Lead Opinion
Petitioner-Appellee Frank Lopez challenges the manner by which the Federal Bureau of Prisons (“BOP”) calculates Good Conduct Time (“GCT”) under 18 U.S.C. § 3624(b). Lopez maintains he should be eligible to receive GCT for the 94 months he spent in state and federal custody prior to the date on which he was sentenced in district court (in addition to his time in custody following sentencing), even though those 94 months were credited to a prior state sentence. The BOP disagrees, asserting that Lopez can accrue GCT only as to the 38 months he spent in custody after he was sentenced.
This appeal presents, therefore, a question of statutory interpretation: whether 18 U.S.C. § 3624(b), which provides that an inmate may receive GCT “toward the service of the prisoner’s sentence ... of up to 54 days at the end of each year of the prisoner’s term of imprisonment,” permits the award of GCT for presentence custody served by an inmate that, under 18 U.S.C. § 3585(b), cannot be credited to the defendant’s federal sentence. The district court (Holwell, /.), agreeing with Lopez, held that the phrase “term of imprisonment” under 18 U.S.C. § 3624(b) means — and that an inmate can accrue GCT for — the total time served for a federal offense, both before and after sentencing, regardless of whether the inmate’s presentence custody is credited to another sentence. The BOP challenges this ruling. It contends that as used in § 3624(b), an inmate’s “term of imprisonment” is coterminous with his or her federal sentence as defined under 18 U.S.C. § 3585, such that he or she is eligible for GCT only as to the period of incarceration following the date of sentencing, as well as for any presentence custody credited to that period under § 3585(b).
BACKGROUND
I. The Statutory Framework Governing Good Conduct Time
We are concerned here principally with the interpretation and interaction of two statutes. The first, 18 U.S.C. § 3624(b), governs GCT, and provides in part:
[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.
18 U.S.C. § 3624(b)(1). The second, 18 U.S.C. § 3585, titled, “Calculation of a term of imprisonment,” provides in full:
(a) Commencement of sentence. — A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.
(b) Credit for prior custody. — A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences—
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.
Id. Under § 3585(b), therefore, the BOP may grant a defendant “credit” against his federal sentence for time served in custody prior to sentencing in district court so long as that presentence custody “has not been credited against another sentence.” 18 U.S.C. § 3585(b); see United States v. Labeille-Soto,
[Sjhould adjust the sentence for any period of imprisonment already served as a result of the conduct taken into account in determining the guideline range for the instant offense if the court determines that period of imprisonment will not bé credited to the federal sentence by the Bureau of Prisons.... For clarity, the court should note on the Judgment in the Criminal Case Order that the sentence imposed is not a departure*179 from the guideline range because the defendant has been credited for guideline purposes under § 5G1.3(b) ... [for time] served in state custody that will not be credited to the federal sentence under 18 U.S.C. § 3585(b).
U.S.S.G. § 501.3(b), cmt. n. 2 (2000); see United States v. Gonzalez,
II. The Facts and Procedural History
On August 11, 2000, Lopez was arrested in the Bronx, New York, for selling crack cocaine, and was charged by the State of New York with criminal sale of a controlled substance in the third degree. Lopez pled guilty to that charge in November 2000 and was sentenced to an indeterminate term of four and one-half to nine years imprisonment. In November 2004, after serving four years and three months in state custody, Lopez was transferred to federal custody pursuant to a writ of habeas corpus ad prosequendum, and in April 2005, Lopez was indicted by a federal grand jury on one count of conspiracy to distribute crack cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A). The only overt act specified in the federal indictment was Lopez’s August 11, 2000, sale of crack cocaine — the same offense for which he had earlier been convicted in state court.
