Lopez v. Terrell

being punished you’re knows to bribe perjury, to suborn

your efforts

witnesses, influence wit- to otherwise your

nesses, your perjury own and for

trial. the sentence is unrea- say that

We cannot

sonable.

Conclusion and sentences the convictions

We affirm Ten, vacate through

on Counts One sentences on Counts

convictions and Thirteen, and remand for en-

Twelve and corrected to reflect

try judgment of a rulings.

these LOPEZ, Petitioner-Appellee,

Frank TERRELL, Warden, Metropoli-

Duke Center, York, New

tan Correctional Norwood, Regional Director,

Joe Region, Federal Bureau of

Northeast

Prisons, Respondents-Appellants. 10-2079-pr.

Docket No. Appeals,

United States Court of Circuit.

Second

Argued: April 2011. July

Decided: 2011. En

Rehearing Rehearing Banc Nov.

Denied 2011.

HALL, Judge: Circuit Petitioner-Appellee Lopez Frank chal- lenges the manner which the Federal (“BOP”) Bureau of Prisons calculates Good (“GCT”) Conduct Time 3624(b). maintains he should be Lopez for the 94 months eligible to receive GCT custody prior in state and federal spent he which he sentenced in to the date on (in addition to his time in district court custody following sentencing), though even a prior those 94 months were credited to disagrees, state sentence. as- can accrue serting that GCT spent custody to the 38 months he after he was sentenced. therefore, appeal presents, ques-

This statutory interpretation: tion of whether 3624(b), provides “toward the inmate receive GCT prisoner’s up service of the days at the end of each to 54 prisoner’s imprisonment,” permits term of presentence the award of GCT for that, by an inmate under 18 U.S.C. served 3585(b), cannot be credited to the defen- federal sentence. The district court dant’s (Holwell, /.), agreeing Lopez, held imprisonment” Byars, United Michael J. Assistant means—and Torrance, (Benjamin H. Attorney States can accrue for—the that an inmate Attorney, on the States Assistant United offense, total time served for a federal Bharara, brief), States for Preet United sentencing, regard- before and after both Attorney for the Southern District of New whether the inmate’s less of York, Respondents-Appellants. for custody is credited to another sentence. It con- challenges ruling. The BOP (Roberto Finzi and W. Sussman Joshua §in an in- tends that as used brief), Paul, Weinstock, A. on the Robert is cotermi- mate’s “term LLP, Weiss, Rifkind, & Garrison Wharton his or her federal sentence nous with York, NY, Petitioner-Appellee. New for such defined under 18 U.S.C. only as to the or she is for GCT he NEWMAN, CALABRESI, Before: following incarceration the date period of HALL, Judges. Circuit any presen- as well as to that un- custody credited Judge concurs CALABRESI §der separate opinion. interpreta- that the BOP’s service of term of conclude time he has in official deten- persuasive

tion of 18 U.S.C. Co., prior tion to the date the sentence com- & under Skidmore Swift (1944), mences— 89 L.Ed. interpretation. to the (1) defer of the result offense for which judgment of the therefore REVERSE imposed; the sentence was or granting court Frank district (2) any charge as a result of other for petition § 2241 for writ of habeas U.S.C. which the defendant was arrested af- instructions to corpus and REMAND with ter the of commission the offense for dismiss the petition. imposed; the sentence was against that has not been credited an-

