Summary
In White v. Scibana, 314 F. Supp. 2d 834, 838 (W.D. Wisc. 2004) (" White I"), the United States District Court for the Western District of Wisconsin adopted a position that would support Petitioner's argument and ruled that the BOP's GCT calculation method was invalid.
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03-C-581-C
April 23, 2004
Emily M. Feinstein, Quarles Brady, Madison, WI, for Petitioner.
Steven P. O'Connor, Assistant U.S. Attorney, Madison, WI, for Respondent.
OPINION AND ORDER
Under 18 U.S.C. § 3624(b), a federal prisoner may earn up to 54 days of good conduct time for every year of his "term of imprisonment." The question presented in this petition for a writ of habeas corpus is one of first impression in this circuit: whether § 3624(b) requires the Bureau of Prisons to calculate an inmate's good conduct time on thebasis of the inmate's sentence rather than on the time he has actually served. In an orderdated December 22, 2003, I concluded that petitioner Yancey White had raised a substantial question about the bureau's method of calculating good conduct time. I ordered respondent Scibana to show cause why the petition should not be granted.
The parties agree that 28 U.S.C. § 2241 is the proper vehicle for challenging thecalculation of good conduct time, Bell v. United States, 48 F.3d 1042 (8th Cir. 1995), thatpetitioner has properly exhausted his administrative remedies, Clemente v. Alien, 120 F.3d 703, 705 (7th Cir. 1997), and that this court has jurisdiction to hear the petition. Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-96 (1973). After considering respondent'sarguments supporting the bureau's interpretation, I conclude that § 3624(b) is unambiguous: "term of imprisonment" means "sentence imposed." Therefore, the bureau must calculatean inmate's good conduct time on the basis of his sentence rather than on the time he hasserved. In other words, if a prisoner is sentenced to a 10-year term of imprisonment, he mayearn up to 540 days of good conduct time in the absence of a disciplinary infraction. Thebureau may not limit the application of good conduct time to the amount of time theinmate has already served. Accordingly, I will grant the petition for a writ of habeas corpusand order respondent to recalculate petitioner's good conduct time as § 3624(b) directs.
I find the following facts from the record.
FACTS
Petitioner Yancey White is an inmate at the Federal Correctional Institution atOxford, Wisconsin. In August 1996, the United States District Court for the Southern District of Illinois sentenced petitioner to 120 months in prison after he was convicted ofthree counts of distributing cocaine base.
In March 2003, petitioner filed a request for an administrative remedy, arguing thatunder 18 U.S.C. § 3624, he was to receive "54 days [of good conduct time] for every yearthat [he] was given by the sentencing judge." Petitioner believed his projected release dateshould be December 2004 rather than February 2005 as the Bureau of Prisons hadcalculated. The warden denied petitioner's request for an administrative remedy, explainingthat
54 days of GCT [good conduct time] may be earned for each full year served on asentence in excess of one year, with the GCT being prorated for the last partial year.Since you will not be in service of a complete 120 months, you cannot calculate yourGCT credits by 120 months by 54 days. Applying this formula, you are entitled to 470 days GCT for a 120-month sentence.
The regional director affirmed the warden's decision, writing that § 3624(b) "mandates GCTbe awarded on the amount of time actually served, not on the length of the term imposed."Petitioner appealed to the administrator for national inmate appeals, who affirmed, statingthat "the Bureau of Prisons computed your sentence as required by the Program Statement 5880.28, Sentence Computation Manual — CCA and all applicable statutes."
In December 2003, staff at the prison in Oxford prepared an updated computationfor petitioner. After subtracting 10 days of good conduct time for a rule violation in April 2003, staff calculated that petitioner's projected release date was March 3, 2005.