Lopez pled guilty to the federal charge on September 27, 2007, and was sentenced on June 19, 2008; as of that date, Lopez was still serving his state sentence. The district court (Holwell, J.) determined at sentencing that Lopez was eligible for a 94-month adjustment under U.S.S.G. § 5G1.3(b) based on his presentence custody, since his prior state conviction qualified as relevant conduct with respect to his federal offense. (Because Lopez’s presentence custody was credited to his state sentence, no § 3585(b) credit was available.) The court thus imposed a 132-month term of imprisonment to run concurrent with Lopez’s state conviction, “with a credit for time served in state and federal custody from [August] 11, 2000.” The district court clarified in its written judgment that the term of imprisonment was 132 months, minus 94 months for time already served, which resulted in an actual term of 38-months imprisonment. After sentencing, Lopez was remanded to state custody to serve the remaining portion of his undischarged state sentence, which he completed on December 31, 2008. He then returned to federal custody to complete his federal sentence.
In early 2009, Lopez discovered that the BOP had calculated his release date as March 22, 2011, based on its determination that he was eligible for GOT only as to the 38 months he served following his date of sentencing in' district court. Lopez challenged this calculation in a letter submitted to the BOP, asserting that because the district court had sentenced him to 132-months imprisonment on his federal conviction, he should be eligible for GCT for the entirety of that 132-month term — i.e., from his arrest on August 11, 2000, onward. In a letter dated March 27, 2009, BOP Assistant General Counsel Sonya Cole explained that based on the agency’s interpretation of 18 U.S.C. § 3585(a), the
Thereafter, Lopez filed a 28 U.S.C. § 2241 petition for a writ of habeas corpus challenging the BOP’s interpretation of § 3624(b); the district court granted the petition in March 2010. The court held that the agency’s interpretation was unpersuasive under Skidmore,
DISCUSSION
We review de novo a district court’s ruling on a 28 U.S.C. § 2241 petition. See Gueits v. Kirkpatrick,
I. Agency Deference
Because the BOP is the agency charged with implementing § 3624(b), whether and to what extent we should defer to the BOP’s interpretation turns first on whether the statute is ambiguous. See Sash v. Zenk,
A. Chevron Deference
The parties contest the definition of “term of imprisonment” as used in the phrase, “[a prisoner] may receive credit toward the service of the prisoner’s sentence ... of up to 54 days at the end of each year of the prisoner’s term of imprisonment [.]” 18 U.S.C. § 3624(b) (emphasis added). Lopez asserts (and the district court agreed) that “term of imprisonment” means the total amount of time an inmate must serve in prison for a federal offense, both before and after sentencing, regardless of whether the inmate receives a “credit” under 18 U.S.C. § 3585(b) or an “adjustment” under U.S.S.G. § 5G1.3(b). The BOP counters that a “term of imprisonment” is coterminous with an inmate’s federal sentence as defined under 18 U.S.C. § 3585(a), such that GCT can be awarded for presentence custody “credited” under § 3585(b), but not for presentence custody “adjusted” under U.S.S.G. § 5G1.3(b). Because both of these interpretations are facially consistent with the language of the statute, and because the statute itself offers no clear definition for “term of imprisonment,” we have no difficulty concluding that § 3624(b) is ambiguous. Indeed, we have already reached this conclusion, albeit in a different context. See Sash,
Because § 3624(b) is ambiguous, the BOP asserts that we must, under Chevron, defer to its interpretation of the statute as set forth in 28 C.F.R. § 523.20, which the agency identifies as its implementing regulation. See generally United States v. Mead Corp.,
We are not convinced by the agency’s arguments. Although “the framework of deference set forth in Chevron ... applies] to an agency interpretation contained in a regulation,” Christensen v. Harris Cnty.,
Because we reject the BOP’s reliance on 28 C.F.R. § 523.20 as the basis for its construction of 18 U.S.C. § 3624(b), the agency interpretation at issue here is contained only in Sonya Cole’s March 2009 letter and the July 2009 ARP Decision by the BOP Regional Director. Cole’s letter is not entitled to Chevron deference. See Christensen,
B. Skidmore Deference
Where Chevron deference is not appropriate, we will defer to an agency’s interpretation “only to the extent that it has the power to persuade.” Catskill Dev., L.L.C. v. Park Place Entm’t Corp.,
Because the meaning of “term of imprisonment” is unclear, the BOP maintains that the phrase must be understood within the context of the statute as a whole and, in particular, in reference to the word “sentence” in the preceding phrase, “a prisoner ... may receive credit toward the service of the prisoner’s sentence”. 18 U.S.C. § 3624(b)(1) (emphasis added). And unlike “term of imprisonment,” the agency urges that under 18 U.S.C. § 3585 “sentence” has a clear and accepted definition under federal law. It contends, therefore, that because § 3624(b) links accrual of GCT to a prisoner’s sentence, and because a defendant’s federal sentence is defined in § 3585, that latter statute should inform how GCT is calculated. Applying this interpretation here, the BOP calculated Lopez’s GCT based solely on the 38 months of imprisonment he served following the date of sentencing because under § 3585(a), this term of imprisonment constituted Lopez’s federal sentence. The agency excluded from its GCT calculation the 94 months of imprisonment Lopez served in state and federal custody prior to sentencing, reasoning that under § 3585(b), those months of imprisonment could not form part of Lopez’s federal sentence because they had already been credited to his state sentence.
