The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2410
YANCEY LAMARR WHITE,
Petitioner-Appellee,
v.
JOSEPH SCIBANA,
Respondent-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 03 C 0581 C—Barbara B. Crabb, Chief Judge.
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ARGUED SEPTEMBER 9, 2004—DECIDED DECEMBER 2, 2004
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Before EASTERBROOK, EVANS and SYKES, Circuit Judges.
SYKES, Circuit Judge. This appeal presents a question of
statutory interpretation involving the calculation of “good-
time credit” for prisoners serving federal sentences. Under
the good-time statute, an eligible prisoner may receive cre-
dit “beyond the time served, of up to 54 days at the end of
each year of the prisoner’s term of imprisonment, beginning
at the end of the first year of the term,” subject to the
Bureau of Prisons’ determination that “during that year,
the prisoner has displayed exemplary compliance with insti-
tutional disciplinary regulations.” 18 U.S.C. § 3624(b)(1).
Yancey White’s behavior has been exemplary in all but one
2 No. 04-2410
of his years behind bars: after serving eight years of his ten-
year sentence for distribution of cocaine base, he is entitled
to all but ten days of the good-time credit allowed him
under the statute. The question is, how much time is that?
The Bureau of Prisons interprets the good-time statute as
allowing an award of up to fifty-four days of credit for each
year the inmate actually serves in prison. The term an
inmate actually serves is not the term imposed by the court
but something less; annual good-time awards operate to
incrementally reduce the term of imprisonment imposed in
the sentence. The statutory good-time calculation is thus
(according to the Bureau’s interpretation) not fifty-four days
times the number of years imposed but fifty-four days for
each year actually served. According to this method of
calculation, the Bureau plans to release White on March 3,
2005.
White contends that the good-time statute unambiguously
entitles inmates to fifty-four days of credit for each year of
the sentence imposed, minus any deductions for disciplinary
violations. According to this method of calculation, White
believes he is entitled to be released on December 23, 2004.
He petitioned for relief under 18 U.S.C. § 2241. The district
court agreed with White’s interpretation of § 3624(b)(1) and
ordered his release date recalculated. White v. Scibana, 314
F. Supp. 2d 834 (W.D. Wis. 2004). We reverse.
I. Background
In August 1996 Yancey White was sentenced by the
United States District Court for the Southern District of
Illinois to 120 months in prison for three counts of distribut-
ing cocaine base. He is serving that sentence at the Federal
Correctional Institution in Oxford, Wisconsin. In March
2003 White filed a request for administrative remedy as-
serting that his good-time credit had been miscalculated.
He claimed entitlement to fifty-four days of good-time credit
No. 04-2410 3
for each year of the ten-year sentence imposed by the court,
or a total of 540 days. The warden denied the request, citing
§ 3624(b) and explaining that the statute allowed inmates
to earn fifty-four days of good conduct time for each year
served, not each year of the sentence imposed. The warden
told White that because he would not be in service of the
full ten-year sentence, his good-time credit could not be
calculated by simply multiplying fifty-four by ten. Applying
a formula the Bureau uses to calculate good-time credit on
the basis of time served, the warden informed White that he
was entitled to 470 days of good-time credit (later reduced
by ten days for a disciplinary infraction). White appealed to
the regional and central offices of the Bureau, both of which
denied relief.
White filed a habeas corpus petition under 28 U.S.C.
§ 2241 in the United States District Court for the Western
District of Wisconsin. The district court granted relief,
concluding that “§ 3624(b) is unambiguous: ‘term of impris-
onment’ means ‘sentence imposed.’ Therefore, the bureau
must calculate an inmate’s good conduct time on the basis
of his sentence rather than on the time he has served.”
White, 314 F. Supp. 2d at 836. The court ordered Warden
Joseph Scibana to recalculate White’s release date. The
warden appealed.
