiguously refers to the sentence imposed. Id. at 1002. On the other hand, we cannot agree with the BOP that the phrase unambiguously refers to time served. As used initially in the opening sentence of § 3642(b), the phrase appears to refer to the sentence imposed. We thus conclude that the meaning § 3624(b) is ambiguous in this regard. See Perez-Olivo v. Chavez, 394 F.3d 45, 52 (1st Cir.2005); White, 390 F.3d at 1002-03; Pacheco-Camacho v. Hood, 272 F.3d 1266, 1270 (9th Cir.2001).

Because the meaning of § 3624(b) is ambiguous, we must defer to the BOP's interpretation if it is reasonable. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Stiver v. Meko, 130 F.3d 574, 577 (3d Cir.1997). We agree with the First, Seventh, and Ninth Circuits that the BOP's interpretation is reasonable. [FN3] See Perez-Olivo, 394 F.3d at 53; White, 390 F.3d at 1003; Pacheco-Camacho, 272 F.3d at 1270-71. In particular, we agree that the BOP's interpretation comports with the language of the statute, effectuates the statutory design, establishes a "fair prorating scheme," enables inmates to calculate the time they must serve with reasonable certainty, and prevents certain inmates from earning GCT for time during which they were not incarcerated. Pacheco-Camacho, 272 F.3d at 1270-71.

FN3. To date, no other Court of Appeals has answered this question in a published opinion.

O'Donald's remaining argument is that if § 3624(b) is ambiguous, the District Court should have applied the rule of lenity and resolved the ambiguity in his favor. This argument lacks merit. We do not resort to the rule of lenity where, as here, we can otherwise resolve the ambiguity of the statute. See Caron v. United States, 524 U.S. 308, 316, 118 S.Ct. 2007, 141 L.Ed.2d 303 (1998); Pacheco-Camacho, 272 F.3d at 1271- 72.

In short, the District Court properly rejected O'Donald's challenge to the BOP's calculation of GCT. Accordingly, we will affirm the District Court's order denying his habeas corpus petition.

402 F.3d 172

END OF DOCUMENT

White v. Scibana, 390 F.3d 997, No. 04-2410 (7th Cir. 12/02/2004)

[1] In the United States Court of Appeals For the Seventh Circuit

[2] No. 04-2410

[3] 390 F.3d 997, 2004

[4] December 2, 2004; as amended February 14, 2005

[5] YANCEY LAMARR WHITE, PETITIONER-APPELLEE,
v.
JOSEPH SCIBANA, RESPONDENT-APPELLANT.

[6] Appeal from the United States District Court for the Western District of Wisconsin. No. 03 C 0581 C -- Barbara B. Crabb, Chief Judge.

[7] Before Easterbrook, Evans and Sykes, Circuit Judges.

[8] The opinion of the court was delivered by: Sykes, Circuit Judge

[9] ARGUED SEPTEMBER 9, 2004

[10] This appeal presents a question of statutory interpretation involving the calculation of "goodtime credit" for prisoners serving federal sentences. Under the good-time statute, an eligible prisoner may receive credit "beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term," subject to the Bureau of Prisons' determination that "during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations." 18 U.S.C. § 3624(b)(1). Yancey White's behavior has been exemplary in all but one of his years behind bars: after serving eight years of his tenyear sentence for distribution of cocaine base, he is entitled to all but ten days of the good-time credit allowed him under the statute. The question is, how much time is that?

[11] The Bureau of Prisons interprets the good-time statute as allowing an award of up to fifty-four days of credit for each year the inmate actually serves in prison. The term an inmate actually serves is not the term imposed by the court but something less; annual good-time awards operate to incrementally reduce the term of imprisonment imposed in the sentence. The statutory good-time calculation is thus (according to the Bureau's interpretation) not fifty-four days times the number of years imposed but fifty-four days for each year actually served. According to this method of calculation, the Bureau plans to release White on March 3, 2005.