We find the BOP’s construction of 18 U.S.C. § 3624(b) persuasive. The agency’s contextual approach aligns with traditional canons of statutory interpretation. See Frank G. v. Bd. of Educ.,
In practice, this means in the ordinary course that a defendant is eligible for GCT as to each year served on the sentence imposed by the district court. Where an inmate is in custody prior to being sentenced, two possible scenarios arise. In the first, if a defendant is arrested for a federal offense and placed in presentence custody, the BOP will typically grant the defendant a credit against his sentence under 18 U.S.C. § 3585(b) for that period, but the agency is only empowered to do so after the district court has imposed its sentence. See United States v. Wilson,
In contrast, the second scenario arises when a defendant is convicted and sentenced in state court, and, while serving his state sentence, is indicted federally and sentenced in district court for an offense for which the relevant conduct includes his prior state conviction. Under these circumstances (which are analogous to the instant case), because the defendant’s presentence custody has already “been credit
We are persuaded by this reasoning. Although no express statutory language requires that § 3624(b) be read in tandem with § 3585, the above demonstrates that the agency’s approach is a valid and convincing construction of the statute, and is consistent with federal sentencing law. See Skidmore,
The lower court rejected this approach principally because it concluded that the agency’s construction of 18 U.S.C. § 3624(b) was inconsistent with 28 C.F.R. § 523.17(i), which the court viewed as permitting the award of GCT for periods of detention preceding the defendant’s federal sentencing date. This was incorrect. Section 523.17(i), which provides that “[a] pretrial detainee ... may be recommended for good time credit,” falls under Subpart B, Part 523 of Title 28 of the Code of Federal Regulations — titled “Extra Good Time” — pursuant to which “[t]he Bureau of Prisons awards extra good time credit for performing exceptionally meritorious service, or for performing duties of outstanding importance or for employment in an industry or camp.” 28 C.F.R. § 523.10(a). While the district court relied on § 523.17(i) to hold — contrary to the agency’s interpretation of § 3624(b) — that the BOP did in fact award GCT for pretrial detention that did not constitute part of an inmate’s federal sentence, Subpart B, Part 523 makes clear that “inmates sentenced under the Sentencing Reform Act provisions for offenses committed on or after November 1,1987 are not eligible for ... extra good time, but may be considered for a maximum of 54 days of good conduct time credit per year (see 18 U.S.C. § 3624(b)).” 28 C.F.R. § 523.10(b) (emphasis added). Indeed, as the Supreme Court observed in Barber, with the enact
That said, we recognize a certain tension between some of the institutional concerns the agency identifies and its construction of § 3624(b); this does not make its interpretation unpersuasive, however. One of the rationales advanced by the agency is that to award GCT for presentence custody adjusted to another sentence under U.S.S.G. § 5G1.3(b) would impose an undue administrative burden, because it would compel the BOP to monitor and assess disciplinary records from institutions outside its control. At first glance, this reasoning appears to undermine the agency’s construction. Lopez spent nearly four years in federal custody prior to his sentencing in district court, for which he did not receive GCT, and after sentencing, he spent six months in state custody, for which he did receive GCT. Were we to credit the agency’s rationale, the inverse should be true, since there is little question that the BOP’s administrative burden is significantly reduced if an inmate is in federal custody.