II. Discussion
The federal prisoner “good-time” statute provides, in per-
tinent part:
(a) Date of release.—A prisoner shall be released by
the Bureau of Prisons on the date of the expiration of
the prisoner’s term of imprisonment, less any time
credited toward the service of the prisoner’s sentence as
provided in subsection (b).
(b) Credit toward service of sentence for satisfactory
behavior.—
4 No. 04-2410
(1) [A] prisoner who is serving a term of impris-
onment of more than 1 year other than a term of im-
prisonment 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, begin-
ning 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.
....
[C]redit for the last year or portion of a year of the term
of imprisonment shall be prorated and credited within
the last six weeks of the sentence.
18 U.S.C. § 3624 (emphasis added).
The Bureau has promulgated a rule reflecting its inter-
pretation of the good-time statute: “[p]ursuant to 18 U.S.C.
§ 3624(b) . . . an inmate earns 54 days credit toward service
of sentence (good conduct time credit) for each year served.”
28 C.F.R. § 523.20 (emphasis added). The Bureau has also
issued, as part of its Sentence Computation Manual,
Program Statement 5880.28, which depicts a formula ad-
dressing the problem of calculating good-time credit on
sentences of a year and a day and provides examples of the
partial-year proration at the end of a sentence.
The Bureau’s proration and year-and-a-day formula is
based on the premise that for every day a prisoner serves on
good behavior, he may receive a certain amount of credit
toward the service of his sentence, up to a total of fifty-four
days for each full year. Thus, under the Bureau’s formula,
a prisoner earns .148 days’ credit for each day served on
good behavior (54 ÷ 365 = .148), and for ease of administra-
tion the credit is awarded only in whole day amounts.
Recognizing that most sentences will end in a partial year,
the Bureau’s formula provides that the maximum available
No. 04-2410 5
credit for that partial year must be such that the number of
days actually served will entitle the prisoner (on the .148-
per-day basis) to a credit that when added to the time
served equals the time remaining on the sentence.1
When an agency interprets a statute it administers, ju-
dicial review is normally deferential. “We have long since
recognized that considerable weight should be accorded to
an executive department’s construction of a statutory scheme
it is entrusted to administer.” Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, 467 U.S. 837, 844 (1984). But the
threshold question before deferential review is triggered is
“whether Congress has directly spoken to the precise
question at issue. If the intent of Congress is clear, that is
the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of
Congress.” Id. at 842-43. However, “if the statute is silent
or ambiguous with respect to the specific issue, the question
for the court is whether the agency’s answer is based on a
permissible construction of the statute.” Id. at 843.
Not all agency interpretations of ambiguous statutes are
entitled to full Chevron deference; some are treated as per-
suasive only, based upon the form, content, circumstances,
and reflected expertise of the interpretation. United States
v. Mead Corp., 533 U.S. 218, 227-28, 238 (2001), discussing
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Full
Chevron deference is limited to cases in which “it appears
that Congress delegated authority to the agency generally
to make rules carrying the force of law, and that the agency
interpretation claiming deference was promulgated in the
exercise of that authority,” as when the agency engages in
1
As applied to a model inmate serving a sentence of a year and
a day, the formula results in an anticipated release at day 319. On
that day, the inmate will have earned forty-seven days of good
time (319 x .148 = 47.2), and 47 + 319 = 366, or the full year-and-
a-day sentence. BOP Program Statement 5880.28 at 1-45.
6 No. 04-2410
adjudication or notice-and-comment rulemaking. Mead, 533
U.S. at 227; U.S. Freightways Corp. v. Comm’r. of Internal
Revenue, 270 F.3d 1137, 1141 (7th Cir. 2001).
Other agency interpretations issued pursuant to compara-
ble authority and procedure may also claim Chevron de-
ference, see Mead, 533 U.S. at 230-31; Krzalic v. Republic
Title Co., 314 F.3d 875, 879 (7th Cir. 2002), but neither the
Supreme Court nor this court has clarified the outer limits
of the universe of less formal agency interpretations that
might qualify. We need not attempt to do so here (and the
issue of lesser deference under Mead-Skidmore does not
come into play) because the Bureau’s interpretation of the
good-time statute is embodied in 28 C.F.R. § 523.20, adopted
pursuant to notice-and-comment rulemaking. See 62 Fed.