BACKGROUND other sentence. 3585(b), therefore, Id. Under Statutory I. The Framework Govern- may grant a “credit” against defendant his ing Good Conduct Time custody federal sentence for time served principally We are concerned here prior sentencing long district court so and interaction of two presentence custody as that “has not been first, The statutes. against credited another sentence.” GCT, governs part: provides 3585(b); U.S.C. see United States v. prisoner serving who is a term of [A] (2d Labeille-Soto, Cir. year than 1 imprisonment more other 1998) (“[A] right defendant has no to credit than a term of imprisonment for on his federal sentence for time that has life, prisoner’s duration of the re- been against prior credited his state sen- ceive credit toward the service tence.”). If a presentence defendant’s cus- prisoner’s beyond the time tody has been credited to another sen- served, up days to 54 at the end of tence, available, §no credit is but year prisoner’s each of the term of im- Sentencing provide Guidelines a func- prisonment, beginning at the end of the equivalent. tional Under the version of term, subject first to deter- case, applicable the Guidelines in this when that, mination the Bureau of Prisons sentencing a defendant with an undis- during year, prisoner has dis- charged imprisonment term of “that ha[s] played exemplary compliance with insti- fully been taken into account in the deter- tutional disciplinary regulations. mination of the offense level” for the de- 3624(b)(1). second, offense, fendant’s instant see U.S.S.G. 3585, titled, “Calculation of 5G1.3(b), a district court: imprisonment,” term of provides full: [Sjhould adjust the sentence for pe- (a) Commencement of sentence.—A sen- imprisonment already riod of served as imprisonment tence to a term of com- a result of the conduct taken ac- into mences on the date the defendant in determining guideline range count awaiting transporta- received if the instant offense the court deter- to, tion voluntarily or arrives to com- mines that will at, mence service the official not bé credited to the federal sentence facility detention at which the sentence by the Bureau of Prisons.... For clar- is to be served. ity, Judg- the court should note on the (b) prior custody. Credit for defen- ment in the Criminal Case Order —A given imposed departure dant shall be credit toward the the sentence is not a to the Lopez pled guilty charge range because guideline from the guide- September and was sentenced has been credited defendant 5G1.3(b) 19, 2008; date, of that Lopez [for under on June purposes line custody that will serving in state was still his state sentence. The served time] J.) (Holwell, federal sentence credited to the court determined at not be for a adjustment 94-month U.S.S.G. (2000); 501.3(b), cmt. n. 2 see presentence based on his custo- Gonzalez, 192 F.3d United States dy, prior quali- since his state conviction Cir.1999) (holding that because respect fied as relevant conduct with to his custody was cred- defendant’s (Because presen- Lopez’s federal offense. sentence, state no ited to his custody was to his credited state available; thus, U.S.S.G. credit was sentence, §no credit was avail- 5G1.3(b) Section applied). able.) imposed The court thus a 132- applies therefore where the Guidelines imprisonment month term of to run con- for the same punishment faces “defendant conviction, Lopez’s current with state prosecutions[,] in two criminal conduct for time served in “with credit state and that the defendant receives ensures [and] 11, custody [August] federal from 2000.” elimi- already time served to ‘credit’ for court clarified in The district its written States punishment.” nate double United Cir.2001) Fermin, 102, judgment imprisonment that the term of States, months, was 132 minus 94 months for time v. United (citing Witte 2199, served, 389, 132 L.Ed.2d which resulted an actual (1995)). imprisonment. term of 38-months After sentencing, Lopez was remanded to state History II. The Facts and Procedural custody remaining portion to serve the 11, 2000, was arrested August Lopez On undischarged state which he his Bronx, York, selling for crack in the New 31, completed on December 2008. He cocaine, charged by was the State then returned to federal to com- criminal sale of a con- New York with plete his federal sentence. degree. third Lo- trolled substance 2009, early Lopez discovered that the in November In guilty charge to that pez pled his release date as an indetermi- BOP had calculated and was sentenced to 22, 2011, March based on its determination of four and one-half to nine nate term 2004, only as to the In that he was for GOT years imprisonment. November following he his date of years four and three months 38 months served serving after Lopez in' district court. chal- custody, Lopez was transferred to in state lenged of habe- this calculation letter submit- custody pursuant to a writ federal BOP, April asserting ted to the corpus prosequendum, ad him 2005, court had sentenced to 132- was indicted Lopez on his federal con- conspiracy to months jury on one count grand viction, cocaine, eligible for for of 21 he should be GCT crack violation distribute 841(b)(1)(A). i.e., 812, 841(a)(1), entirety of that 132-month §§ term — 11, 2000, on- August in- arrest on specified act in the federal from his only overt 27, 2009, In a letter dated March August sale ward. Lopez’s dictment was Sonya General Counsel same offense BOP Assistant of crack cocaine—the that based on the explained convicted in Cole he had earlier been 3585(a), of 18 U.S.C. court. state could com- in that date a federal sentence earliest imposition, “encompass[ed] the date of which statute all of the time a mence was meant, offense, purposes calculating Lopez’s prisoner serves for the federal GCT, date, imprison- that the relevant term of whether before or after the sentence and, date, months. Dissatisfied with ment was 38 if before the sentence whether response, Lopez complaint filed a this credited under 18 U.S.C. or through Remedy Administrative U.S.S.G. 5G1.3.” The court thus ordered (“ARP”), ini- Program which was denied compute Lopez’s begin- the BOP to warden, appeal and on tially by ning from his initial date of incarceration Regional Office. a written and, August factoring after July the BOP Re- decision dated his disciplinary record while state and explained Director that the gional custody, this resulted in the ad- interpreted permit by ap- vancement of release date “only actually the award of GCT for time proximately eight Lopez months.1 im- served rather than on the sentence subsequently prison, released from but the posed!,]” which meant that was eli- has the right, pending asserted only for the gible for 38 months appeal, to him re-incarcerate for the re- following the date on which he was sen- maining period of his sentence which the court, tenced and not for his 94 agency asserts he owes.2 custody. presentence months of The Re- gional Director noted that the BOP had DISCUSSION 3624(b)