This is not the only relevant consideration, however. Although it may be more difficult for the BOP to monitor an inmate’s conduct when he or she is in state custody, if the agency has advance knowledge that such custody constitutes part of the inmate’s federal sentence, there is a clear incentive for it to do so. Here, because the district court ordered that Lopez’s federal sentence run concurrently with his undischarged state prison term, the BOP knew from the date of sentencing that any time Lopez spent in state custody from that point forward formed part of his federal sentence. Thus, the agency had an incentive to monitor Lopez’s behavior during the six months he spent in state custody following sentencing because it was aware that he was eligible for GCT during that period. See also Schleining,
II. Lopez’s Arguments
Lopez challenges the BOP’s interpretation of 18 U.S.C. § 3624(b) on three principal grounds. He first contends that the BOP applies two different meanings of “term of imprisonment” depending on whether a defendant receives a credit under § 3585(b) or an adjustment under U.S.S.G. § 5G1.3(b). In the former, he asserts that the BOP construes “term of imprisonment” to include time served pri- or to sentencing, and in the latter, he asserts that the agency restricts “term of imprisonment” to only the term served after sentencing. We reject this argument. As already discussed, see supra at 183-84, the agency uniformly construes “term of imprisonment” as coterminous with a defendant’s federal sentence. That this definition results in the award of GCT for presentence custody where a defendant receives a § 3585(b) credit, but not where a defendant receives a U.S.S.G. § 5G1.3(b) adjustment, does not mean that the agency’s construction of 18 U.S.C. § 3624(b) unfairly strains the meaning of “term of imprisonment.” Rather, this distinction derives simply from the statutory definition of a federal sentence, which excludes presentence custody credited to another sentence.
Second, Lopez maintains that the agency’s interpretation conflicts with our decision in United States v. Rivers,
[T]he effect of an adjustment is similar to that of a credit. In that sense, the adjustment is no less proscribed by the statutory minimum than where the prisoner is credited by the BOP for time already served. So long as the total period of incarceration, after the adjustment, is equal to or greater than the statutory minimum, the statutory dictate has been observed and its purpose accomplished. Here, Rivers was sentenced to an aggregate period of 64 months, above the minimum sentence mandated by 21 U.S.C. § 841(b)(1)(B). At the end of the day, the resulting adjusted sentence the district court imposed for the totality of the conduct amounts to the sentence intended by the statute.
Id. at 122 (internal citations omitted). Lopez points to Rivers as requiring that a 18 U.S.C. § 3585(b) “credit” and a U.S.S.G. § 5G1.3(b) “adjustment” be treated as functionally similar, thus barring the BOP from awarding GCT as to the former but not as to the latter. We disagree.
Although we held in Rivers that a U.S.S.G. § 5G1.3(b) adjustment should be treated similarly to a 18 U.S.C. § 3585(b) credit, we did so specifically in the context of interpreting the phrase “sentenced to a term of imprisonment” as used in 21 U.S.C. § 841(b)(1)(B), a statute markedly different from 18 U.S.C. § 3624(b). See Rivers,
Finally, Lopez advances a number of broader challenges to the validity of the BOP’s reasoning, asserting that the agency’s construction of § 3624(b) makes accrual of GCT contingent on the fortuity of a defendant’s federal sentencing date, and the agency’s distinction between a credit and an adjustment results in unwarranted sentence disparities between similarly situated defendants.