Reg. 50,786 (Sept. 26, 1997). The Bureau’s discretion to
resolve ambiguities in the good-time statute is implicit in
its statutory authority to determine and award good time
and release prisoners when their sentences, as adjusted by
the Bureau for good-time credit, have expired. 18 U.S.C.
§§ 3624(a), (b). The Bureau’s interpretation of § 3624(b) is
therefore entitled to full Chevron deference.2
But first there is the question of whether the statute is
clear. The district court and the parties have focused
primarily on the meaning of the statutory phrase “term of
imprisonment.” The phrase appears several times in § 3624.
In subsection (a) the statute says that the Bureau shall
release a prisoner “on the expiration of the prisoner’s term
of imprisonment, less any time credited” under subsection
2
The formula contained in Program Statement 5880.28 is
premised upon the Bureau’s position that 18 U.S.C. § 3624(b)
allows fifty-four days of good-time credit for each year served. As
we have noted, the Bureau’s “time served”—as opposed to “sen-
tence imposed”—interpretation of the good-time statute is con-
tained in 28 C.F.R. § 523.20. Because the Program Statement is
consistent with the regulation, we do not further address the
Program Statement.
No. 04-2410 7
(b). The phrase “term of imprisonment” as used in subsec-
tion (a) must refer to the expiration of the sentence imposed,
since it is axiomatic that a prisoner is released when he has
served out his sentence. Similarly, in subsection (b), the
statute provides that a prisoner is eligible for good-time
credit if he is “serving a term of imprisonment of more than
1 year,” other than a term of life imprisonment. In this part
of the statute “term of imprisonment” must also refer to the
sentence because the Bureau has to determine whether a
prisoner is eligible for the credit on the first day he arrives
in prison. Prisoners sentenced to terms of slightly more
than one year may or may not spend one calendar year in
prison, depending on how much good-time credit they
ultimately receive. If “term of imprisonment” here means
time served, then an inmate who initially would be eligible
for the credit because his sentence was, say, 366 days,
would become ineligible once the credit was taken into
account.
But the specific use of the phrase “term of imprisonment”
at issue here—in the part of the statute that describes how
good-time credit is awarded—appears not to refer to the
sentence imposed. Subsection (b) provides that a prisoner
“may receive” good-time credit “beyond the time served, of
up to 54 days at the end of each year of the prisoner’s term
of imprisonment,” subject to the Bureau’s determination
that the prisoner’s behavior during that year has been ex-
emplary. The statute thus establishes a process of awarding
credit at the end of each year of imprisonment based on a
review of the prisoner’s behavior during that year, a process
that would be undermined if “term of imprisonment” means
“sentence imposed.” This is because the accumulation of
good-time credit reduces the amount of time a prisoner will
ultimately spend in prison, sometimes (as in White’s case),
by more than an entire year. The Bureau cannot evaluate
a prisoner’s behavior and award credit for good conduct if
the prisoner is not still in prison.
8 No. 04-2410
As we have noted, the statute anticipates the problem of
a partial year at the end of a sentence by providing for
proration of the credit for the partial year and awarding it
in the last six weeks of the sentence. 18 U.S.C. § 3624(b)(1).
But the Bureau cannot predict precisely the length of the
partial year at the end of a prisoner’s sentence when he
first sets foot in prison, for everything depends on whether
good time is awarded at the end of each year. Thus, if “term
of imprisonment” refers to the sentence imposed, it becomes
impossible to award the credit based on an annual year-end
assessment of the prisoner’s behavior. And such retrospec-
tive annual assessment and award of credit appears to be
at the core of what the good-time statute is all about.3 To
interpret “term of imprisonment” as “sentence imposed” for
purposes of awarding good-time credit would entitle an
inmate to receive credit for good conduct in prison for
time—perhaps several years of time—that he was not in
prison.
