Petition for Writ of Certiorari — White v. Hobart

Supreme Court brief2005

Ask Donna

What actually matters in this document.

Text

ee, Supreme Court, U.S.

A 041494 MAY 6 - 2005

= —OPFICE OF Iie CLERK

In The

Supreme Court of the United States

YANCEY L. WHITE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

DEAN A. STRANG

Counsel of Record

THOMAS G. WILMOUTH

BRIAN T. FAHL

FEDERAL DEFENDER SERVICES OF

WISCONSIN, INC.

517 East Wisconsin Avenue

Suite 182

Milwaukee, Wisconsin 53202

[414] 221-9900

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

The federal statute on credit for good conduct in

prison, 18 U.S.C. § 3624(b)(1), provides in relevant part:

a prisoner who is serving a term of imprisonment

of more than one year, other than a term of im-

prisonment for the duration of a prisoner’s life,

may receive credit toward the service of the pris-

oner’s sentence, 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 determina-

tion by the Bureau of Prisons that, during that

year, the prisoner has displayed exemplary com-

pliance with institutional disciplinary regula-

tions.... [C]redit for the last year or portion of a

year of the term of imprisonment shall be pro-

rated and credited within the last six weeks of

the sentence.

The phrase “term of imprisonment” appears four times in

that section. There is no dispute that the first two times it

refers to the years imposed by the sentencing judge. But the

third time the statute refers to the “term of imprisonment,”

the Bureau of Prisons interprets it to allow 54 days of credit

per year served, rather than per year imposed. With a lengthy

and complicated mathematical calculation in Bureau of

Prisons Program Statement 5880.28, the Bureau of Prisons

determined that prisoners are allowed up to 47 days of good

time credit per year imposed, and not 54 days. Petitioner asks:

Under 18 U.S.C. § 3624(b)(1), are prisoners on good

behavior entitled to 54 days of good time credit per year of

the sentence imposed, as the statute’s plain terms and its

legislative history provide, or 47 days as the Bureau of

Prisons has decided?

LIST OF PARTIES

All parties appear in the caption of the case on the

cover page.

TABLE OF CONTENTS

Page

PETITION FOR WRIT OF CERTIORARI ...................

cde cha linden dientninthannbeliinabanetabial 1

IIT Ur Juchictintacidcresiosechidaschanoindanhedeabiebdnadaiabaden 1

ETT ins scekncemaniohaennensniussasinelediglonnn 2

REGULATIONS INVOLVED...................ccecccssessessessecess 2

OTHER AUTHORITIES INVOLVED....................0...... 2

pre Sy gh 6 gy | Lo) | 2

REASONS FOR GRANTING THE WRIT..................... 4

A. The Bureau of Prisons’ Determination that

Prisoners Receive 47 Days of Good Time Per

Year Rather than the 54 Days of Good Time

Credit Intended by Statute Raises an Impor-

tant and Expensive Question .......................000+5 4

B. The Seventh Circuit Misapplied Supreme

Court Precedent When it Interpreted 18 U.S.C.

§ 3624 as Ambiguous and then Deferred to the

Bureau of Prisons’ Interpretation of the Stat-

RD, FPUARE BO CRRGII ONS oocccececnsccicnecesnctnccecscsess 7

IIIT siicdiceetasbcseniciedegasesiciininndi aikcihinaniesSeateleasaibies 12

INDEX TO APPENDICES

White v. Scibana, 390 F.3d 997 (7th Cir. 2005)......... App. 1

White v. Scibana, 314 F.Supp.2d 834 (W.D. Wis.

SITET \isiccecsestteczbiidisacenceideiligiaiaisaliaintlanteinnabedasaiesliabendaniaedan App. 12

White v. Scibana, No. 04-2410, Order Denying

Rehearing En Banc. (Feb. 9, 2005) ............ eee App. 26

Be IE iseaicacsnicttectnnpeiiciatiesiniainvcadiipsnveniaced App. 27

TABLE OF AUTHORITIES

Page

CASES

Alaska v. American Can Co., 358 U.S. 224 (1959).............. 4

Army & Air Force Exchange Service v. Sheehan, 456

Ck “Fae CM eiciiticths hea nese niededteicactesiaepeaee te is cada a 7

Bailey v. United States, 516 U.S. 137 (1995)............. ee. 9

Brown v. Hemmingway, 53 Fed. Appx. 338, 2002

We hs SRM CHURN CAN IED stcviieisarcnciviioiarsnteinuadsabiesbinehunns 8

Chevron U.S.A., Inc. v: Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984)...............0000. 7, 8, 10, 11

Christianson v. Harris County, 529 U.S. 576 (2000)........ 11

Clark v. Martinez, 125 S.Ct. 716 (2008)...................0cceecee. 10

Commissioner v. Standard Life & Accident Ins. Co.,

Se FFB Be ET tisacictceecerieceaccicsaaii 4

Henderson v. Kibbe, 431 U.S. 145 (1977)...........ccceceseseeeeees 7

INS w. Bh or, GSB US. FO ae biscikeemiciccieie 10

Leocal v. Ashcroft, 125 S.Ct. 377 (2004)... eeeeeeeees 10

Moreland v. Federal Bureau of Prisons, No. CIV. A.

H-04-3658, 2005 WL 757154 (S.D. Tex. March 30,

ID sixcininisininsaisnasiciicndatassduanchaaksaeaaneimaaiadseaiaan nnn 8, 10

National Broiler Marketing Assn. v. United States,

BEG TS Bh. GIG CGF wvsskcicctnssiicehiicicettba a nee 7

Neal v. United States, 516 U.S. 284 (1996)............0........ 6

Pacheco-Camacho v. Hood, 272 F.3d 1266 (9th Cir.

DODD ercssinitncsniisanasarniisiodiididetsubimiaummm itis cil pie ae 8

Perez-Olivio v. Chavez, No. 04-1486, 2005 WL

31913 (1st Cir. January 7, 2005)................ccccccrrrsssrsssssees 8

TABLE OF AUTHORITIES -— Continued

Page

Sorenson v. Secretary of Treasury, 475 U.S. 851

CRIP <<ccsnsncssecnseseecqinasthmigcicinngebanniessnbinedegsianiainaaibiammianaa 9

United States v. Bass, 404 U.S. 336 (1971).............cccceeeeee 10

United States v. Booker, 125 S.Ct. 738 (2005) ...............000. 5

United States v. Doe, 465 U.S. 605 (1984) 0.0... eecceeeeees 7

United States v. Mead Corp., 533 U.S. 218 (2001)........... 11

United States v. Mitchell, 463 U.S. 206 (1983)................... 4

United States v. Ruzicka, 329 U.S. 287 (1946) .................. 4

White v. Scibana, 390 F.3d 997 (7th Cir. 2004)................... 1

White v. Scibana, 314 F. Supp.2d 834 (W.D. Wis.

