Rоbert Scott MORELAND, a/k/a Robert S. Moreland, a/k/a “Bobby“, Appellant, v. UNITED STATES of America, Appellee.
No. 90-5375MN.
United States Court of Appeals, Eighth Circuit.
June 30, 1992.
968 F.2d 655
Submitted Jan. 6, 1992.
But the Act contains no such command. Instead, plaintiffs contend that the Common Rule violates general congressional policies favoring “full and open competition” in federal procurement, found in
The judgment of the district court is affirmed.
Joseph D. Wilson, Washington, D.C., argued (Jerome G. Arnold, Lynn A. Zentner and Matthew B. Stege, Minneapolis, Minn., on the brief), for appellee.
Before LAY,* Chief Judge, HEANEY, Senior Circuit Judge, McMILLIAN, RICHARD S. ARNOLD,** JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, and HANSEN, Circuit Judges, En Banc.
MAGILL, Circuit Judge, with whom FAGG, BOWMAN, WOLLMAN, BEAM, and HANSEN, Circuit Judges, join.
The issue in this case is whether a presentence defendant held in a halfway house should receive credit, postconviction, on his sentence under
I.
The background facts of this case are more fully set out in the panel opinion, Moreland, 932 F.2d 690, and we will not repeat them here except as necessary to address the arguments on appeal.
Moreland was arrested on July 28, 1989, on two counts of bank fraud, in violation of
A. “Official Detention”
Moreland‘s first argument hinges on the definition of “official detention” under
The term “official detention” is ambiguous. Congress did not provide a clear definition in either the statute or in its legislative history. See
In Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Supreme Court held that if a statute is “silent or ambiguous with respect to the specific issue,” and if “the [administering] agency‘s answer is based on a permissible construction of the statute,” we must defer to the agency‘s interpretation. The BOP, as administering agency, resolved this ambiguity in its Program Statement on Sentence Computation, Jail Time Credit Under
Time spent in residence in a residential community center (or a community based program located in a Metropolitan Correctional Center or jail) ... as a condition of bail or bond ... is not creditable as jail time since the degree of restraint provided by residence in a community center is not sufficient restraint to constitute custody within the meaning or intent of 18 USC 3568.... However, time spent in a jail-type facility (not including a community based program located in a Metropolitan Correctional Center or jail) as a condition of bail or bond is creditable as jail time because of the greater degree of restraint.
BOP Program Statеment 5880.24(5)(b)(5) (emphasis in original). We believe this is both a reasonable and a permissible construction of
First, the BOP makes a clear distinction between residential community centers and jail-type facilities based on their respective degrees of restraint. It explicitly grants sentencing credit when a presentence defendant is placed under a great degree of restraint. Thus, it is clear that the BOP has considered this issue and has made a reasoned determination.
Second, the great weight of the legal authority that has addressed this issue supports the conclusion that “official detention” does not include presentence residence in a halfway house. In Ramsey v. Brennan, 878 F.2d 995 (7th Cir.1989) (interpreting
In United States v. Woods, 888 F.2d 653 (10th Cir.1989) (interpreting
The Fourth Circuit, following Woods, found that “official detention” requires full physical incarceration. United States v. Insley, 927 F.2d 185, 186 (4th Cir.1991); see also United States v. Zaсkular, 945 F.2d 423, 424-25 (1st Cir.1991) (“official detention” requires incarceration as a precondition to credit); Mieles v. United States, 895 F.2d 887, 888 (2d Cir.1990) (“jail-time credit under section 3568 requires physical confinement“); United States v. Smith, 869 F.2d 835, 837 (5th Cir.1989) (“custody” under
The Ninth Circuit‘s interpretation of the BOP Program Statement is incorrect. The Statement clearly says that “time spent in a jail-type facility (not including a community based program located in a Metropolitan Correctional Center or jail) as a condition of bail or bond is creditable as jail time because of the greater degree of restraint.” BOP Program Statement 5880.24(5)(b)(5) (emphasis in original). This provision makes allowance for “conditions approaching those of incarceration” because it takes into account both the type of facility and the amount of restraint imposed. Thus, the BOP interpretation actually answers the Ninth Circuit‘s concerns. Second, the fact that the great weight of legal authority has decided that “custody” оr “official detention” require physical incarceration indicates that this interpretation is reasonable. Therefore, we believe that the Ninth Circuit incorrectly declined to defer to the BOP interpretation as it was required to do under Chevron.7
Third, other relevant statutes indicate that Moreland was not in detention when he resided at RSCTC, but rather was granted a conditional release. Presentence defendants who are permitted to reside in a halfway house are not in detention under the Release and Detention Pending Judicial Proceedings chapter of the U.S.Code.