DISCUSSION
The issue in this case is whether the Bureau of Prisons' method for calculating goodconduct time is consistent with 18 U.S.C. § 3624(b). That section provides:(b) Credit toward service of sentence for satisfactory behavior. —
(1) Subject to paragraph (2), a prisoner who is serving a term of imprisonmentof 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 theprisoner's term of imprisonment, beginning at the end of the first year of theterm. . . . Subject to paragraph (2), credit for the last year or portion of a yearof the term of imprisonment shall be prorated and credited within the last sixweeks of the sentence.18 U.S.C. § 3624(b)(1).
The bureau has promulgated a regulation interpreting this provision as awarding goodtime credit on the basis of "each year served." 28 C.F.R. § 523.20. In Program Statement5880.28, the bureau has set forth the formula it uses to calculate good conduct time. Underthe bureau's formula, an inmate that receives a sentence of one year and one day can earnup to 47 days of good conduct time rather than 54 days.
When a court reviews an agency's interpretation of a federal statute, the thresholdquestion is whether the interpretation is entitled to deference. The Supreme Court hasapplied varying levels of deference depending on the context of the interpretation. E.g., Alaska Department of Environmental Conservation v. EPA, 124 S.Ct. 983 (2004) (internal guidance memoranda entitled to "respect" but not "dispositive force");Yellow Transportation, Inc. v. Michigan, 537 U.S. 36, 45 (2003) (regulation promulgated afternotice and comment entitled to highest level of deference when Congress has expresslyauthorized agency to promulgate rules). Regardless of the context of the interpretation, theagency is entitled to no deference if Congress has expressed its intent unambiguously in thestatute. FDA v. Brown Williamson Tobacco Corp., 529 U.S. 120, 125-26 (2000).Agencies may fill gaps in ambiguous statutes; they may not contradict a statute's plainlanguage. Further, a court should conclude that a statute is ambiguous and thus open to gap-filling by agencies "only when the devices of judicial construction have been tried and foundto yield no clear sense of congressional intent." General Dynamics Land Systems, Inc. v. Cline, 124 S.Ct. 1236, 1248 (2004).
In the December 22, 2003 order, I concluded that the pivotal clause in § 3624(b) isthe one stating that an inmate may earn up to 54 days of good conduct time "at the end ofeach year of the prisoner's term of imprisonment." That clause raised the question whetherthe phrase "term of imprisonment" means "sentenced imposed" or "time served." If "termof imprisonment" refers to the sentence, an inmate's maximum potential good conduct timecould be calculated by multiplying 54 days by the number of years in the sentence. In thiscase, petitioner would have been eligible to earn up to 540 days against his sentence (54 days x 10 years = 540 days). However, if a term of imprisonment is defined by the inmate's actual time served, the number of good time credits that could be earned would be reducedand a more complicated calculation would be required because an inmate that earns goodtime will not actually serve his full sentence.
As an initial matter, respondent challenges the conclusion that the case turns on aninterpretation of "term of imprisonment." He argues that the phrase establishes only "which federal inmates are eligible to earn good time credits against their sentences in the discretionof the Bureau." Resp.'s Br., dkt. # 15, at 9. Respondent does not develop this argumentand I cannot agree with it. It is true that the statute allows good conduct time only for those prisoners serving a term of imprisonment of more than one year. But the statute says alsothat the inmate may receive 54 days of credit for every "year of the prisoner's term of imprisonment." If "term of imprisonment" means "sentence," an inmate would be eligibleto receive good conduct time for each year of his sentence rather than for each year he hasserved. Thus, I adhere to the conclusion in the December 22 order that the bureau has noauthority to calculate credits on the basis of time served if § 3624 unambiguously expresses Congress's intent to define "term of imprisonment" as "sentence imposed."
In isolation, the phrase "term of imprisonment" is arguably ambiguous.See AmericanHeritage Dictionary of the English Language 175 (4th ed. 2000) (defining "term" to meanboth "[a] limited period of time" and "a period of time that is assigned to a person toserve"). However, words in a statute are not to be read in a vacuum; courts must read the statute as a whole to aid in determining the meaning of each of its parts. King v. St.Vincent's Hospital, 502 U.S. 215, 221 (1991). A corollary to this rule is that identicalwords used in different parts of the same statute are presumed to have the same meaning. Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995).