promulgated interpretation § its § under 28 C.F.R. 523.20. We review de novo a district court’s Thereafter, ruling petition. § on a 28 2241 Lopez filed a See 118, § 2241 v. petition Kirkpatrick, for a writ of Gueits 612 F.3d 122 corpus habeas (2d Cir.2010). challenging interpretation the BOP’s The asserts that 3624(b); § granted the district court district court erred not deferring to its petition in March interpretation 3624(b), § 2010. The court held of 18 U.S.C. that interpretation agency was un- which the maintains is consistent Skidmore, persuasive 134, with Lopez law. coun- 161, and was not entitled to defer- ters that the BOP’s construction of the ence because it persuasive, conflicted with 28 C.F.R. statute is not urges us to (another § agency gov- 523.17 affirm regulation judgment below for substantial- erning presentence custody) ly and did not same reasons identified the dis- rely on particular agency expertise. trict court granting its decision his 3624(b) instance, Construing petition. the first 2241 We determine first the therefore, the district court concluded that appropriate level deference to afford the GCT, purposes of calculating agency’s interpretation, and we then ad- rejected 1. The district Lopez court also the BOP’s 2. That has been released from argument properly that had failed to jurisdiction; does not divest us of he is still n custody” exhaust his administrative remedies. Be- purposes "in of 28 U.S.C. 2241 pursue argument cause the BOP does not subject because he remains to the conditions appeal, it is deemed abandoned. See Miller, supervised of his release. See Dixon v. Kooi, (2d Sledge v. 564 F.3d 106 n. 1 Cir.2002). (2d 293 F.3d 78 Cir.2009) (issues appeal not raised on are abandoned) (citing City deemed LoSacco v. Middletown, (2d Cir.1995)). 71 F.3d defined under that sentence as challenges to specific dress 3585(a), such that GCT can be interpretation. custody “credit- awarded for Agency I. Deference 3585(b), presen- but not for ed” under charged “adjusted” is the Because 5G1.3(b). whether implementing of these inter- Because both to the should defer extent we what facially are consistent with the pretations turns first on wheth interpretation BOP’s statute, and because the language ambiguous. See Sash the statute is er offers no clear definition for statute itself Cir.2005) Zenk, 132, 135 imprisonment,” we have no diffi- “term of (“Chevron us to defer to the instructs culty concluding ambigu- is am if the statute is Indeed, ous. we have reached this Chevron, U.S.A., Inc. v. (citing biguous.”) conclusion, in a different context. albeit Council, Inc., 467 U.S. Res. Natural (“We Def. Sash, join our 837, 842-43, 104 81 L.Ed.2d 694 S.Ct. holding circuits in is sister (1984)). with the stat- analysis begins Our Thomas, ambiguous[.]”);3 Barber v. cf. utory language. — -, S.Ct. (2010) (observing L.Ed.2d A. Chevron Deference imprison- “uses the same ‘term of the definition of parties contest ways”). ment’ in two different as used ambiguous, Because may receive credit prisoner] phrase, “[a Chevron, must, that we BOP asserts prisoner’s of the sen toward the service to its of the statute as defer of days ... to 54 at the end up of 523.20, § which the set forth 28 C.F.R. impris term year prisoner’s each of the of implementing regu identifies as its agency 3624(b) (empha § [.]” onment generally States v. lation. See United (and added). the district Lopez asserts sis 218, 226-27, 121 Corp., Mead 533 U.S. imprisonment” that “term of agreed) court (“[A]d (2001) 2164, 292 150 L.Ed.2d S.Ct. inmate the total amount of time an means particular a implementation ministrative offense, a must serve statutory qualifies for Chevron provision regard and after both before Congress appears when it deference the inmate receives less of whether authority agency general to the delegated § or an under 18 U.S.C. “credit” law, 5G1.3(b). carrying make rules the force ly § “adjustment” under U.S.S.G. claim agency interpretation that the impris counters that a “term promulgated the ex ing an inmate’s deference was is coterminous with onment” interpretation, which had erence to the BOP’s concerned whether 18 3. Sash 3624(b)’s provision that an inmate re- promulgated been under 28 C.F.R. 523.20. days Barber, end of "up GCT] 54 at the [of ceive Supreme Court See id. at 136. In imprison- year prisoner’s term of each of the with Sash—that the BOP's held'—consistent that the inmate should accrue ment” meant defer- interpretation was entitled to Chevron served,” days year "for each those 54 Barber, S.Ct. at 2509. Neither ence. See 130 BOP, urged by year or "for each appeal, control the instant Sash nor Barber urged by petition- imposed,” as sentence however, precise question at "the Sash, (emphasis 428 F.3d at 134 er. See 842, Chevron, issue,” U.S. at 104 S.Ct. 467 circuits, omitted). Joining we held our sister 2778, distinguishable from in those cases ambiguous in Sash the one here. granted respect Chevron def- to this issue authority.”); by accord De La its own ercise of that announcement the Federal Educ., 71, Dep’t Register, published Mota v. F.3d regula- the time the (2d Cir.2005). regulation, titled There, That promulgated. tion was agency Time,” provides in “Good Conduct relevant 523.20, issuing § made clear that it was serving inmates part that “[f]or purpose defining not for the ..., days award ... 54 the Bureau will the context of calculating credit for each served[.]” C.F.R. 3624(b), GCT under 18 U.S.C. but 523.20(c)(1). The BOP contends that the limited purpose and unrelated of im- promulgated 523.20 was to reflect the plementing provisions certain of the Vio- agency’s administering “approach lent Crime Control and Law Enforcement providing] prior-custo- ‘sentence’ ... [as] 1994, 103-322, Act of Pub.L. No. 108 Stat. by and, dy permitted credit where (1994), 1828-29 and the Prison Liti- 5G1.3(b) cases, in section to administer the gation Reform Act of Pub.L. No. adjusted imposed by sentence as it was 1321, 1321-66, 110 Stat. 1321-76 sentencing court.” It further asserts that (1995), keyed accrual of GCT to an helpfully “eliminates 523.20 ambi- th[e] satisfactory progress inmate’s toward guity by [in ] eliminat- earning a General Educational Develop- ing imprisonment,’ ‘term of (“GED”) ment credential. See Good Con- casting good the BOP’s conduct rule exclu- Time, Fed.Reg. duct (Sept. ” sively in terms of the ‘sentence.’ 1997). by We are not convinced reject Because we the BOP’s reliance on arguments. Although “the framework of 28 C.F.R. 523.20 basis for its deference set forth in Chevron construction of 18 U.S.C. applies] agency to an interpretation con- agency interpretation at issue here is con- regulation,” tained in a Christensen v. Sonya tained Cole’s March 2009 Cnty., Harris July letter and the 2009 ARP Decision (2000), 146 L.Ed.2d 621 where the Regional Director. Cole’s letter regulation identified does is not entitled to Chevron deference. See speak statutory ambiguity not to the at Christensen, 587-88, 529 at U.S. 120 S.Ct. issue, inappropriate, Chevron deference is (holding 1655 agency interpretations see id. at 120 (declining S.Ct. 1655 opinion contained informal letters are to agency afford Chevron deference to reg- deference); not entitled to Chevron accord ulation that did “not address” disposi- C.I.R., (2d 83, Nathel v. 615 F.3d 93 Cir. case). tive issue in that Such is the case 2010). The ARP presents Decision a clos- Contrary assertion, here. agency’s to the question. er Christensen “made clear that § provides guidance 523.20 little to inter- ‘interpretations in policy contained state- pret “term imprisonment” of as used 18 ments, agency manuals and enforcement 3624(b) indeed, § U.S.C. regulation — guidelines ... do not warrant does not Chevron even mention that phrase. And ” Mota, style while deference.’ De La 412 urges F.3d at the word “sen- Christensen, 587, 79 (quoting tence” in 529 at 523.20 clarifies that “term U.S. of 1655). By 120 comparison, interpre- refer to an S.Ct. must inmate’s federal agency lawmaking— sentence as defined tations derived from under 18 3585(a), U.S.C. this which would fall unfairly construction within ambit of Chev- (and strains the regulation’s plain sparse) typically “pronouncements ron —are those language. importantly, agency’s Most binding parties [which on third are] interpretation §of [originate] 523.20 is contradicted and ... in a notice-and-com-