Moreland also argues that BOP‘s denial of sentence credit for his presentence detention in RSCTC violated the equal protection clause because other prisoners received credit for their time at RSCTC. Presentence defendants are not a suspect class. Therefore, we review Moreland‘s equal protection argument under a rational basis standard. See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439-41, 105 S.Ct. 3249, 3254-55, 87 L.Ed.2d 313 (1985). Under this standard of review, Moreland prevails if (1) persons who are similarly situated are treated differently by the government, and (2) the government fails to provide a rational basis for the dissimilar treatment. Id.
Moreland contends that the district court should have adopted the Eleventh Circuit‘s approach in Johnson v. Smith, 696 F.2d 1334 (11th Cir.1983). In Johnson, the court stated that treating presentence defendants and postsentence defendants differently would not violate the Constitution if (1) conditions for presentence defendants were less restrictive than for postsentence defendants, or (2) the government had a rational reason for the disparate treatment of the two similarly situated groups. Id. at 1337 (emphasis added). However, the Johnson court was not required to and did not consider the antecedent question of whether presentence defendants and postsentence defendants are similarly situated because the government had conceded they were in the district court. Id. at 1338. Moreland does not have the benefit of such a concession in this case. We find that the Johnson holding does not apply to this case because presentence defendants and postsentence defendants are legally distinct from one another and, therefore, are not similarly situated. See Woods, 888 F.2d at 656 (as a matter of law, presentenсe defendants and postsentence defendants are not similarly situated because of divergent legal status).
Presentence defendants in a halfway house have a different legal custody status than postsentence defendants. A presentence defendant is under the custody of the proprietors of the halfway house. He is released there by a judicial officer whose statutory goal is to impose the least restrictive conditions possible upon the defendant‘s liberty. In contrast, a postsentence defendant is in the custody of the Attorney General and under the authority of the BOP. Upon receiving custody, BOP initiates a procedure to determine the postsentence defendant‘s security level (i.e., Minimum, Low, Medium, or High). In making this determination, the BOP considers a myriad of factors which include aspects of the conviction, judicial recommendations, publiс safety factors, potential to cause institutional disruption and escape potential. Bureau of Prisons, Security Designa-
III.
Because Moreland was not in “official detention” within the meaning of
LOKEN, Circuit Judge, concurring.
This case turns on the meaning of the term “official detention” in
To put this issue in context, we must begin with the Bail Reform Act of 1966.2 The principal purpose of that statute was to liberalize existing bail procedures by providing for the mandatory pretrial release of all federal offenders in noncapital cases under the least restrictive conditions necessary to “reasonably assure the appearance of the person for trial,”
The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentencе was imposed.
(Emphasis added.) The Bureau of Prisons 1979 Program Statement 5880.24(5)(b)(5) interpreted and applied this portion of
In the 1984 Crime Control Act, Congress once again amended the provisions relating to pretrial release and to presentence credit in the same statute. This time, however, the congressional emphasis was on restricting pretrial release of federal defendants who pose an unreasonable danger to public safety. To achieve this objective,
It was in this context that Congress enacted
Subsection (b) provides that the defendant will receive credit toward the sentence of imprisonment for any time he has spent in official custody prior to the date the sentence was imposed....
H.Rep. No. 98-1030 (excerpting S.Rep. No. 98-225), 98th Cong., 2d Sess., at 129, reprinted in 1984 U.S.C.C.A.N. 3182, 3312 (emphasis added). Was this change, then, a meaningless juggling of synonyms, so that court decisions and Bureau of Prisons interpretations under
To ignore the definition of detention in
In the absence of anything in the statute clearly indicating an intention to the contrary, where the same word or phrase is used in different parts of a statute, it will be presumed to be used in the same sense throughout; and, where its meaning in one instance is clear, this meaning will be attached to it elsewhere.
Schooler v. United States, 231 F.2d 560, 563 (8th Cir.1956), quoting 82 C.J.S., Statutes § 348. Section 3142 expanded the statutory authority for presentence orders of detention and carefully defined the circumstances under which such “detention” may be ordered. Given the prior interrelationship of these provisions in the earlier 1966 Act, this creates a compelling inference that the congressional intent in substituting “detention” for “custody” in
In these circumstances, the majority‘s deference to Program Statement 5880.24(5)(b)(5) in this case is misplaced. The Program Statement interpreted the undefined word “custody” in former
This interpretation is sensible as well as consistent with principles of statutory construction. The result is a bright-line test that gives the government and the accused clear notice of the implications of the
This bright-line test has an additional advantage. It would eliminate the need for innumerable fact-based inquiries into the extent of pretrial “detention,” inquiries that will inevitably expend Bureau of Prisons resources investigating events prior to the time the Bureau has taken custody of the defendant. Certainty and efficiency would result from logically assuming that Congress intended to give the word “detention” the same meaning in these two interrelated provisions of the Crime Control Act. We should construe the statute accordingly.