BIBI) .ccncncsscsececnssscssnesosensstetosaieiansebsemmeiasicanenaaanaammaamaa 1

Williams v. Dewalt, 351 F. Supp.2d 412 (D. Md.

IED .xccsincasssninsnsrscccpintiasimeniinastnaaaaaee 8,9

Williams v. Lammana, 20 Fed. Appx. 360, 2001 WL

DEDOGHSD CGas Cee, TED sc cecsceentisncssstntinicstemataiisanccancee 8

STATUTES AND REGULATIONS

2B WBA. OB istintscnsivsscintecticiniinitbiasiapaa 2,7,8

BB USD. 9 GID scirenntttatchsniniciiiingen passim

DB UBD. © TG id ccenisssvsacecesinsnsiisccnenteienieaakanenen 1

SD UTE. § SIGE ccenscesscesncevensssicitciceecceaniaciianmaeaes 3

DD CBR, © Tee ncncsstictncussateniisiseisliasitennnidiistnssiedaianaiaas 2, 11

69 FED. REG. 57364 (Sept. 24, 2004)... eecceeeeeeeeee 5

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

Bureau of Prisons Program Statement 5880.28........ 2, 3,11

Jodi M. Brown & Patrick A. Langan, Felony Sen-

tences in the United States, 1996, BUREAU OF

JUSTICE STATISTICS BULLETIN (July, 1999) .............cccceeees 5

Todd Bussert & Joel Sickler, Grid & Bear It, THE

CE, a TID nsacindansnbsctintcndedctadsasentancdiiicntininats 7

BE, is MT, STINE uiicisscicdcccsdedaomensunsaddtancapsabiaaammenimnnenametal 10

PETITION FOR WRIT OF CERTIORARI

Petitioner, Yancey L. White, respectfully prays that a

writ of certiorari issue to review the judgment below.

OPINIONS BELOW |

The opinion of the United States Colurt of Appeals for

the Seventh Circuit appears at Appendix A-1 to the

Petition and is reported at 390 F.3d 997 (7th Cir. 2004).

That court also denied a petition for rehearing en banc by

an unpublished order dated February 9, 2005, found at

Appendix A-2.

The opinion of the United States District Court for the

Western District of Wisconsin appears at Appendix B to

the Petition and is reported at 314 F. Supp.2d 834 (W.D.

Wis. 2004).

JURISDICTION

The United States Court of Appeals for the Seventh

Circuit decided Petitioner’s case on December 2, 2004. The

petitioner filed a petition for rehearing en banc on January

24, 2005. The United States Court of Appeals for the

Seventh Circuit denied that petition on February 9, 2005.

Petitioner invokes this Court’s jurisdiction under

28 U.S.C. § 1254(1).

STATUTES INVOLVED

18 U.S.C. § 3624(b) appears in full at Appendix C

REGULATIONS INVOLVED

28 C.F.R. § 523.20 appears in full at Appendix D

OTHER AUTHORITIES INVOLVED

Bureau of Prisons Program Statement 5880.28 is 257-

pages long, too voluminous to be included as an appendix to

this petition. It may be obtained from the Bureau of Prisons

website at: http://www.bop.gov/policy/progstat/5880_028.pdf

STATEMENT OF THE CASE

This case invites the Court to consider the incarcera-

tion of more than 150,000 federal prisoners beyond the

time Congress intended — and beyond the time sentencing

judges thought they imposed — on the say of the Bureau of

Prisons. Petitioner won in the district court, lost in the

court of appeals, and comes finally to this Court.

In 1996, the United States District Court for the

Southern District of Illinois sentenced Petitioner to three

concurrent 120-month terms of imprisonment after his

convictions for distributing cocaine base. The federal

Bureau of Prisons (BOP) then took custody of Petitioner.

Later, the warden of the Federal Correctional Institu-

tion in Oxford Wisconsin, Joseph Scibana, communicated

to Petitioner that he had earned the maximum amount of

good time credit allowed under statute, 18 U.S.C.

§ 3624(b)(1), with the exception of ten days lost credit for a

disciplinary infraction. The BOP used a formula in its

Program Statement 5880.28, SENTENCING COMPUTATION

MANUAL, to calculate a maximum of 47 good time days per

year imposed. Accordingly, the BOP credited Petitioner

with 460 days of good time credit on his 10-year sentence.

Petitioner contended that the maximum good time

available to him was 540 days under 18 U.S.C.

§ 3624(b)(1). He formally contested the good time calcula-

tion, but the BOP ruled against him. After exhausting

administrative remedies, Petitioner filed a pro se petition

for a writ of habeas corpus under 28 U.S.C. § 2241 in the

Western District of Wisconsin, where he was incarcerated.

Petitioner asked the court to order Warden Scibana to

recalculate his good time credit using the plain language

of 18 U.S.C. § 3624(b)(1).

Petitioner won. The district court held that under the

rules of statutory construction, § 3624 is unambiguous. In

April 2004, the district court issued an order granting

Petitioner’s habeas corpus petition and directing Scibana

to revise Petitioner’s good time credit. Respondent filed a

timely notice of appeal. The Court of Appeals for the

Seventh Circuit then issued a decision reversing the

district court’s order on December 2, 2004.

The Seventh Circuit extended the deadline for a

petition for rehearing until January 24, 2005, and on that

date, Petitioner filed his petition for rehearing en banc. On

February 9, 2005, the Seventh Circuit denied that peti-

tion. Petitioner now files his timely Petition for a Writ of

Certiorari.

depen

REASONS FOR GRANTING THE WRIT

A. The Bureau of Prisons’ Determination that

Prisoners Receive 47 Days of Good Time Per

Year Rather than the 54 Days of Good Time

Credit Intended by Statute Raises an Important

and Expensive Question.

This case presents an issue of exceptional and na-

tionwide importance. The BOP’s interpretation of 18

U.S.C. § 3624(b)(1) involves the interpretation of a statute,

which is the sort of issue that this Court previously has

deemed an important question. See, e.g., United States v.