183 Mead, prisoner’s sentence”. (citing 533 service Id. at 79 fashion.” ment added). 3624(b)(1) 2164). (emphasis conclude U.S.C. 218, We 121 S.Ct. imprisonment,” unlike “term of And of 18 U.S.C. interpretation that under agency urges ARP July in the set forth accepted defini- “sentence” has clear and category. the former falls within Decision contends, It there- tion under federal law. of a notice- clearly product not the It is fore, links accrual that because originat- since it procedure, and-comment sentence, and be- prisoner’s to a complaint, of GCT administrative Lopez’s ed from is de- cause a defendant’s federal sentence other than binding any party nor is it 3585, should that latter statute decline to fined therefore Lopez himself. We Applying is calculated. to the BOP’s inform how GCT deference afford Chevron here, the BOP calculat- interpretation interpretation of 18 solely based on the 38 Lopez’s

ed B. Skidmore he served follow- imprisonment months of Deference ing the date of because is not deference Where Chevron 3585(a), of con- imprisonment this term defer to an we will appropriate, Lopez’s federal sentence. The stituted it “only to the extent that excluded from its GCT calculation agency Catskill persuade.” power has the imprisonment Lopez the 94 months Dev., Corp., Entm’t v. Park Place L.L.C. custody prior served state and (2d Cir.2008) 115, (citing reasoning that Christensen, at 120 S.Ct. 529 U.S. those months 1655). less deferential Under Skidmore’s part could not form standard, afforded an weight “ they had been thorough ‘on the interpretation depends credited to his state sentence. consideration, the validi evident its ness consistency reasoning, its ty of its find the BOP’s construction all pronouncements, and later earlier agen- persuasive. The give power per it factors which those aligns with tradi- cy’s approach contextual ” suade, Natu lacking power to control.’ if statutory interpretation. tional canons of F.A.A., Council, Inc. v. ral Res. Def. Educ., Bd. See Frank G. v. Cir.2009) (quoting Skid- F.3d (2d Cir.2006) (observing that 370-71 161) (alter more, statute, ambiguity to resolve omit Res. Council ation Natural Def. the broader con- upon court should “focus Skidmore, ted). we “construe applying (internal text”) citations quotations and instance, giving in the first the statute Barber, omitted); at see also 130 S.Ct. agency’s] to [the effect the context of 18 (relying 2506-07 Estate persuasive.” find it the extent we 3624(b) meaning to determine the (2d Leavitt, 98, 105 545 F.3d Landers v. A defen- imprisonment”). of “term of Cir.2008). “sentence” is well-defined dant’s incarceration period law the meaning Because the date the defen- unclear, that “commences on the BOP main is imprisonment” custody awaiting in trans- is received be understood dant that the must tains to, voluntarily to com- or arrives portation as a whole the context of the statute within at, official of sentence the word mence service and, in reference to particular, in the sentence is facility at which “a detention preceding phrase, in the “sentence” 3585(a); see toward the to be served.” receive credit prisoner 184 329, Luna-Reynoso, 333, 1351,