HEANEY, Senior Circuit Judge, dissenting, with whom LAY, Chief Judge, McMILLIAN, RICHARD S. ARNOLD, and JOHN R. GIBSON, Circuit Judges, join.
Moreland is entitled to 150 days credit for the time he spent in custody at the Residential Services Community Treatment Center (Center). The denial of this sentence credit violates the language of the statute and the Constitution‘s equal protection clause. I respectfully dissent.
Deference to Bureau of Prisons Policy Statement
This case is about the meaning of two words: official detention. According to Congress, defendants are entitled to sentence credit for the time they spent in “official detention” before their court-imposed sentence begins. Unlike this court, I do not believe that the term “official detention” is “ambiguous” or “abstruse[],” and I would not defer to the interpretation of the statute adopted by the Bureau of Prisons.
If the text of a statute is ambiguous and thus open to interpretation in some respects, “a degree of deference is granted to the agency, though a reviewing court need not accept an interpretation which is unreasonable.” National Railroad Passenger Corp. v. Boston & Maine Corp., — U.S. —, —, 112 S.Ct. 1394, 1401, 118 L.Ed.2d 52 (1992). Thus, the deference is not absolute and the reviewing court is the final authority on issues of statutory construction. If a court “ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 2781 n. 9, 81 L.Ed.2d 694 (1984).
The statute at issue here does not define the term “official detention.” Every undefined term, however, is not necessarily ambiguous. For example, even though official detention is not defined, one could not persuasively contend that the term “official detention” excludes time spent incarcerated in a county jail. We routinely construe the meaning of statutes when important terms are not defined, and the “ordinary and obvious meaning of the phrase is nоt to be lightly discounted.” INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 1213, 94 L.Ed.2d 434 (1987). Although the statute does not expressly indicate whether “official detention” encompasses custody in a halfway house, nothing in the statute or
Legislative History and Plain Meaning of Official Detention
The legislative history of the statute is significant because it demonstrates that Congress has continually expanded the class of prisoners authorized to receive sentence credit for pretrial custody. At first,
As the Supreme Court recently noted, Congress again enlarged the class of defendants eligible to receive credit in 1984 when it replaced section 3568 with the current statute. See United States v. Wilson, — U.S. —, —, 112 S.Ct. 1351, 1356, 117 L.Ed.2d 593 (1992). At that time, Congress also replaced the term “custody” with “official detention.” See id. Although the legislative history states that Congress did not intend a different result by this change in language, the new language is at least more precise than the old. See Ramsey v. Brennan, 878 F.2d 995, 996 (7th Cir.1989) (construing former
With this legislative guidance, I turn to the ordinary meaning of the words at issue. Official is something “prescribed or recognized as authorized.” Webster‘s Ninth New Collegiate Dictionary at 820 (1986). Here, a court order required Moreland to stay at the Residential Services Community Treatment Center and to obey the Center‘s rules. The Center acted as an agent of the criminal justice system, and the term “official” certainly applies to Robert Moreland‘s 150 day stay. The ordinary definition of detention is a “period of temporary custody prior to disposition by a court,” see id. at 345, so Moreland‘s custody at the Center must also be considered “detention.”
Degree of Restraint on Moreland
The touchstone here is whether the degree of confinement or restraint provided by residence in a halfway house is sufficient to constitute custody within the meaning or intent of the statute.1 The Bureau of Prisons, to whom the majority defers, recognizes this focus. See BOP Program Statement 5880.24(5)(b)(5) (time spent in halfway house as a condition of bail or bond “is not creditable as jail time since the degree of restraint provided by residence is not sufficient restraint to constitute custody within the meaning or intent of 18 USC 3568“). The only question before us is whether Moreland was subject to the degree of restraint necessary to allow him sentence credit. All agree that an incarcerated individual is entitled to sentence credit, so it follows that a defendant subject to conditions as restrictive as incarceration may receive sentence credit. Under this standard, Moreland is entitled to sentence credit. Although the court characterizes Moreland‘s confinement as a mere curfew, it can do so only by ignoring the record. For example, the court suggests that Moreland was subject only to a midnight to 8:00 a.m. curfew during his confinement at the
The record reveals that Moreland was completely confined twenty-four hours a day in the Center during his first two weeks of custody there. Not only was Moreland barred from leaving the grounds during that time, but he was subject to the liberty restrictions, rules, and regulations of the Center. These rules included: no drugs, narcotics, or alcohol; no weapons, sharp instruments, or knives; random urine and breath tests; nightly bed checks; no smoking in room; limited visiting hours, with all visiting to take place in the Center‘s dining room; and telephone use limited to ten minutes. These restrictions mirror those imposed on jail inmates.2 The Bureau of Prisons’ policy statement, however, makes no allowance for a situation such as Moreland‘s. I cannot see how the total confinement Moreland was subjected to for two weeks can be considered less restrictive than incarceration and undeserving of sentence credit, and the court does not offer a reason for its conclusion to the contrary.