[12] White contends that the good-time statute unambiguously entitles inmates to fifty-four days of credit for each year of the sentence imposed, minus any deductions for disciplinary violations. According to this method of calculation, White believes he is entitled to be released on December 23, 2004. He petitioned for relief under 28 U.S.C. § 2241. The district court agreed with White's interpretation of § 3624(b)(1) and ordered his release date recalculated. White v. Scibana, 314 F. Supp. 2d 834 (W.D. Wis. 2004). We reverse.

[13] I. Background

[14] In August 1996 Yancey White was sentenced by the United States District Court for the Southern District of Illinois to 120 months in prison for three counts of distributing cocaine base. He is serving that sentence at the Federal Correctional Institution in Oxford, Wisconsin. In March 2003 White filed a request for administrative remedy asserting that his good-time credit had been miscalculated. He claimed entitlement to fifty-four days of good-time credit for each year of the ten-year sentence imposed by the court, or a total of 540 days. The warden denied the request, citing § 3624(b) and explaining that the statute allowed inmates to earn fifty-four days of good conduct time for each year served, not each year of the sentence imposed. The warden told White that because he would not be in service of the full ten-year sentence, his good-time credit could not be calculated by simply multiplying fifty-four by ten. Applying a formula the Bureau uses to calculate good-time credit on the basis of time served, the warden informed White that he was entitled to 470 days of good-time credit (later reduced by ten days for a disciplinary infraction). White appealed to the regional and central offices of the Bureau, both of which denied relief.

[15] White filed a habeas corpus petition under 28 U.S.C. § 2241 in the United States District Court for the Western District of Wisconsin. The district court granted relief, concluding that "§ 3624(b) is unambiguous: 'term of imprisonment' means 'sentence imposed.' Therefore, the bureau must calculate an inmate's good conduct time on the basis of his sentence rather than on the time he has served." White, 314 F. Supp. 2d at 836. The court ordered Warden Joseph Scibana to recalculate White's release date. The warden appealed.

[16] II. Discussion

[17] The federal prisoner "good-time" statute provides, in pertinent part:

[18] (a) Date of release. -- A prisoner shall be released by the Bureau of Prisons on the date of the expiration of the prisoner's term of imprisonment, less any time credited toward the service of the prisoner's sentence as provided in subsection (b).

[19] (b) Credit toward service of sentence for satisfactory behavior. --

[20] (1) [A] prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner's life, may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations.

[21] ....

[22] [C]redit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.

[23] 18 U.S.C. § 3624 (emphasis added).

[24] The Bureau has promulgated a rule reflecting its interpretation of the good-time statute: "[p]ursuant to 18 U.S.C. § 3624(b)... an inmate earns 54 days credit toward service of sentence (good conduct time credit) for each year served." 28 C.F.R. § 523.20 (emphasis added). The Bureau has also issued, as part of its Sentence Computation Manual, Program Statement 5880.28, which depicts a formula addressing the problem of calculating good-time credit on sentences of a year and a day and provides examples of the partial-year proration at the end of a sentence.

[25] The Bureau's proration and year-and-a-day formula is based on the premise that for every day a prisoner serves on good behavior, he may receive a certain amount of credit toward the service of his sentence, up to a total of fifty-four days for each full year. Thus, under the Bureau's formula, a prisoner earns.148 days' credit for each day served on good behavior (54 ÷ 365 =.148), and for ease of administration the credit is awarded only in whole day amounts. Recognizing that most sentences will end in a partial year, the Bureau's formula provides that the maximum available credit for that partial year must be such that the number of days actually served will entitle the prisoner (on the.148-per-day basis) to a credit that when added to the time served equals the time remaining on the sentence.*fn1

[26] When an agency interprets a statute it administers, judicial review is normally deferential. "We have long since recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 844 (1984). But the threshold question before deferential review is triggered is "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43. However, "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843.

[27] Not all agency interpretations of ambiguous statutes are entitled to full Chevron deference; some are treated as persuasive only, based upon the form, content, circumstances, and reflected expertise of the interpretation. United States v. Mead Corp., 533 U.S. 218, 227-28, 238 (2001), discussing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Full Chevron deference is limited to cases in which "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," as when the agency engages in adjudication or notice-and-comment rulemaking. Mead, 533 U.S. at 227; U.S. Freightways Corp. v. Comm'r. of Internal Revenue, 270 F.3d 1137, 1141 (7th Cir. 2001).