United States v. 258 F.3d 503 U.S. 112 S.Ct. 117 (2d Cir.2001) 111, (1992) (relying 116-17 on L.Ed.2d 593 (“Congress has indicat 3585(a) to define defendant’s federal ed that computation of the credit 18 [under Thomas, sentence); Reynolds v. accord must occur ] after the (9th Cir.2010) 1144, (same); F.3d 1149 603 begins sentence.”); defendant his accord 907, Hayes, v. 535 F.3d 909- United States Waters, 86, United States v. (8th Cir.2008) (same); Moreno-Cebrero Cir.1996) Wilson, 333, (citing 503 U.S. at (7th Gonzales, 395, v. Cir. 1351); Wilson, 112 S.Ct. see also 503 U.S. 2007) (same); Wells, United States v. 335, (“After 112 S.Ct. 1351 a district (6th Cir.2007) (same). 640, F.3d Be- offender, court sentences a federal the At cause 3624 makes clear that GCT is General, torney through BOP, has the earned “toward the service of the prison- responsibility for administering the sen sentence,” 3624(b)(1), er’s tence.”); Luna-Reynoso, 258 F.3d at 117 reading most natural of the statute is that (“[T]he granted credit to be a defendant eligible defendant is for GCT as to for time during which he the “term of which consti- was held prior to sen tutes the defendant’s federal sentence as tencing by is administered the Bureau of by which, defined construction Prisons.”). §a Because credit is significantly, preserves a consistent defini- awarded after the credit has tion of “sentence” in both and no effect on the sentence imposed by the 3585(a). Co., Alloyd Cf. Gustafson court; simply advances S.Ct. 131 the ultimate date of release subtracting (1995) (“[I]dentical L.Ed.2d 1 words used from that date of time the parts different of the same Act are spent defendant in presentence custody. intended to meaning.”); have same Go- —States, Pepper U.S.-, v. United Cf. States, zlonr-Peretz v. United 1229, 1248 14, 179 131 S.Ct. n. L.Ed.2d 196 112 L.Ed.2d 919 (“An (2011) award good time credit (1991) (noting that is not “[i]t uncommon does not length [BOP] affect the of a other, to refer to legislative related enact- sentence[.]”). court-imposed When the ments when interpreting specialized statu- GCT, therefore, BOP calculates it will in terms,” tory Congress since is presumed clude the time in custody following “legislated have with reference to” those the date as well peri terms). presentence od of custody credited under In practice, ordinary this means since periods, both in combina course that a defendant is for GCT tion, constitute the defendant’s federal as to each served on the sentence sentence. imposed by the district court. Where an contrast, In the second inmate scenario arises custody prior is to being sen tenced, when a defendant is convicted sen- possible two and scenarios arise. first, court, and, if a tenced state serving defendant while is arrested for a federal offense his state placed federally indicted custody, the BOP sentenced in court typically grant will district for an offense defendant a for which the against credit his sentence relevant conduct includes his under prior § 18 U.S.C. period, for that state conviction. Under these cir- (which but agency only empowered is analogous do so cumstances are to the case), after the imposed district court has its instant pre- defendant’s Wilson, sentence. See United v. States sentence has “been credit- 2011) (“Because prisoner can receive namely, the another against ed sentence”— agency is only GCT credit on time served on his state sentence —the defendant’s crediting against sentence, that time from and his federal sentence federal prohibited 3585(b); § sentence. not ‘commence’ after he his federal does until has Gonzalez, (holding that at 354 court, 192 F.3d see Schleining been sentenced federal custody credited to a defen- for the 21 eligible is not for GCT credit credited to cannot be state sentence dant’s custody serving months he state — sentence). To en- federal a defendant’s imposition a state sentence—before of his not “face[] the defendant does sure that sentence.”). disagree, We there- federal criminal conduct for the same punishment fore, ruling the district court’s to the with Fermín, prosecutions,” in two contrary. 109, however, Sentencing Guidelines rejected approach The lower court this adjust court instruct the district principally because it concluded that sentence based on the defendant’s construction of 18 U.S.C. sentence, on his state already served time § was inconsistent with 28 C.F.R. custody cannot be period since 523.17(i), § per- which the court viewed as § see credited mitting periods the award of GCT for (1999). 