The phrase "term of imprisonment" is used several times in § 3624. None of theother uses supports a "time served" interpretation of "term of imprisonment" andrespondent does not argue to the contrary. For example, the first sentence of § 3624(a)provides, "A prisoner shall be released by the Bureau of Prisons on the date of the expirationof the prisoner's term of imprisonment, less any time credited. . . ." This sentence can makesense only if a term of imprisonment is another way of saying the sentence imposed. If"term of imprisonment" means only the time actually served, there would be no need tosubtract "time credited" to determine the release date because good conduct time wouldalready be taken into account. This sentence is in essence a calculation for time served:Sentence imposed minus good time credited equals time served. There is no other way toread the provision.
Similarly, the first sentence of § 3624(b) provides that any "prisoner who is servinga term of imprisonment of more than 1 year" may earn good conduct time. (Section 3624(c) also refers to "a prisoner serving a term of imprisonment"). Again, this portion ofthe statute would make no sense if "term of imprisonment" means the time served. An inmate cannot be "serving" time he has already served. In this context, if Congress hadintended "term of imprisonment" to mean "time served," it could have used the clause "a prisoner who has completed a term of imprisonment of more than one year." Further, a "timeserved" interpretation of "term of imprisonment" in this clause would make determiningeligibility for good conduct time a perplexing process when the sentence is just over one year. For example, an inmate who would initially be eligible for good time credit because his sentence was 366 days would become ineligible once his good conduct time was taken into account.
Even the bureau has interpreted the statute as making good conduct time availablewhen the sentence is more than a year. See Program Statement 5880.28, Sentence Computation Manual — CCA (applying good time credit calculation to sentence of one yearand one day), attached to Aff. of Christine Hine, dkt. #15. Respondent does not explainwhy "term of imprisonment" should mean "sentence imposed" in one part of the statute and"time served" in another part.
It is true that the presumption that terms have a consistent meaning throughout asingle statute maybe overcome, as the Supreme Court reaffirmed recently. Cline, 124 S. Ct.at 1245. However, in Cline, the Court concluded that Congress did not intend to define theword "age" uniformly throughout the Age Discrimination in Employment Act because "age" has "several commonly understood meanings among which a speaker can alternate in the course of an ordinary conversation, without being confused or getting confusing." Id. at 1246. Unlike the word "age," the phrase "term of imprisonment" is not a common term incasual conversation. Rather, it is a legal term of art that Congress has employed in dozens of statutes, many of which were part of the Comprehensive Crime Control Act of 1984, thesame act in which § 3624 was included. Throughout these statutes, Congress has uniformlyused "term of imprisonment" as a synonym for "sentence." E.g., 18 U.S.C. § 3147("A term of imprisonment imposed pursuant to this section shall be consecutive to any other sentence of imprisonment."); 18 U.S.C. § 3156(a)(3) ("The term `felony' means an offensepunishable by a maximum term of imprisonment of more than one year."); 18 U.S.C. § 3582(discussing "factors to be considered in imposing a term of imprisonment"); 18 U.S.C. § 3584(a) ("If multiple terms of imprisonment are imposed on a defendant at the same time. . . ."); 28 U.S.C. § 994(b) ("If a sentence specified by the guidelines includes a term ofimprisonment, the maximum of the range established for such a term shall not exceed theminimum of that range by more than 25 per centum."). It is fair to assume that if Congresshad intended to make the calculation for good conduct time contingent on time servedrather than the sentence imposed, it would not have used a phrase with such a clear andconsistent meaning throughout the United States Code. Firstar Bank, N.A. v. Faul, 253 F.3d 982, 990 (7th Cir. 2001) ("[W]here a word is given a consistent meaning throughout theUnited States Code, then the courts assume that it has that same meaning in any particular instance of that word.")