We acknowledge that in theory, if Lopez’s federal sentencing had proceeded more swiftly, the amount of time adjusted by the district court under § 5G1.3(b) might have been smaller given the shorter period of presentence custody, which in turn could have resulted in a longer federal sentence — a longer “term of imprisonment” — and a larger potential GCT award. But we reject Lopez’s contention that this possibility makes the accrual of GCT fortuitous, let alone arbitrary. A statutory interpretation can founder on this basis if it is absurd, see Troll Co. v. Uneeda Doll Co.,
We also reject Lopez’s assertion that the BOP treats similarly situated defendants differently without any rational justification. While the overall length of imprisonment ordered by a district court for a particular federal offense will be approximately the same regardless of whether a defendant receives a § 3585(b) credit or a § 5G1.3(b) adjustment, the federal sentence imposed in either case is different because in the latter circumstance, the defendant’s presentence custody has already been credited to a separate state offense. Lopez suggests this is too fine a distinction to justify awarding GCT differently among defendants who receive a credit rather
CONCLUSION
For the foregoing reasons, we are persuaded by the BOP’s interpretation of 18 U.S.C. § 3624(b), which limits the award of GCT to the term of imprisonment constituting a defendant’s federal sentence as defined under 18 U.S.C. § 3585; accordingly, we defer to that interpretation under Skidmore,
We therefore REVERSE the judgment of the district court and REMAND with instructions to dismiss Lopez’s 28 U.S.C. § 2241 petition.
Notes
. The district court also rejected the BOP’s argument that Lopez had failed to properly exhaust his administrative remedies. Because the BOP does not pursue this argument on appeal, it is deemed abandoned. See Sledge v. Kooi,
. That Lopez has been released from prison does not divest us of jurisdiction; he is still ■ "in custody” for purposes of 28 U.S.C. § 2241 because he remains subject to the conditions of his supervised release. See Dixon v. Miller,
. Sash concerned whether 18 U.S.C. § 3624(b)’s provision that an inmate may receive "up to 54 days [of GCT] at the end of each year of the prisoner’s term of imprisonment” meant that the inmate should accrue those 54 days "for each year served,” as urged by the BOP, or "for each year of the sentence imposed,” as urged by the petitioner. See Sash,
. As the district court noted, we previously observed in Payton that under "28 C.F.R. § 523.17(1), pretrial detainees may be recommended for good time credit for the time spent in pretrial custody.” United States v. Payton,
. Fatal to Lopez’s argument in this respect is his failure to appreciate fully the accepted definition of a federal sentence. While he maintains that he should receive GCT based on the 132-month term originally announced by the district court at his sentencing hearing, it is incontrovertible that Lopez's federal sentence was 38 months. See Gonzalez,
. As noted above, see supra at 179, Lopez pled guilty on September 25, 2007. Had he been sentenced on that date, as opposed to on June 19, 2008, the district court could have awarded Lopez an 85-month adjustment under U.S.S.G. § 5G1.3(b) based on presentence custody served for his related state offense, which once subtracted from the announced 132-month term, would have resulted in a total federal sentence of 47 months — nine months longer than the sentence actually imposed. Under 18 U.S.C. § 3624(b), Lopez would have been eligible for approximately 40 additional days of GCT for those nine months. See generally Barber,
Concurrence Opinion
concurring:
I believe the conclusion reached by the BOP is, as demonstrated by this Court’s opinion, quite sustainable. I am therefore concurring in that opinion in full (including in its skepticism about some of the arguments made by the BOP). I am also, however, quite sympathetic to the concerns inherent in the opinion of the district court in this case. As the opinion of our Court demonstrates, it would be far from impossible to come out the opposite way. Given what seems to me to be Congress’s intent to give people who are imprisoned significant incentives to behave with “exemplary compliance with institutional disciplinary regulations,” 18 U.S.C. § 3624(b)(1), and given the clear desirability of encouraging such behavior, both for the purposes of prison discipline and for what exemplary conduct might presage for behavior after release, it seems to me highly desirable to read the Good Conduct Time language as broadly as possible. We do owe deference, however, even if only under Skidmore. But I take this occasion to urge the BOP to reconsider its position and, after appropriate hearings, perhaps to issue a regulation coming out the opposite way from what we today approve. Such a regulation would, in all likelihood, be entitled to Chevron deference.