3
The warden points to the language of the prior good-time stat-
ute to emphasize the retrospective nature of good-time awards
under the current statute. Congress adopted 18 U.S.C. § 3624 as
part of the Comprehensive Crime Control Act of 1984, effective
November 1, 1987. Its predecessor, 18 U.S.C. § 4161, provided
that each prisoner “shall be entitled to a deduction from the term
of his sentence beginning with the day on which the sentence
commences to run.” The amount of the credit varied based upon
the length of the sentence, ranging from five days a month for a
sentence at the low end (a sentence of six months to a year) to ten
days a month for a sentence of ten years or more. A companion
statute, 18 U.S.C. § 4165, provided that “earned good time may be
forfeited” if the prisoner violated institutional rules. Thus, the
prior good-time scheme contemplated a prospective good-time
entitlement, subject to later forfeiture for disciplinary infractions.
In contrast, 18 U.S.C. § 3624(1)(b) establishes a system of annual
performance reviews and credit awards, subject to the proration
for a partial final year and award in the last six weeks.
No. 04-2410 9
The district court applied the general rule of statutory
construction that identical words used in different parts of
the same statute are presumed to have the same meaning.
White, 314 F. Supp. 2d at 838-39, citing Gustafson v. Alloyd
Co., 513 U.S. 561, 570 (1995), and Firstar Bank, N.A. v.
Faul, 253 F.3d 982, 990 (7th Cir. 2001). The rule is only a
presumption, of course, and “the presumption is not rigid
and readily yields whenever there is such variation in the
connection in which the words are used as reasonably to
warrant the conclusion that they were employed in different
parts of the act with different intent.” General Dynamics Land
Sys., Inc. v. Cline, 124 S.Ct. 1236, 1238 (2004) (quoting
Atlantic Cleaners & Dyers v. United States, 286 U.S. 427,
433 (1932)).
Sometimes when this canon of construction is invoked (or
resisted), the apparent conflict is generated by uses of the
same term in different parts of a large single piece of
legislation. See, e.g., Hotel Equities Corp. v. Comm’r of
Internal Revenue, 546 F.2d 725, 728 (7th Cir. 1976); Matter
of Merchant’s Grain, Inc., 93 F.3d 1347, 1356 (7th Cir. 1996).
This case presents the unusual situation of an apparent
conflict in meaning of the same phrase within a single
statute, indeed within a single statutory subsection, which
might otherwise strengthen the presumption in favor of
harmonization. But it is impossible to make sense of 28
U.S.C. § 3624 while giving the phrase “term of imprison-
ment” one meaning throughout. “Term of imprisonment”
can only mean “sentence imposed” when used in subsection
(a) and in the eligibility language of subsection (b); attribut-
ing the same meaning to the phrase when it is used in
subsection (b) to describe how good-time credit is awarded
is inconsistent with the retrospective year-end evaluation
and award system the statute contemplates. We must
conclude that 18 U.S.C. § 3624 is ambiguous in that it does
not clearly indicate whether the fifty-four days’ credit for
good conduct for each year of the prisoner’s “term of im-
10 No. 04-2410
prisonment” is based on the sentence imposed or the time
served in prison. We defer to the Bureau’s reasonable in-
terpretation of the statute, which awards the credit for each
year served in prison rather than each year of the sentence
imposed.
One other circuit court has addressed this issue, and our
decision today is consistent with its analysis. In Pacheco-
Camacho v. Hood, 272 F.3d 1266, 1271 (9th Cir. 2001), the
Ninth Circuit concluded that § 3624 was ambiguous on the
question of whether good-time credit was to be awarded on
the basis of the sentence imposed or time served, and under
Chevron deferred to the Bureau’s interpretation. For the
foregoing reasons, the order of the district court granting
White’s petition for a writ of habeas corpus under 28 U.S.C.
§ 2241 is REVERSED.
No. 04-2410 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-2-04