To support the bureau's interpretation of the statute, respondent points to 18 U.S.C. § 4161, which governed calculation of good time credits from 1959 until 1987. Section 4161 provided:
Each prisoner convicted of an offense against the United States and confined in apenal or correctional institution for a definite term other than for life, whose recordof conduct shows that he has faithfully observed all the rules and has not beensubjected to punishment, shall be entitled to a deduction from the term of hissentence beginning with the day on which the sentence commences to run, as follows . . .
According to respondent, § 4161 required the bureau to calculate an inmate's good conducttime on the basis of his sentence because the statute stated expressly that an inmate whobehaves "shall be entitled to a deduction from the term of his sentence." See also H.R. Rep.86-935,reprinted in 1959 U.S.C.C.A.N. 2518 (noting that purpose of § 4161 was "toprovide for the return to the method of computing good conduct time which was followed between 1902 and 1948," namely, "multiplying the number of months of a sentence asimposed by the court by the appropriate number of days as prescribed in the statute").
Respondent argues that it is indicative of legislative intent that Congress chose tochange this language in the new version of the statute, but this argument is not persuasive.Replacing "sentence" with "term of imprisonment" does not evince an intent to change the method for calculating good time credits when Congress has used the terms interchangeably in so many other contexts. If anything, Congress's long history of using an inmate's sentenceto calculate good conduct time supports a conclusion that Congress would have been moreexplicit if it had intended to adopt a different policy. Firstar Bank, 253 F.3d at 988 ("Thecourts presume that Congress will use clear language if it intends to alter an establishedunderstanding about what a law means; if Congress fails to do so, courts presume that thenew statute has the same effect as the older version."). (Petitioner also cites statements bySenator Joseph Biden, who co-authored the Comprehensive Crime Control Act of 1984, that § 3624(b) was intended to give inmates good time credit of up to 15% of their sentences.141 Cong. Rec. S2348-01 (Feb. 9, 1995); 140 Cong. Rec. S12314-01, S12350 (Aug. 23, 1994). However, because both of these statements were made well after § 3624 was enacted, their probative value is limited. Sullivan v. Finkelstein, 496 U.S. 617, 628 n. 8 (1990) (noting "difficulties inherent in relying on subsequent legislative history");St. FrancisHospital Center v. Heckler. 714 F.2d 872, 880 (7th Cir. 1983) ("[P]ost enactment historyis not the surest guide of the legislative intent in initially passing the Act.").)
Neither the Supreme Court nor the Court of Appeals for the Seventh Circuit has heldexplicitly that § 3624(b) requires the bureau to calculate good conduct time on the basis ofthe sentence imposed. However, as petitioner points out, the court of appeals has assumedthat an inmate may be able to deduct up to 15% of his or her sentence by earning goodconduct time (54 days is approximately 15% of one year). E.g., United States v. Martin, 100 F.3d 46, 47 (7th Cir. 1996) (assuming that inmate could earn 4.5 years of good conducttime on 30-year sentence, or 15%); see also United States v. Prevatte, 66 F.3d 840, 846 (7th Cir. 1995) (Posner, J., concurring) (assuming that inmate can reduce sentence through goodconduct time by up to 14.7%).
One court has determined that the meaning of "term of imprisonment" in § 3624 isambiguous. Pacheco-Camacho v. Hood, 272 F.3d 1266 (9th Cir. 2001). However, incoming to this conclusion, the court did not consider how the phrase was used in the firstsentence of § 3624(a) and the first sentence of § 3624(b)(1), as well as in the rest of thecriminal code. Moreover, the court did not take into account the history of the statuteshowing that Congress intended good conduct time to be deducted from an inmate'ssentence. In finding the statute ambiguous, the court relied solely on the last sentence of § 3624(b)(1), which states that "credit for the last year or portion of a year of the term ofimprisonment shall be prorated and credited within the last six weeks of the sentence." Thecourt concluded that a "sentence imposed" interpretation of "term of imprisonment" wouldbe "inconsistent" with a requirement to prorate good time credits during the last year of theterm.Pacheco-Camacho, 272 F.3d at 1268-69.