After two weeks of total confinement, the Center gradually increased the amount of time that Moreland could be away from the Center. During this time, Moreland‘s conditions of confinement were more restrictive or equally restrictive as the 10 hours of daily confinement held to be custody in Brown v. Rison, 895 F.2d at 536. For two weeks, Moreland was allowed to seek employment at the Center‘s direction between 8:00 a.m. and 4:00 p.m. (sixteen hours of confinement a day). Moreland then was granted a 7:00 p.m. curfew for the two weeks after he found a job (thirteen hours of confinement a day). The Center then imposed a 10:00 p.m. curfew upon Moreland (ten hours of confinement a day). It was not until Moreland had been at the Center for approximately two months that he was subject to a midnight to 8:00 a.m. curfew.3 At all times, thе Center subjected Moreland to a compulsory sign-in and sign-out surveillance system. The Center required Moreland to provide an accurate address and telephone number of his destination when signing out, monitored his whereabouts at all times while outside the center, and subjected him to telephone checks during that time.
In short, the Center subjected Moreland to 24-hour supervision and physically incarcerated him for a substantial part of each day for 150 days. Indeed, for part of his confinement at the Center, Moreland was subject to significantly stricter liberty restrictions than those in Brown v. Rison. Moreover, as I noted earlier, the Center acted at the behest of the criminal justice system. Moreland was subject to “official detention,” and to deny him sentence credit is unreasonable and contrary to the considerations of fairness that inspired Congress’ decision to providе credit for time served. Brown, 895 F.2d at 536.
Moreland‘s Conditional Release
The court places great weight on the fact that the Magistrate Judge granted Moreland a conditional release within the meaning of
Equal Protection
It is undisputed that Moreland was subject to the same conditions of confinement as prisoners who were completing their sentence at the Center. All inmates at the Center are under the same rules and conditions whether they are presentence or postsentence detainees. Moreland, however, will not receive sentence credit, but postsentence detainees who lived under identical conditions will. In my view, this disparate treatment of similarly situated groups without a rational basis for the disparity violates the Constitution. See Johnson v. Smith, 696 F.2d 1334 (11th Cir.1983).
The court justifies this result by focusing on the “legal custody status” of presentence and postsentence inmates. According to the court, presentence detainees released to a halfway house are placed in the least restrictive conditions possible, while postsentence detainees are in the custody of the Attorney General, with the Bureau of Prisons assigning inmates to various institutions based on security and other factors. This focus is misleading.
First, the legal status of presentence and postsentence detainees is not as different as the court suggests. If Moreland had escaped from the Center he would have been subject to criminal penalties similar to those applicable if he had been a postsentence detainee. Compare U.S.S.G. 2J1.6 (failure to appear by defendant) with U.S.S.G. § 2P1.1 (escape). In fact, some courts have gone one step further, holding that the escape statute applies to a pretrial detainee such as Moreland. See United States v. Rindgo, 411 A.2d 373 (D.C.1980) (defendant in pretrial detention at halfway house subject to escape charges under
Moreover, I do not sеe how a delineation of the paths by which people become residents or a recitation of official goals and reasons leading to their residential status can adequately serve as a rational basis for differing treatment. Nobody would contend that the Bureau of Prisons could justify a denial of sentence credit to presentence detainees in county jails because their legal status differed from postsentence defendants. Under the statute, the degree of confinement is what is at issue,
For the foregoing reasons I dissent.
GERALD W. HEANEY
UNITED STATES SENIOR CIRCUIT JUDGE
Notes
that has not been credited against another sentence.(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; ...
(Emphasis added.) The Bail Reform Act of 1984 and its amendments.(1) place the person in the custody of a designated person or organization agreeing to supervise him;
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(5) impose any other condition deemed reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours.