Robert Scott Moreland, A/K/A Robert S. Moreland, A/K/A "Bobby" v. United States

LOKEN, Circuit Judge,

concurring.

This case turns on the meaning of the term “official detention” in 18 U.S.C. § 3585 (b), a statute enacted as part of the Comprehensive Crime Control Act of 1984. 1 The majority concludes that the term is ambiguous and defers to an interpretation of prior law by the Attorney General acting through the Bureau of Prisons. If § 3585(b) had been enacted in a vacuum, I would agree with this analysis. But it was not. The Crime Control Act contained another provision (now 18 U.S.C. § 3142 ) that expanded the federal courts’ authority to issue pretrial detention orders and, in the process, defined the word “detention” in the context of a federal prosecution. I conclude that the word “detention” in § 3585(b) incorporates the definition contained in § 3142. Since Moreland’s time at RSCTC was not spent under a § 3142 detention order, I concur in the majority’s decision to affirm.

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,” 18 U.S.C. § 3146 (a) (1982). Another purpose was to “assure that persons convicted of crimes will receive credit for time spent in custody prior to trial.” 3 To that end, Section 4 of the 1966 Act added the following sentence to 18 U.S.C. § 3568 :

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 sentence was imposed.

(Emphasis added.) The Bureau of Prisons 1979 Program Statement 5880.24(5)(b)(5) interpreted and applied this portion of § 3568. Administrative interpretation was needed because the word “custody” was left undefined in the statute. 4

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, *662 Congress amended 18 U.S.C. § 3142 to provide (i) for release of most federal defendants under “the least restrictive further condition, or combination of conditions,” as will reasonably assure appearance at trial and public safety during release, but (ii) for pretrial “detention” when “no condition or combination of conditions will reasonably assure” appearance at trial and public safety if the defendant is conditionally released. 18 U.S.C. §§ 3142 (b), (c), (e). If detention is ordered, the pretrial detention order shall “direct that the person be committed to the custody of the Attorney General for confinement in a corrections facility,” § 3142(i) (emphasis added).

It was in this context that Congress enacted § 3585(b) to replace the above-quoted sentence in § 3568. Section 3585(b) requires credit for presentence time spent in “official detention,” rather than in “custody.” The relevant committee reports suggest that little if any change in substance was intended by this change in language:

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 § 3568 continue in full force and effect? I think not.

To ignore the definition of detention in § 3142 when construing § 3585(b) violates an established principle of statutory construction:

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 § 3585(b) was to incorporate by reference the new definition of this term in § 3142. We should not need a detailed roadmap in the legislative history to give effect to this obvious, logical legislative purpose. 5

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 § 3568. Because Congress included its own definition of detention in § 3142 of the Crime Control Act, the Program Statement is no longer needed to determine whether a pre-sentence order issued pursuant to § 3142 resulted in “official detention.” 6

*663 Therefore, I would hold that a federal defendant is entitled to sentence credit under § 3585(b) for all time spent under a presentence detention order that was issued pursuant to 18 U.S.C. § 3142 (i). Conversely, to the extent that the defendant has been released before trial under § 3142, no sentence credit may be allowed under § 3585(b) regardless of how restrictive the release conditions may have been.

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 § 3142 pretrial release/detention issue — if the government successfully obtains pretrial detention, the defendant is guaranteed a sentence credit if convicted; on the other hand, if the defendant secures a pretrial release order, he or she receives no sentence credit if convicted.

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.

. Pub.L. No. 98-473, 98 Stat. 1843 (1984).

. Pub.L. No. 89-465, 80 Stat. 214 (1966).

. H.R.Rep. No. 1541, 89th Cong., 2d Sess., reprinted in 1966 U.S.C.C.A.N. 2293, 2295.

. Indeed, the word was used inconsistently elsewhere in the 1966 Act. The conditions of release authorized in § 3146(a) included:

(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.

(Emphasis added.)

. The majority’s decision to adopt the Attorney General’s prior interpretations of the word "custody” in construing the term "official detention” in § 3585(b) violates the normally strong presumption that a change in statutory language should not be ignored as meaningless. Moreover, the Supreme Court foreclosed our freedom to ignore this change in United States v. Wilson, - U.S. -, 112 S.Ct. 1351 , 117 L.Ed.2d 593 (1992): in holding that the Attorney General has exclusive jurisdiction to make initial sentence credit determinations under § 3585(b), even though the explicit reference to his decisionmaking authority was deleted from § 3568, the Court stated that the substitution of “official detention” for "custody" was one of the meaningful changes made in § 3585(b).

. As the majority points out in its footnote 10, incorporating the § 3142 definition leaves some presentence detention issues unanswered, such as the defendant "who spent time in state custody on a charge that evolved into a federal offense.” These situations, which the Program Statement termed “constructive federal custody,” 5880.24(5)(c), are obviously not governed by reference to § 3142. In the 1966 Act, Congress clearly intended that credit be given for time spent in such custody. I agree with the majority that nothing in the 1984 Act suggests an intent to change that regime. Therefore, although the question is not before us, I agree that the Bureau of Prisons retains the discretion to determine, in the first instance, whether time spent in presentence custody not controlled by *663 the federal trial court under § 3142 rises to the level of "official detention” for purposes of § 3585(b).