I respectfully disagree with the conclusion that § 3624(b)(1) is ambiguous becauseit requires the last year of the term to be prorated. This requirement would support thebureau's interpretation of the statute only if all prison sentences were imposed in whole years. Because defendants in federal court are sentenced to a term of months rather than years, many sentences will end in a number of months after the last full year. Thus, thereis nothing inconsistent between prorating good time for the last year of the term andinterpreting "term of imprisonment" to mean the sentence. Regardless of the interpretationof "term of imprisonment," an inmate's good time will have to be prorated when his or her sentence consists of a number of years and some odd months.
In Pacheco-Camacho, the court stated that a "sentence imposed" construction would result in a "bonus" to the inmate because he or she will receive credit in advance of earning it. Respondent makes a similar argument. Resp.'s Br., dkt. #15, at 8 (["Petitioner's] proposed calculation allows prisoners to accrue good time credits for time they never serve.") However, this argument has force only if one assumes that the bureau's interpretation is thecorrect one. If one assumes that "a year" of the "term of imprisonment" is a year of thesentence imposed, then an inmate has completed a year of the term whenever the inmate's time actually served plus good conduct time equals 365 days (e.g., 311 days served + 54 days of good conduct time = 1 year of the term of imprisonment). Thus, the inmate still "earns" all of his good conduct time, but he does so at a faster rate than under the bureau's interpretation of the statute.
Finally, the Court of Appeals for the Ninth Circuit cited United States v. Johnson, 529 U.S. 53 (2000), to support its conclusion that § 3624(a) does not inform the proper interpretation of § 3624(b). The court's reliance on Johnson is puzzling. In that case, theSupreme Court recognized only that under § 3624(e), a "term of supervised release" cannotbegin until the inmate has been released from confinement. Johnson, 529 U.S. at 58-59.It did not consider the correct interpretation of the phrase "term of imprisonment" orsuggest that words in § 3624 have different meanings in different parts of the statute. Thus, Johnson is not instructive in this case.
Respondent makes one other argument not raised by the court inPacheco-Camacho: adopting petitioner's interpretation of § 3624(b) would be contrary to Congress's intent togive the bureau discretion in awarding good conduct time. He relies on Lopez v. Davis, 531 U.S. 230 (2001), in which the Supreme Court concluded that the bureau had discretionunder 18 U.S.C. § 3621 (e)(2)(B) to deny a sentence reduction because the statute providesthat the bureau "may" reduce sentences under particular circumstances. Respondent notes that § 3624(b) has a similar provision that an inmate "may" receive up to 54 days of credit for each year of the term of imprisonment.
Respondent confuses two very different issues. There is no question that the bureau has discretion to deny good conduct time when it concludes that the inmate's behavior doesnot warrant it. Petitioner acknowledges that discretion. He is not challenging the bureau's decision to disallow 10 days of good conduct time after he was found guilty of a ruleviolation. However, discretion in granting good conduct time does not translate into discretion for choosing the method for calculating good conduct time. The statute does notsay that the bureau "may" calculate good conduct time in any way it wants. Rather, thestatute uses the phrase "term of imprisonment" as the basis on which good conduct timemust be calculated.
As noted above, an agency does not have discretion to interpret a statute that isunambiguous. Because I have concluded that Congress had the unambiguous intent todefine the phrase "term of imprisonment" to mean "sentence imposed," I conclude that thebureau did not have authority to promulgate a regulation that uses "time served" as the basisfor the calculation. The petition must be granted.
ORDER
IT IS ORDERED that petitioner Yancey White's petition for a writ of habeas corpus under 28 U.S.C. § 2241 is GRANTED. Respondent Joseph Scibana is directed to recalculate petitioner's good conduct time on the basis of each year of his sentence rather than on time actually served.