5G1.3(b), cmt. n. U.S.S.G. preceding detention the defendant’s feder- GCT, therefore, the BOP calculates When sentencing al date. This was incorrect. incarcera- count it will 523.17(i), provides that Section “[a] following tion the date pretrial may detainee be recom- impris- court because that term of credit,” good mended for time falls under the defendant’s federal onment constitutes B, Subpart Part 523 of Title 28 of the Code Labeille-Soto, 163 F.3d at See sentence. Regulations “Extra of Federal (under 3585(a), —titled pursuant to which Bu- “[t]he Good prior cannot commence to the Time”— good reau of Prisons awards extra time imposed). date on which it is performing exceptionally credit for merito- any presentence will not award GCT service, custody adjusted performing rious or for duties of time in not outstanding importance employment because that time does con- or for of the defendant’s federal sen- part industry camp.” stitute or 28 C.F.R. 523.10(a). to the having already been credited court relied While the district 523.17(i) state sentence. See 18 U.S.C. defendant’s contrary to the to hold— Gonzalez, 3585(b); 192 F.3d at 354. agency’s interpretation of —that pre- in fact award GCT for the BOP did persuaded by reasoning. are part not constitute trial detention did statutory language Although express no B, Subpart of an inmate’s federal be read in tandem requires that “inmates sen- Part 523 makes clear the above demonstrates that Sentencing Reform Act tenced under the agency’s approach valid and con- provisions for offenses committed on or statute, vincing construction of the and is 1,1987 after November are not sentencing law. consistent with federal time, consid- good ... extra but be Skidmore, 323 U.S. at days good for a maximum of 54 Indeed, ered that the Ninth Cir- 161. we note (see per conduct time credit conclu- recently cuit has reached this same 523.10(b) (em- 3624(b)).” 28 C.F.R. substantially on facts identical sion added). Indeed, Supreme as the Schleining phasis in this case. See those (9th Barber, Thomas, with the enact- 1247-48 Court observed Cir. Sentencing agency’s Lopez spent nearly Reform Act of construction. ment Stat.1987, years custody prior four in No. to his Pub.L. court, sentencing in- in sought to achieve both for which he “Congress GCT, uniformity not greater and did receive and after creased spent custody, he honesty by ‘mak[ing] all sentences basical- six months state ” determinate,’ at (quot- 130 S.Ct. which he did receive GCT. Were we to ly States, rationale, credit the the ing Mistretta v. United 488 U.S. inverse true, question 102 L.Ed.2d 714 should be since there is little 109 S.Ct. (1989)), that “the sentence that administrative result burden is significantly would be the if an inmate judge imposed sentence reduced is served, actually custody. the offender with a sole good statutory exception time credits only This is not the relevant consider- 3624(b)],” (citing id. [under ation, Although may however. it be more 647) Mistretta, difficult for the BOP to monitor an in- (emphasis original). Accordingly, be- mate’s conduct when he or she inis state cause was sentenced under the Sen- custody, if agency has advance knowl- Act, tencing eligible only Reform he was that edge custody part constitutes such 3624(b). §by for GCT as defined Section the inmate’s federal there is a 523.17(Z) of Title 28 of the Code of Fed- Here, clear incentive for it to do so. be- Regulations, exclusively gov- eral cause the district court ordered that Lo- time,” good erns “extra inapplicable was to pez’s federal run concurrently that calculation.4 undischarged prison term, with his state said, recognize That we a certain tension the BOP knew from the date of sentencing between some of the institutional Lopez spent concerns that time in state agency identifies and its that point part construction from forward formed of his 3624(b); Thus, §of this does not make agency its inter- federal sentence. had pretation unpersuasive, however. One of incentive to monitor behavior dur- ing rationales advanced the six he spent months state custo- dy that to award GCT for following sentencing custo- it because dy adjusted to another sentence under aware that during he was for GCT impose would an un- period. Schleining, that See also burden, due administrative it (observing limiting at 1248 the award compel would the BOP to monitor and of GCT to an inmate’s federal sentence disciplinary 3585(a) assess only records from institu- “not language tracks the 3624(b)(1); tions outside glance, its control. At first practical it also makes this reasoning appears to undermine puts sense” because it “the BOP on notice noted, however, face, 523.17(1) 4. As the previously district court we applies and on its Payton observed in that under "28 C.F.R. Regardless, to the latter. to the extent 523.17(1), pretrial detainees be recom- that, Payton suggesting can be read as based good mended for time credit for the time 523.17(1), pre- the BOP awards GCT to spent pretrial custody.” United States v. detainees, Barber, following trial it is clear (2d Cir.1998). Payton, 159 F.3d statutory exception the sole to the sen- Payton support district court relied on its imposed by the district court is the regulation, conclusion that award of GCT as defined under 18 U.S.C. pretrial awards GCT for time Barber, 3624(b). S.Ct. at 2505. detention, despite imposed by the limitations time, therefore, 523.17(1), good Extra Payton did not distin- time,” guish good bearing between GCT and "extra has no on the calculation of GCT. uniformly construes to house the either responsibility of its as coterminous imprisonment” “term of his continued or to monitor itself prisoner federal sentence. That with a defendant’s By con- prison”). state incarceration results in the award of GCT this definition monitor trast, to the BOP had no incentive custody a defendant where behavior dur- Lopez’s contemporaneously 3585(b) credit, not receives a but where custody in state time he ing the 5G1.3(b) a defendant receives a U.S.S.G. agen- sentencing. require To prior to