[28] Other agency interpretations issued pursuant to comparable authority and procedure may also claim Chevron deference, see Mead, 533 U.S. at 230-31; Krzalic v. Republic Title Co., 314 F.3d 875, 879 (7th Cir. 2002), but neither the Supreme Court nor this court has clarified the outer limits of the universe of less formal agency interpretations that might qualify. We need not attempt to do so here (and the issue of lesser deference under Mead-Skidmore does not come into play) because the Bureau's interpretation of the good-time statute is embodied in 28 C.F.R. § 523.20, adopted pursuant to notice-and-comment rulemaking. See 62 Fed. Reg. 50,786 (Sept. 26, 1997). The Bureau's discretion to resolve ambiguities in the good-time statute is implicit in its statutory authority to determine and award good time and release prisoners when their sentences, as adjusted by the Bureau for good-time credit, have expired. 18 U.S.C. §§ 3624(a), (b). The Bureau's interpretation of § 3624(b) is therefore entitled to full Chevron deference.*fn2

[29] But first there is the question of whether the statute is clear. The district court and the parties have focused primarily on the meaning of the statutory phrase "term of imprisonment." The phrase appears several times in § 3624. In subsection (a) the statute says that the Bureau shall release a prisoner "on the expiration of the prisoner's term of imprisonment, less any time credited" under subsection (b). The phrase "term of imprisonment" as used in subsection (a) must refer to the expiration of the sentence imposed, since it is axiomatic that a prisoner is released when he has served out his sentence. Similarly, in subsection (b), the statute provides that a prisoner is eligible for good-time credit if he is "serving a term of imprisonment of more than 1 year," other than a term of life imprisonment. In this part of the statute "term of imprisonment" must also refer to the sentence because the Bureau has to determine whether a prisoner is eligible for the credit on the first day he arrives in prison. Prisoners sentenced to terms of slightly more than one year may or may not spend one calendar year in prison, depending on how much good-time credit they ultimately receive. If "term of imprisonment" here means time served, then an inmate who initially would be eligible for the credit because his sentence was, say, 366 days, would become ineligible once the credit was taken into account.

[30] But the specific use of the phrase "term of imprisonment" at issue here -- in the part of the statute that describes how good-time credit is awarded -- appears not to refer to the sentence imposed. Subsection (b) provides that a prisoner "may receive" good-time credit "beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment," subject to the Bureau's determination that the prisoner's behavior during that year has been exemplary. The statute thus establishes a process of awarding credit at the end of each year of imprisonment based on a review of the prisoner's behavior during that year, a process that would be undermined if "term of imprisonment" means "sentence imposed." This is because the accumulation of good-time credit reduces the amount of time a prisoner will ultimately spend in prison, sometimes (as in White's case), by more than an entire year. The Bureau cannot evaluate a prisoner's behavior and award credit for good conduct if the prisoner is not still in prison.

[31] As we have noted, the statute anticipates the problem of a partial year at the end of a sentence by providing for proration of the credit for the partial year and awarding it in the last six weeks of the sentence. 18 U.S.C. § 3624(b)(1). But the Bureau cannot predict precisely the length of the partial year at the end of a prisoner's sentence when he first sets foot in prison, for everything depends on whether good time is awarded at the end of each year. Thus, if "term of imprisonment" refers to the sentence imposed, it becomes impossible to award the credit based on an annual year-end assessment of the prisoner's behavior. And such retrospective annual assessment and award of credit appears to be at the core of what the good-time statute is all about.*fn3 To interpret "term of imprisonment" as "sentence imposed" for purposes of awarding good-time credit would entitle an inmate to receive credit for good conduct in prison for time -- perhaps several years of time -- that he was not in prison.

[32] The district court applied the general rule of statutory construction that identical words used in different parts of the same statute are presumed to have the same meaning. White, 314 F. Supp. 2d at 838-39, citing Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995), and Firstar Bank, N.A. v. Faul, 253 F.3d 982, 990 (7th Cir. 2001). The rule is only a presumption, of course, and "the presumption is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent." General Dynamics Land Sys., Inc. v. Cline, 124 S.Ct. 1236, 1238 (2004) (quoting Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932)).

[33] Sometimes when this canon of construction is invoked (or resisted), the apparent conflict is generated by uses of the same term in different parts of a large single piece of legislation. See, e.g., Hotel Equities Corp. v. Comm'r of Internal Revenue, 546 F.2d 725, 728 (7th Cir. 1976); Matter of Merchant's Grain, Inc., 93 F.3d 1347, 1356 (7th Cir. 1996). This case presents the unusual situation of an apparent conflict in meaning of the same phrase within a single statute, indeed within a single statutory subsection, which might otherwise strengthen the presumption in favor of harmonization. But it is impossible to make sense of 28 U.S.C. § 3624 while giving the phrase "term of imprisonment" one meaning throughout. "Term of imprisonment" can only mean "sentence imposed" when used in subsection (a) and in the eligibility language of subsection (b); attributing the same meaning to the phrase when it is used in subsection (b) to describe how good-time credit is awarded is inconsistent with the retrospective year-end evaluation and award system the statute contemplates. We must conclude that 18 U.S.C. § 3624 is ambiguous in that it does not clearly indicate whether the fifty-four days' credit for good conduct for each year of the prisoner's "term of imprisonment" is based on the sentence imposed or the time served in prison. We defer to the Bureau's reasonable interpretation of the statute, which awards the credit for each year served in prison rather than each year of the sentence imposed.

[34] One other circuit court has addressed this issue, and our decision today is consistent with its analysis. In Pacheco-Camacho v. Hood, 272 F.3d 1266, 1271 (9th Cir. 2001), the Ninth Circuit concluded that § 3624 was ambiguous on the question of whether good-time credit was to be awarded on the basis of the sentence imposed or time served, and under Chevron deferred to the Bureau's interpretation. For the foregoing reasons, the order of the district court granting White's petition for a writ of habeas corpus under 28 U.S.C. § 2241 is REVERSED.


Opinion Footnotes

[35] *fn1 As applied to a model inmate serving a sentence of a year and a day, the formula results in an anticipated release at day 319. On that day, the inmate will have earned forty-seven days of good time (319 x.148 = 47.2), and 47 + 319 = 366, or the full year-anda-day sentence. BOP Program Statement 5880.28 at 1-45.

[36] *fn2 The formula contained in Program Statement 5880.28 is premised upon the Bureau's position that 18 U.S.C. § 3624(b) allows fifty-four days of good-time credit for each year served. As we have noted, the Bureau's "time served" -- as opposed to "sentence imposed" -- interpretation of the good-time statute is contained in 28 C.F.R. § 523.20. Because the Program Statement is consistent with the regulation, we do not further address the Program Statement.

[37] *fn3 The warden points to the language of the prior good-time statute to emphasize the retrospective nature of good-time awards under the current statute. Congress adopted 18 U.S.C. § 3624 as part of the Comprehensive Crime Control Act of 1984, effective November 1, 1987. Its predecessor, 18 U.S.C. § 4161, provided that each prisoner "shall be entitled to a deduction from the term of his sentence beginning with the day on which the sentence commences to run." The amount of the credit varied based upon the length of the sentence, ranging from five days a month for a sentence at the low end (a sentence of six months to a year) to ten days a month for a sentence of ten years or more. A companion statute, 18 U.S.C. § 4165, provided that "earned good time may be forfeited" if the prisoner violated institutional rules. Thus, the prior good-time scheme contemplated a prospective good-time entitlement, subject to later forfeiture for disciplinary infractions. In contrast, 18 U.S.C. § 3624(1)(b) establishes a system of annual performance reviews and credit awards, subject to the proration for a partial final year and award in the last six weeks.