adjustment, agen- does not mean that the disci- and assess cy investigate to cy’s construction of 18 U.S.C. time—well after record for plinary meaning “term of unfairly strains the impose passed had period —-would Rather, burden, imprisonment.” this distinction avoid- administrative significant simply statutory from the defini- derives justify, part, which does ance of sentence, a federal which excludes tion of calculating to GCT. approach presentence custody credited another contrary rule (noting that this at 1249 id. See 18 U.S.C. sentence.5 dif- pose significant administrative “would BOP, would be ficulties for the Second, Lopez agen- maintains that the prisoners credit to to award GCT forced cy’s interpretation conflicts with our deci- might of time when the BOP for a Rivers, sion United States exis- prisoner’s unaware of the have been Cir.2003). Rivers, the defen- unable to monitor or behavior and pled guilty single to a count of distri- dant prison which prisoner or the state of crack cocaine in violation of 21 bution housed”). he was 841(A)(1), based on which he was U.S.C. to a term of required to “‘be sentenced ” Lopez’s Arguments II. years.’ than not less (quoting inter Id. at 120-21 Lopez challenges the BOP’s 841(b)(1)(B)). At sentencing, on three the dis- of 18 U.S.C. pretation trict court first determined that a 64- He first contends that principal grounds. appropriate, which fell meanings of month sentence applies two different to 71-month Sen- depending applicable on within the imprisonment” “term of and then sua tencing range, a credit un Guidelines a defendant receives whether adjust- sponte granted Rivers 18-month adjustment or an der 5G1.3(b). former, based on In the he ment under U.S.S.G. already in state time he had served that the BOP construes asserts offense, which resulted pri- drug on a related imprisonment” to include time served latter, remaining he sentence of 46 months. See or argued at 121. The Government agency restricts “term of id. asserts that the appeal served the term 841(b)(1)(B) mandated a minimum five- reject argu sentencing. after discussed, the district court lacked the supra see ment. As respect (presentence to a re- Lopez’s argument in this at 354 credited 5. Fatal to part appreciate fully accepted sentence cannot form lated state his failure to Labeille-Soto, sentence); While he defendant’s definition of federal sentence. (a federal sentence cannot 163 F.3d at 98 maintains that he should receive based which it is prior to the date on originally announced commence on the 132-month term Indeed, hearing, imposed). Lopez concedes that his court at his the district begin prior to when he Lopez's could not federal sen- it is incontrovertible that Gonzalez, in district court. was sentenced 38 months. See tence was 5G1.3(b) § to ad- which mandated that a defendant “shall be authority under U.S.S.G. than” imprisoned not less a certain statutory below this just Rivers’s sentence years. (citing, e.g., number of Id. United rejected id. at 122. We threshold. See (9th Drake, 1438, 1440-41 States F.3d an holding that while ad- argument, Cir.1995)). response In to the Govern- 5G1.3(b) § was neither a justment under claim that ment’s those decisions were dis- departure Sentencing from the Guidelines tinguishable, there was no reason we held the minimum sen- against nor a credit apply to a different rule for 21 U.S.C. tence, § despite the fact that statute used adjustment is similar effect of an [T]he “im- phrase opposed the “sentenced” as sense, In that to that of a credit. the prisoned,” illogical since it would be by adjustment proscribed no less the is adjustments permit for some criminal stat- pris- minimum than where the statutory utes but disallow them as to others. See by the BOP for time oner is credited reasoning id. at 122-23. This inapplica- is long served. So as the total Rivers, ble to this case. there is no Unlike incarceration, adjust- period of after the logical analogue here between 18 U.S.C. ment, equal greater to or than the § governs which the BOP’s adminis- minimum, statutory statutory the dictate GCT, § tration of and U.S.C. purpose ac- has been observed and its appropriate punishment concerns the for a Here, complished. Rivers was sen- alone, criminal that offense. On basis we aggregate period to an tenced why preclude see no reason Rivers should months, above the minimum sentence by the distinction drawn the be- 841(b)(1)(B). by § mandated U.S.C. 5G1.3(b) § pur- tween day, At the resulting the end of poses calculating GCT. See also Schlein- adjusted sentence the district court im- ing, (holding 642 F.3d at 1248-49 totality posed for the of the conduct Drake, in which the Ninth amounts the sentence intended functionally Circuit announced a rule anal- statute. Rivers, ogous to our holding inap- (internal omitted). Id. at 122 citations Lo- plicable to that court’s determination of pez points requiring that a to Rivers 3585(a) relationship between “credit” and a U.S.C. U.S.S.G. 3624(b)). any event, point is not 5G1.3(b) “adjustment” be treated as that a “credit” and a similar, functionally barring thus the BOP “adjustment” one, are similar. No includ- awarding from GCT as to the former but BOP, ing reasonably dispute could disagree. not as to the latter. We respect with to determining length of a

Although we held in Rivers ap- term for a federal offense that 5G1.3(b) adjustment should be plication of either of these achieves the similarly treated to a 18 U.S.C. same functional result. What is relevant credit, specifically we did so the context here—and what was not at issue in Riv- of interpreting “sentenced to a “adjustment” ers—is how a “credit” and an term of in 21 as used differ respect to the administration of 841(b)(1)(B), markedly a statute a federal sentence. As the above makes different from 18 clear, persuasively BOP has shown Rivers, so, doing 329 F.3d at 122. In we GCT, purposes of calculating relied on decisions our sister circuits whether a defendant receives a “credit” or construing criminal containing “adjustment” statutes for time presen- analogous statutory-minimum provisions, significant consequences has legisla- reduction under new for a sentence part form does not the latter since prior to the he was sentenced tion because federal sentence. defendant’s statute); Lab- enactment of relevant a number advances Finally, Lopez eille-Soto, (holding that if a 163 F.3d at 99 validity of challenges to the broader complete prior a happens to defendant agen- that the reasoning, asserting on which he before the date state sentence makes accru- of construction cy’s court, in district the court is sentenced fortuity the contingent on al of GCT order that his federal sentence may not date, and sentencing defendant’s concurrently prison with his state run a credit distinction between the agency’s 5G1.3). Lo- under U.S.S.G. While term in unwarranted adjustment results and an alleges agency’s interpretation that the pez similarly situ- disparities between sentence him of a substantial deprived §of ated defendants. award, if sen- Lopez even had been GCT theory, in if Lo- acknowledge that day pled guilty on the he tenced —and sentencing proceeded had pez’s federal all other facts remain the assuming adjusted time swiftly, the amount of more most, eligi- have been he would same—at 5G1.3(b) court under by the district days of approximately 40 additional ble shorter given smaller the might have been Although way we no discount GCT.6 custody, which presentence significance of this additional longer in a feder- have resulted turn could time, po- that this persuaded are not we imprison- longer “term of al sentence —a interpre- result renders the BOP’s tential award. larger potential GCT ment”—and a tation absurd. that this contention reject Lopez’s But we reject Lopez’s also assertion that for- We the accrual of GCT makes possibility similarly situated defendants tuitous, statutory A BOP treats arbitrary. let alone justifica- differently any without rational if founder on this basis interpretation can length imprison- the overall absurd, Doll tion. While Troll Co. v. Uneeda it is see (“[I]t (2d Cir.2007) court for a by ordered a district Co., ment approxi- federal offense will be particular statutory con- principle an elemental regardless same of whether mately must ambiguous statute struction results.”), §a credit or receives absurd defendant to avoid be construed 5G1.3(b) adjustment, the federal sen- by advanced the construction is different imposed either case threshold. far short of this agency falls circumstance, the de- the latter circumstances are numerous There already custody has presentence fendant’s the date of a defendant’s separate to a state offense. been credited length ultimate upon the will bear See, is too fine a distinction Lopez suggests this e.g., States imposed. United Cir.2010) differently among awarding Diaz, justify a credit rather who receive eligible not defendants (holding that a defendant was above, of 47 months—nine Lopez pled total federal sentence supra at noted see 6. As actually he been guilty September longer 2007. Had im- on than the sentence months date, opposed on June on that Lopez sentenced posed. Under 18 could have award- the district court approximately been would have adjustment under ed an 85-month months. days of GCTfor those nine additional based on Barber, generally offense, related state served for his (discussing calculated for how GCT is from the announced subtracted which once year). than one periods less term, have resulted would 132-month BOP). adjustment, also, but for reasons al- than an ments made I am discussed, however, ready persuaded quite we are sympathetic to the con- interpre- decision to base its cerns opinion inherent of the district precise tation of defini- court in this case. opinion As the of our demonstrates, logically tion of a federal sentence follows Court it would be far from impossible from a distinction codified Con- to come out opposite way. 3585. what gress Congress’s Given seems to me to be event, has Supreme recognized give Court intent to who people imprisoned are policy that while seem unwise significant “[i]t incentives to behave with “ex- differently they treat ... when emplary compliance defendants with institutional dis- fact,” similarly situated in ciplinary are Reno v. regulations,” Koray, 3624(b)(1), given the clear desirabili- (1995), this is not sufficient to behavior, L.Ed.2d ty encouraging such both for undermine the BOP’s construction of a purposes prison discipline and for legal predomi- statute where a distinction exemplary what conduct might presage for nates, 515 U.S. S.Ct. 2021 release, behavior after it seems to me cf. that, (holding while an inmate confined highly desirable to read the Good Conduct community having treatment center after language broadly Time possible. been “detained” and committed to the deference, however, do owe if only even custody, BOP’s and an inmate “released” But I Skidmore. take this occasion to such a center on bail were similarly urge the BOP to position reconsider its situated, fact, positions their relative and, appropriate after hearings, perhaps to legally were distinct because the former regulation issue a coming opposite out the control, subject remained to BOP and thus way today from what approve. we Such a for a credit under 18 U.S.C. would, regulation likelihood, in all be enti- 3585(b)). tled Chevron deference.

CONCLUSION reasons, foregoing

For the per- we are by

suaded interpretation of 18 which limits the award of GCT to the term of consti- Gregory GOODRICH, Plaintiff- tuting a defendant’s federal sentence as Appellant, 3585; defined under 18 U.S.C. accord- ingly, we defer to that un- LONG RAIL ISLAND ROAD COMPA Skidmore, der 161. S.Ct. NY, Russell, Donald and John Doe We therefore REVERSE the judgment “A,” Being Fictitious, Name True of the district court and REMAND with Unknown, Name Defendants-Appel instructions to dismiss lees. petition. Docket No. 10-2809-cv. CALABRESI, Judge, Circuit United States Appeals, Court of concurring: Second Circuit. I believe the conclusion reached Submitted: March 2011. is, as demonstrated this Court’s Aug. Decided: opinion, 2011. quite I am sustainable. therefore concurring in that opinion (including full

in its skepticism about some of argu-

Case Details

Case Name: Lopez v. Terrell

Court Name: Court of Appeals for the Second Circuit

Date Published: Jul 13, 2011

Citation: 654 F.3d 176

Docket Number: 19-650

Court Abbreviation: 2d Cir.