Ruzicka, 329 U.S. 287 (1946).

Further, the fact that the outcome of this case could

determine whether as much as $400,000,000 is added to

the federal Bureau of Prisons’ budget over the next several

years gives this case a financial weight that warrants

granting certiorari. See United States v. Mitchell, 463 U.S.

206, 211 n.7 (1983); Commissioner v. Standard Life &

Accident Ins. Co., 433 U.S. 148, 151 n.5 (1977); Alaska v.

American Can Co., 358 U.S. 224, 225 (1959).

The difference between the 54 days of good time for

each year imposed that Petitioner thinks Congress in-

tended, and the 47 days that the BOP allows (because it

interprets the 54 days as applying only to years served),

is staggering when applied to all federal inmates

serving more than one year, but less than life. The

policy affects approximately 155,092 federal prison

inmates. See www.bop.gov/fact0598.html (calculated by

adding all inmates serving one year or more, but less than

life or a death sentence). In 1996, which was the most

recent year that the Bureau of Justice Statistics reported,

the average sentence of federal prisoners sentenced to

more than one year in jail was 78 months, or 6.5 years.

Jodi M. Brown & Patrick A. Langan, Felony Sentences in

the United States, 1996, BUREAU OF JUSTICE STATISTICS

BULLETIN, at 7, Table 7 (July, 1999). With BOP awarding

only 47 days of good time each year, rather than 54, the

collective loss of liberty is more than 19,333 years.*

There is also a great financial cost to the Bureau of

Prisons’ interpretation. As of September 24, 2004, roughly

the start of the current October Term, the average cost of

prison confinement for one inmate was $23,181 per year.

69 FED. REG. 57364 (Sept. 24, 2004). Multiplied by the

increased number of inmate years, that means more than

$448,209,000 tax dollars are at stake. By its interpretation

of § 3624(b)(1), the BOP may have required an increase of

its budget by more than $448 million over time.

The question presented has further importance be-

cause it involves the overreaching of an executive branch

agency into the province of the judiciary. Under the

Sentencing Reform Act of 1984, federal judges continue to

impose determinate, although now discretionary, sen-

tences. See United States v. Booker, 125 S.Ct. 738 (2005).

The legislature had an institutional prerogative to estab-

lish a determinate sentencing scheme, and thus to decide

how much, if at all and at most, the sentence actually

served might fall below the sentence imposed. Congress

chose 54 days per year.

* (155,092 x 6.5 x 7 + 365) or 155,092 (inmates) multiplied by 6.5

(the average sentence length) further multiplied by 7 (number of days

difference between BOP’s calculation and the amount of good time

allowed by statute) divided by 365 (days per year).

Because Congress also chose to leave judges some

discretion in picking a determinate sentence, the judicial

branch has an institutional interest in knowing at the

time of sentencing how much, at most, an inmate’s good

behavior may reduce the otherwise determinate sentence

imposed. A judge’s choice of determinate sentence rea-

sonably may be affected by that judge’s calculation of the

greatest possible good time credit.

The executive branch, by contrast, has no interest in

deciding in general how long inmates should serve in

prison. That is legislative and judicial work, after the end ©

of indeterminate sentencing and executive branch parole

administration. The Bureau of Prisons’ interest is differ-

ent. The BOP’s interest is in assuring the safety, produc-

tivity and good order of federal prisons. It has an interest

in stripping disobedient inmatés of some (or all) of the

good time they otherwise might earn, and thus applying

an incentive for good behavior. So while it has no institu-

tional interest in determining the maximum good time

allowed to inmates generally, the BOP has a strong

interest in determining how much of that maximum to

allow each inmate specifically.

Courts routinely interpret ambiguous statutes. When

they do, executive branch agencies must defer to those

interpretations. See, e.g., Neal v. United States, 516 U.S.

284, 295 (1996). However, when the legislature delegates

interpretation to the executive, the judicial branch under

some circumstances must defer to executive branch

interpretations. Courts only will defer to executive branch

statutory interpretations when two conditions are present:

first, the legislature wrote an ambiguous statute; and

second, the legislature either expressly or implicitly

delegated authority to interpret that particular ambiguity

to an executive branch agency. Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837,

843-44 (1984).

The express delegation to the BOP of authority to

award credit to individual inmates, upon satisfactory

compliance with institutional rules, does not imply any

delegation to the BOP to determine the maximum good

time available to all inmates in the abstract. The two

tasks are unrelated and the latter belongs to courts, which

must impose determinate and discretionary sentences.

This Court should grant the petition because the issue

concerning the interpretation of § 3624(b)(1) is a question

of first impression in this Court. That is a reason for

granting certiorari. See National Broiler Marketing Assn.

v. United States, 436 U.S. 816, 820 (1978). The uncertain

interpretation of § 3624(b)(1) has led and will lead to

increased prisoner litigation on the good time credit issue.

See Todd Bussert & Joel Sickler, Grid & Bear It, THE

CHAMPION at 42 March, 2005.

B. The Seventh Circuit Misapplied Supreme Court

Precedent When it Interpreted 18 U.S.C. § 3624

as Ambiguous and then Deferred to the Bureau

of Prisons’ Interpretation of the Statute, Pursu-

ant to Chevron.

The Seventh Circuit’s misapplication of Supreme

Court precedent creates an apparent conflict with this

Court’s decisions, which is further reason for granting the

writ. See, e.g., United States v. Doe, 465 U.S. 605, 610

(1984); Army & Air Force Exchange Service v. Sheehan,

456 U.S. 728, 733 (1982); Henderson v. Kibbe, 431 U.S.

145, 152 (1977).

The misapplication of Supreme Court precedent began

with the Ninth Circuit’s decision in Pacheco-Camacho uv.

Hood, 272 F.3d 1266 (9th Cir. 2001) (holding that 18

U.S.C. § 3624 is ambiguous and granting deference to the

Bureau of Prisons’ interpretation pursuant to Chevron).

Relying primarily upon Pacheco-Camacho, several other

courts repeated the misapplication of Supreme Court

precedent. See, e.g., Perez-Olivio v. Chavez, 2005 WL

31913 (1st Cir. January 7, 2005) (also refused to apply the

rule of lenity after determining that 18 U.S.C. § 3624 is

not a criminal statute); Brown v. Hemmingway, 53 Fed.

Appx. 338, 2002 WL 31845147 (6th Cir. 2002) (unpub-

lished decision); Williams v. Lammana, 20 Fed. Appx. 360,

2001 WL 1136069 (6th Cir. 2001) (unpublished decision).

However, some recent district court cases have come to the

opposite conclusion after finding fault with the appellate

courts’ statutory interpretation and Chevron analysis.

Williams v. Dewalt, 351 F. Supp.2d 412 (D. Md. 2004); see

also, Moreland v. Federal Bureau of Prisons, No. CIV. A.

H-04-3658, 2005 WL 757154 (S.D. Tex. March 30, 2005).

Under the two-step test adopted in Chevron U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837 (1984), a court first must examine the statute at issue

for ambiguity using the “traditional tools of statutory

construction.” Chevron, 467 U.S. at 842. At that first step,

the Seventh Circuit erroneously determined that 18 U.S.C.

§ 3624(b)(1) is ambiguous. The plain language of the

statute is clear. And Congress was clear that it intended in

§ 3624(b)(1) to base sentencing credit on the “term of

imprisonment,” not on time served. Where Congress’

intent is clear, “that is the end of the matter.” Chevron,

467 U.S. at 837. In the Seventh Circuit below, as well as in

the other courts of appeals that have addressed the issue,

§ 3624(b\(1) was found to be ambiguous after only a

“cursory nod to the rules of statutory construction and

deferring to agency interpretation.” Williams, 351

F.Supp.2d at 415.

If the plain language of § 3624(b)(1) has its ordinary

and natural meaning as required by Bailey v. United

States, 516 U.S. 137, 145 (1995), and many other deci-

sions, the statute grants prisoners a credit “of up to 54

days at the end of each year of the prisoner’s term of

imprisonment” that was imposed. The Seventh Circuit

erred in determining that the good time credit must be

based on the time served rather than on the term of

imprisonment imposed because the statute clearly states

even prior to the amount of credit available that the credit

applies to sentences “beyond the time served.” See 18

U.S.C. § 3624(b)(1).

Moreover, because the good time credit applies to

“each year of the term of imprisonment,” the statue means

that the credit is based upon the term imposed, as it

means twice or thrice in the same sentence creating the

credit. The rules of statutory construction require that

“identical words used in different parts of the same act are

intended to have the same meaning.” Sorenson v. Secre-

tary of Treasury, 475 U.S. 851, 860 (1986). Here, “term of

imprisonment” is used four times in the same subsection

of a statute within an act. The first and second time it

appears, Congress was absolutely clear that “term of

imprisonment” means term imposed because it qualifies

“term of imprisonment” with the phrase “beyond time

served.” The rules of statutory construction compel the

conclusion here that Congress intended “term of impris-

onment” to have an identical meaning later in the same

subsection.

The legislative history of the statute supports Peti-

tioner’s interpretation. That history demonstrates that

there is no windfall conferred on prisoners by applying the

good time credit to the term of imprisonment rather than

to the time served. The legislative intention was to have

prisoners serve 85% of their sentences. See H.R. REP. 99-

614 at 9 n.4. Allowing for 54 days of good time credit,

rounded off, means that well-behaved prisoners serve 85%

of the sentence imposed. On the other hand, the BOP’s

interpretation allows for 47 days of good time credit, which

would require the same prisoner to serve approximately

87.2% of the sentence imposed. Further, it reasonably can

be inferred that Congress included language “beyond the

time served” in 18 U.S.C. § 3624(b)(1) to prevent the BOP

from basing the good time credit on the time served,

rather than on the sentence imposed.

Moreover, even if Congress’ language and intent were

not clear and the statute is ambiguous, the Seventh

Circuit erred in granting Chevron deference because the

rule of lenity requires that, in the context of criminal

punishment, any ambiguity should be resolved to favor

liberty. See United States v. Bass, 404 U.S. 336, 347

(1971). “To the extent there remains any ambiguity in the

statute after considering its most natural linguistic mean-

ing and the legislative history, the rule of lenity eliminates

all doubt.” Moreland, 72005 WL 757154 at *7. The rule of

lenity is a common law rule of statutory construction and

this Court generally has applied the common law rules of

statutory construction, such as the rule of lenity, to resolve

ambiguity before applying the Chevron doctrine. See, e.g.,

INS v. St. Cyr, 533 U.S. 289, 320 n.45 (2001); see, also,

Leocal v. Ashcroft, 125 S.Ct. 377, 384 n.8 (2004); Clark v.

Martinez, 125 S.Ct. 716, 724 (2005).

oma

Finally, the Seventh Circuit erred when it determined

that BOP Program Statement 5880.28 and the BOP

regulation found at 28 C.F.R. § 523.20 were fungible and

then, because the regulation was adopted pursuant to

notice and comment rulemaking, awarded full Chevron

deference to the BOP’s program statement on § 3624(b)(1).

The only way to understand how the BOP came upon 47

days as the amount of good time allowed by statute is to

read the complex mathematical formula contained in the

257-page Program Statement. The 47-day figure cannot be

determined from the regulation. Accordingly, the Program

Statement, as a policy, and not the regulation is the

operative agency authority for determining the maximum

good time credit allowed. The Program Statement was not

adopted pursuant to notice and comment rulemaking. This

Court clearly has determined that policy statements are

not entitled to Chevron deference. See Christianson v.

Harris County, 529 U.S. 576 (2000); United States v. Mead

Corp., 533 U.S. 218 (2001).

CONCLUSION

Petitioner prays that the Court grant a writ of certio-

rari and set this case for briefing and plenary considera-

tion.

May, 2005.

Respectfully submitted,

YANCEY L. WHITE, Petitioner

DEAN A. STRANG

Counsel of Record

THOMAS G. WILMOUTH

BRIAN T. FAHL

FEDERAL DEFENDER SERVICES OF

WISCONSIN, INC.

517 East Wisconsin Avenue,

Suite 182

Milwaukee, Wisconsin 53202

[414] 221-9900

App. 1

390 F.3d 997

United States Court of Appeals,

Seventh Circuit.

Yancey Lamarr WHITE, Petitioner-Appellee,

Joseph SCIBANA, Respondent-Appellant.

No. 04-2410.

Argued Sept. 9, 2004.

Decided Dec. 2, 2004.

Rehearing En Banc Denied Feb. 9, 2005.

As Amended Feb. 14, 2005.

Emily M. Feinstein (argued), Quarles & Brady, Madi-

son, WI, for Petitioner-Appellee.

Steven Pray O’Connor (argued), Office of the United

States Attorney, Madison, WI, for Respondent-Appellant.

Before EASTERBROOK, EVANS and SYKES, Circuit

Judges.

SYKES, Circuit Judge.

This appeal presents a question of statutory inter-

pretation involving the calculation of “good-time credit”

for prisoners serving federal sentences. Under the good-

time statute, an eligible prisoner may receive credit

“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

the Bureau of Prisons’ determination that “during that

year, the prisoner has displayed exemplary compliance

with institutional disciplinary regulations.” 18 U.S.C.

§ 3624(b)(1). Yancey White’s behavior has been exemplary

in all but one of his years behind bars: after serving eight

years of his ten-year sentence for distribution of cocaine

App.2 ——

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 im-

posed 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 unambigu-

ously 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 calcula-

tion, White believes he is entitled to be released on Decem-

ber 23, 2004. He petitioned for relief under 28 U.S.C.

§ 2241. The district court agreed with White’s interpreta-

tion of § 3624(b)(1) and ordered his release date recalcu-

lated. 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 distrib-

uting cocaine base. He is serving that sentence at the

Federal Correctional Institution in Oxford, Wisconsin. In

App. 3

March 2003 White filed a request for administrative

remedy asserting that his good-time credit had been

miscalculated. He claimed entitlement to fifty-four days of

good-time credit 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 multi-

plying 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

imprisonment’ 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

pertinent part:

App. 4

(a) Date of release. —- A prisoner shall be re-

leased by the Bureau of Prisons on the date of

the expiration of the prisoner’s term of impris-

onment, less any time credited toward the ser-

vice of the prisoner’s sentence as provided in

subsection (b).

(b) Credit toward service of sentence for satis-

factory behavior. —

(1) [A] prisoner who is serving a term of impris-

onment of 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 the prisoner’s

term of imprisonment, beginning 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.

[Clredit for the last year or portion of a year of the

term of imprisonment shall be prorated and cred-

ited within the last six weeks of the sentence.

18 U.S.C. § 3624 (emphasis added).

The Bureau has promulgated a rule reflecting its

interpretation 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 addressing the problem of calculating good-time

credit on sentences of a year and a day and provides

App. 5

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

administration 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 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.’

When an agency interprets a statute it administers,

judicial 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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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

* 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.

App. 6

the end of the matter; for the court, as well as the agency,

must give effect to the unambiguously expressed intent of

Congress.” Jd. at 842-43, 104 S.Ct. 2778. 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, 104 S.Ct. 2778.

Not all agency interpretations of ambiguous statutes

are entitled to full Chevron deference; some are treated as

persuasive only, based upon the form, content, circum-

stances, and reflected expertise of the interpretation.

United States v. Mead Corp., 533 U.S. 218, 227-28, 238,

121 S.Ct. 2164, 150 L.Ed.2d 292 (2001), discussing

Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161,

89 L.Ed. 124 (1944). Full Chevron deference is limited to

cases in which “it appears that Congress delegated author-

ity 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 author-

ity,” as when the agency engages in adjudication or notice-

and-comment rulemaking. Mead, 533 U.S. at 227, 121

S.Ct. 2164; U.S. Freightways Corp. v. Comm’r. of Internal

Revenue, 270 F.3d 1137, 1141 (7th Cir.2001).

Other agency interpretations issued pursuant to

comparable authority and procedure may also claim

Chevron deference, see Mead, 533 U.S. at 230-31, 121 S.Ct.

2164; 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

App. 7

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 ambi-

guities 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.’

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 (b). The phrase “term of imprisonment” as used

in subsection (a) must refer to the expiration of the sen-

tence 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 formula contained in Program Statement 5880.28 is prem-

ised 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 “sentence imposed” —

interpretation of the good-timé statute is contained in 28 C.FR.

§ 523.20. Because the Program Statement is consistent with the

regulation, we do not further address the Program Statement.

App. 8

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 be-

cause 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 imprison-

ment” at issue here — in the part of the statute that de-

scribes 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 exemplary. The statute thus estabiishes 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.

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

App. 9

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 retrospective annual assessment and award of

credit appears to be at the core of what the good-time

statute is all about.’ 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.

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, 115 S.Ct. 1061, 131 L.Ed.2d 1

(1995), and Firstar Bank, N.A. v. Faul, 253 F.3d 982, 990

* The warden points to the language of the prior good-time statute

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.

App. 10

(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, 540 U.S. 581, 124 S.Ct. 1236, 1238, 157

L.Ed.2d 1094 (2004) (quoting Atlantic Cleaners & Dyers v.

United States, 286 U.S. 427, 433, 52 S.Ct. 607, 76 L.Ed.

1204 (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 Merchants 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 harmonixa:ies. But it is impossible to make sense

of 28 U.S.C. § 3624 while giving the phrase “term of

imprisonment” one meaning throughout. “Term of impris-

onment” can only mean “sentence imposed” when used in

subsection (a) and in the eligibility language of subsection

(b); attributing 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 imprisonment” is based on the sentence imposed

App. 11 :

or the time served in prison. We defer to the Bureau’s

reasonable interpretation 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.

App. 12

314 FSupp.2d 834

United States District Court,

W.D. Wisconsin.

Yancey L. WHITE, Petitioner,

Joseph SCIBANA,’ Respondent.

No. 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

CRABB, Chief Judge.

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 impres-

sion in this circuit: whether § 3624(b) requires the Bureau

of Prisons to calculate an inmate’s good conduct time on

the basis of the inmate’s sentence rather than on the time

he has actually served. In an order dated 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

* In his petition, petitioner identifies the respondent as “Warden

Scibana.” It has come to my attention that respondent’s full name is

“Joseph Scibana.” I have corrected the caption accordingly.

App. 13

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 the calculation of good conduct

time, Bell v. United States, 48 F.3d 1042 (8th Cir.1995),

that petitioner has properly exhausted his administrative

remedies, Clemente v. Allen, 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, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). After

considering respondents arguments supporting the

bureau’s interpretation, I conclude that § 3624(b) is

unambiguous: “term of imprisonment” means “sentence

imposed.” Therefore, the bureau must calculate an in-

mate’s good conduct time on the basis of his sentence

rather than on the time he has served. In other words, if a

prisoner is sentenced to a 10-year term of imprisonment,

he may earn up to 540 days of good conduct time in the

absence of a disciplinary infraction. The bureau may not

limit the application of good conduct time to the amount of

time the inmate has already served. Accordingly, I will

grant the petition for a writ of habeas corpus and 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 at Oxford, Wisconsin. In August

1996, the United States District Court for the Southern

District of Illinois sentenced petitioner to 120 months in

App. 14

prison after he was convicted of three counts of distribut-

ing cocaine base.

In March 2003, petitioner filed a request for an

administrative remedy, arguing that under 18 U.S.C.

§ 3624, he was to receive “54 days [of good conduct time]

for every year that [he] was given by the sentencing

judge.” Petitioner believed his projected release date

should be December 2004 rather than February 2005 as

the Bureau of Prisons had calculated. The warden denied

petitioner’s request for an administrative remedy, explain-

ing that

54 days of GCT [good conduct time] may be

earned for each full year served on a sentence 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 cal-

culate your GCT credits by 120 months by 54

days. Applying this formula, you are ertitled to

470 days GCT for a 120-month sentence.

The regional director affirmed the warden’s decision,

writing that § 3624(b) “mandates GCT be 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, stating that

“the Bureau of Prisons computed your sentence as re-

quired 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 computation for petitioner. After

subtracting 10 days of good conduct time for a rule viola-

tion in April 2003, staff calculated that petitioner’s pro-

jected release date was March 3, 2005.

App. 15

DISCUSSION

The issue in this case is whether the Bureau of Pris-

ons’ method for calculating good conduct time is consistent

with 18 U.S.C. § 3624(b). That section provides:

(b) Credit toward service of sentence for satis-

factory behavior. —

(1) Subject to paragraph (2), a prisoner who is

serving a term of imprisonment of 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, be-

yond the time served, of up to 54 days at the end

of each year of the prisoner’s term of imprison-

ment, beginning at the end of the first year of the

term .... Subject to paragraph (2), credit for the

last year or portion of a year of the term of im-

prisonment shall be prorated and credited within

the last six weeks of the sentence.

18 U.S.C. § 3624(b)(1).

The bureau has promulgated a regulation interpreting

this provision as awarding good time credit on the basis of

“each year served.” 28 C.F.R. § 523.20. In Program State-

ment 5880.28, the bureau has set forth the formula it uses

to calculate good conduct time. Under the bureau’s for-

mula, an inmate that receives a sentence of one year and

one day can earn up to 47 days of good conduct time rather

than 54 days.

When a court reviews an agency’s interpretation of a

federal statute, the threshold question is whether the

interpretation is entitled to deference. The Supreme Court

has applied varying levels of deference depending on the

context of the interpretation. E.g., Alaska Department of

App. 16

Environmental Conservation v. EPA, 540 U.S. 461, 124

S.Ct. 983, 157 L.Ed.2d 967 (2004) (internal guidance

memoranda entitled to “respect” but not “dispositive

force”); Yellow Transportation, Inc. v. Michigan, 537 U.S.

36, 45, 123 S.Ct. 371, 154 L.Ed.2d 377 (2003) (regulation

promulgated after notice and comment entitled to highest

level of deference when Congress has expressly authorized

agency to promulgate rules). Regardless of the context of

the interpretation, the agency is entitled to no deference if

Congress has expressed its intent unambiguously in the

statute. FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120, 125-26, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000).

Agencies may fill gaps in ambiguous statutes; they may

not contradict a statute’s plain language. 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 found to yield no clear

sense of congressional intent.” General Dynamics Land

Systems, Inc. v. Cline, 540 U.S. 581, 124 S.Ct. 1236, 1248,

157 L.Ed.2d 1094 (2004).

In the December 22, 2003 order, I concluded that the

pivotal clause in § 3624(b) is the one stating that an

inmate may earn up to 54 days of good conduct time “at

the end of each year of the prisoner’s term of imprison-

ment.” That clause raised the question whether the phrase

“term of imprisonment” means “sentenced imposed” or

“time served.” If “term of imprisonment” refers to the

sentence, an inmate’s maximum potential good conduct

time could be calculated by multiplying 54 days by the

number of years in the sentence. In this case, 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

wad BOY.

App. 17

time served, the number of good time credits that could be

earned would be reduced and a more complicated calcula-

tion would be required because an inmate that earns good

time will not actually serve his full sentence.

As an initial matter, respondent challenges the

conclusion that the case turns on an interpretation of

“term of imprisonment.” He argues that the phrase estab-

lishes only “which federal inmates are eligible to earn good

time credits against their sentences in the discretion of the

Bureau.” Resp.’s Br., dkt. # 15, at 9. Respondent does not

develop this argument and 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 also that 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 eligible to receive good

conduct time for each year of his sentence rather than for

each year he has served. Thus, I adhere to the conclusion

in the December 22 order that the bureau has no authority

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 American Heritage Dictionary of

the English Language 175 (4th ed.2000) (defining “term” to

mean both “[a] limited period of time” and “a period of

time that is assigned to a person to serve”). 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, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991).

A corollary to this rule is that identical words used in

App. 18

different parts of the same statute are presumed to have

the same meaning. Gustafson v. Alloyd Co., 513 U.S. 561,

570, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995).

The phrase “term of imprisonment” is used several

times in § 3624. None of the other uses supports a “time

served” interpretation of “term of imprisonment” and

respondent 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

expiration of the prisoner’s term of imprisonment, less any

time credited ....” This sentence can make sense only if a

term of imprisonment is another way of saying the sen-

tence imposed. If “term of imprisonment” means only the

time actually served, there would be no need to subtract

“time credited” to determine the release date because good

conduct time would already be taken into account. This

sentence is in essence a calculation for time served: Sen-

tence imposed minus good time credited equals time

served. There is no other way to read the provision.

Similarly, the first sentence of § 3624(b) provides that

any “prisoner who is serving a 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 impris-

onment”). Again, this portion of the 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 had intended “term of imprison-

ment” 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 “time served” interpreta-

tion of “term of imprisonment” in this clause would make

determining eligibility for good conduct time a perplexing

process when the sentence is just over one year. For

oe bea ARENA IE

App. 19

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 available when the sentence is

more than a year. See Program Statement 5880.28, Sen-

tence Computation Manual -— CCA (applying good time

credit calculation to sentence of one year and one day),

attached to Aff. of Christine Hine, dkt. # 15. Respondent

does not explain why “term of imprisonment” should mean

“sentence impose” 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 a single statute may be

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 the word

“age” uniformly throughout the Age Discrimination in

Employment Act because “age” has “several commonly

understood meanings among which a speaker can alter-

nate in the course of an ordinary conversation, without

being coniused or getting confusing.” Jd. at 1246. Unlike

the word “age,” the phrase “term of imprisonment” is not a

common term in casual 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, the same act in which § 3624

was included. Throughout these statutes, Congress has

uniformly used “term of imprisonment” as a synonym for

“sentence.” E.g., 18 U.S.C. § 3147 (“A term of imprison-

ment imposed pursuant to this section shall be consecutive

to any other sentence of imprisonment.”); 18 U.S.C.

(Bc 8 oss ee rece a a

App. 20

§ 3156(a)(3) (“The term ‘felony means an offense punish-

able 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 of imprisonment, the maximum of the range

established for such a term shall not exceed the minimum

of that range by more than 25 per centum.”). It is fair to

assume that if Congress had intended to make the calcula-

tion for good conduct time contingent on time. served

rather than the sentence imposed, it would not have used

a phrase with such a clear and consistent 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 the United States

Code, then the courts assume that it has that same mean-

ing 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 a penal or correc-

tional institution for a definite term other than

for life, whose record of conduct shows that he

has faithfully observed all the rules and has not

been subjected to punishment, shall be entitled

—_. to a deduction from the term of his sentence be-

ginning with the day on which the sentence

commences to run, as follows ...

App. 21

According to respondent, § 4161 required the bureau

to calculate an inmate’s good conduct time on the basis of

his sentence because the statute stated expressly that an

inmate who behaves “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 “to provide 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 as imposed 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 to change this language in the

new version of the siatute, but this argument is not

persuasive. Replacing “sentence” with “term of imprison-

ment” 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

sentence to calculate good conduct time supports a conclu-

sion that Congress would have been more explicit if it had

intended to adopt a different policy. Firstar Bank, 253 F.3d

at 988 (“The courts presume that Congress will use clear

language if it intends to alter an established understand-

ing about what a law means; if Congress fails to do so,

courts presume that the new statute has the same effect

as the older version.”). (Petitioner also cites statements by

Senator Joseph Biden, who co-authored the Comprehen-

sive Crime Control Act of 1984, that § 3624(b) was in-

tended 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). How-

ever, because both of these statements were made well

App. 22

after § 3624 was enacted, their probative value is limited.

Sullivan v. Finkelstein, 496 U.S. 617, 628 n. 8, 110 S.Ct.

2658, 110 L.Ed.2d 563 (1990) (noting “difficulties inherent

in relying on subsequent legislative history”); St. Francis

Hospital Center v. Heckler, 714 F2d 872, 880 (7th

Cir.1983) (“[P]ost enactment history is 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 held explicitly that § 3624(b)

requires the bureau to calculate good conduct time on the

basis of the sentence imposed. However, as petitioner

points out, the court of appeals has assumed that an

inmate may be able to deduct up to 15% of his or her

sentence by earning good conduct time (54 days is ap-

proximately 15% of one year). E.g., United States v. Mar-

tin, 100 F.3d 46, 47 (7th Cir.1996) (assuming that inmate

could earn 4.5 years of good conduct time 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 good

conduct time by up to 14.7%).

One court has determined that the meaning of “term

of imprisonment” in § 3624 is ambiguous. Pacheco-

Camacho v. Hood, 272 F.3d 1266 (9th Cir.2001). However,

in coming to this conclusion, the court did not consider

how the phrase was used in the first sentence of § 3624(a)

and the first sentence of § 3624(b)(1), as well as in the rest

of the criminal code. Moreover, the court did not take into

account the history of the statute showing that Congress

intended good conduct time to be deducted from an in-

mate’s sentence. 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

App. 23

year of the term of imprisonment shall be prorated and

credited within the last six weeks of the sentence.” The

court concluded that a “sentence imposed” interpretation

of “term of imprisonment” would be “inconsistent” with a

requirement to prorate good time credits during the last

year of the term. Pacheco-Camacho, 272 F.3d at 1268-69.

I respectfully disagree with the conclusion that

§ 3624(b)(1) is ambiguous because it requires the last year

of the term to be prorated. This requirement would sup-

port the bureau’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, there is

nothing inconsistent between prorating good time for the

last year of the term and interpreting “term of imprison-

ment” to mean the sentence. Regardless of the interpreta-

tion of “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 the correct

one. If one assumes that “a year” of the “term of impris-

onment” is a year of the sentence 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

METER EINE CHAPTERS Roto mE Rn ARIN aed By) 2

App. 24

= 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, 120 S.Ct.

1114, 146 L.Ed.2d 39 (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, the Supreme Court recognized only that under

§ 3624(e), a “term of supervised release” cannot begin until

the inmate has been released from confinement. Johnson,

529 U.S. at 58-59, 120 S.Ct. 1114. It did not consider the

correct interpretation of the phrase “term of imprison-

ment” or suggest 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 in Pacheco-Camacho: adopting petitioner’s

interpretation of § 3624(b) would be contrary to Congress’s

intent to give the bureau discretion in awarding good

conduct time. He relies on Lopez v. Davis, 531 U.S. 230,

121 S.Ct. 714, 148 L.Ed.2d 635 (2001), in which the

Supreme Court concluded that the bureau had discretion

under 18 U.S.C. § 3621(e)(2)(B) to deny a sentence reduc-

tion because the statute provides that the bureau “may”

reduce sentences under particular circumstances. Respon-

dent 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

App. 25

conduct time when it concludes that the inmate’s behavior

does not warrant it. Petitioner acknowledges that discre-

tion. He is not challenging the bureau’s decision to disal-

low 10 days of good conduct time after he was found guilty

of a rule violation. However, discretion in granting good

conduct time does not translate into discretion for choos-

ing the method for calculating good conduct time. The

statute does not say that the bureau “may” calculate good

conduct time in any way it wants. Rather, the statute uses

the phrase “term of imprisonment” as the basis on which

good conduct time must be calculated.

As noted above, an agency does not have discretion to

interpret a statute that is unambiguous. Because I have

concluded that Congress had the unambiguous intent to

define the phrase “term of imprisonment” to mean “sen-

tence imposed,” I conclude that the bureau did not have

authority to promulgate a regulation that uses “time

served” as the basis for 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.

App. 26

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

February 9, 2005

HON. FRANK H. EASTERBROOK, Circuit Judge

HON. TERENCE T. EVANS, Circuit Judge

-HON. DIANE S. SYKES, Circuit Judge

No. 04-240

YANCEY L. WHITE, Appeal from the United

Petitioner-Appellee, States District Court for

the Western District of

Wisconsin.

JOSEPH SCIBANA,

Respondent-Appellant. No. 03 C 581

Barbara B. Crabb,

Chief Judge.

ORDER

On consideration of the petition for rehearing en banc,

no judge in active service has requested a vote on the

petition for rehearing en banc and all of the judges on the

original panel have voted to deny rehearing. It is therefore

ordered that rehearing en banc is DENIED.

App. 27

18 U.S.C. § 3624. Release of a prisoner

(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). If the date for a prisoner’s release falls

on a Saturday, a Sunday, or a legal holiday at the place of

confinement, the prisoner may be released by the Bureau

on the last preceding weekday.

(b) Credit toward service of sentence for satisfac-

tory behavior. —

(1) Subject to paragraph (2), a prisoner who is serv-

ing a term of imprisonment of 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 the prisoner’s

term of imprisonment, beginning 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 institu-

tional disciplinary regulations. Subject to paragraph

(2), if the Bureau determines that, during that year,

the prisoner has not satisfactorily complied with such

institutional regulations, the prisoner shall receive no

such credit toward service of the prisoner’s sentence

or shall receive such lesser credit as the Bureau de-

termines to be appropriate. In awarding credit under

this section, the Bureau shall consider whether the

prisoner, during the relevant period, has earned, or is

making satisfactory progress toward earning, a high

school diploma or an equivalent degree. Credit that

* So in original. Probably should be followed by a comma.

)

;

has not been earned may not later be granted. Subject

to paragraph (2), credit 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.

(2) Notwithstanding any other law, credit awarded

under this subsection after the date of enactment of

the Prison Litigation Reform Act shall vest on the

date the prisoner is released from custody.

(3) The Attorney General shall ensure that the Bu-

reau of Prisons has in effect an optional General Edu-

cational Development program for inmates who have

not earned a high school diploma or its equivalent.

(4) Exemptions to the General Educational Devel- ~ |

opment requirement may be made as deemed appro- F

priate by the Director of the Federal Bureau of

Prisons.

to the extent practicable, assure that a prisoner serving a

term of imprisonment spends a reasonable part, not to

exceed six months, of the last 10 per centum of the term to

be served under conditions that will afford the prisoner a

reasonable opportunity to adjust to and prepare for the

prisoner’s re-entry into the community. The authority

provided by this subsection may be used to place a pris-

oner in home confinement. The United States Probation

System shall, to the extent practicable, offer assistance to

a prisoner during such pre-release custody.

App. 28

(d) Allotment of clothing, funds, and transporta-

tion. — Upon the release of a prisoner on the expiration of

the prisoner’s term of imprisonment, the Bureau of Pris-

ons shall furnish the prisoner with —

App. 29

(1) suitable clothing;

(2) an amount of money, not more than $500, de-

termined by the Director to be consistent with the

needs of the offender and the public interest, unless

the Director determines that the financial position of

the offender is such that no sum should be furnished;

and

(3) transportation to the place of the prisoner’s con-

viction, to the prisoner’s bona fide residence within

the United States, or to such other place within the

United States as may be authorized by the Director.

(e) Supervision after release. — A prisoner whose

sentence includes a term of supervised release after

imprisonment shall be released by the Bureau of Prisons

to the supervision of a probation officer who shall, during

the term imposed, supervise the person released to the

degree warranted by the conditions specified by the

sentencing court. The term of supervised release com-

mences on the day the person is released from imprison-

ment and runs concurrently with any Federal, State, or

local term of probation or supervised release or parole for

another offense to which the person is subject or becomes

subject during the term of supervised release. A term of

supervised release does not run during any period in

which the person is imprisoned in connection with a

conviction for a Federal, State, or local crime unless the

imprisonment is for a period of less than 30 consecutive

days. No prisoner shall be released on supervision unless

such prisoner agrees to adhere to an installment schedule,

not to exceed two years except in special circumstances, to

pay for any fine imposed for the offense committed by such

prisoner.

Swine

App. 30

(f) Mandatory functional literacy requirement. -

(1) The Attorney General shall direct the Bureau of

Prisons to have in effect a mandatory functional liter-

acy program for all mentally capable inmates who are

not functionally literate in each Federal correctional .

institution within 6 months from the date of the en-

actment of this Act.

(2) Each mandatory functional literacy program shall

include a requirement that each inmate participate in

such program for a mandatory period sufficient to pro-

vide the inmate with an adequate opportunity to

achieve functional literacy, and appropriate incentives

which lead to successful completion of such programs

shall be developed and implemented.

(3) As used in this section, the term “functional lit-

eracy” means —

(A) an eighth grade equivalence in reading and

mathematics on a nationally recognized stan-

dardized test;

(B) functional competency or literacy on a na-

tionally recognized criterion-referenced test; or

(4) Non-English speaking inmates shall be required

to participate in an English-As-A-Second-Language

program until they function at the equivalence of the

eighth grade on a nationally recognized educational |

achievement test.

shall have authority to grant waivers for good cause as

(5) The Chief Executive Officer of each institution

determined and documented on an individual basis.

App. 31

28 C.F.R. § 523.20 Good conduct time.

<For statute(s) affecting validity, see: 5 USCA § 301; 18

USCA §§ 3568, 3624; 28 USCA §§ 509, 510.>

Pursuant to 18 U.S.C. 3624(b), as in effect for offenses

committed on or after November 1, 1987 but before April

26, 1996, an inmate earns 54 days credit toward service of

sentence (good conduct time credit) for each year served.

This amount is prorated when the time served by the

inmate for the sentence during the year is less than a full

year. The amount to be awarded is also subject to discipli-

nary disallowance (see Tables 3 through 6 in § 541.13 of

this chapter). Pursuant to 18 U.S.C. 3624(b), as in effect

for offenses committed on or after April 26, 1996, the

Bureau shall consider whether the inmate has earned, or

is making satisfactory progress (see § 544.73(b) of this

chapter) toward earning a General Educational Develop-

ment (GED) credential before awarding good conduct time

credit.

(a) When considering good conduct time for an inmate

serving a sentence for an offense committed on or after

April 26, 1996, the Bureau shall award:

(1) 54 days credit for each year served (prorated

when the time served by the inmate for the sentence

during the year is less than a full year) if the inmate

has earned or is making satisfactory progress toward

earning a GED credential or high school diploma; or

(2) 42 days credit for each year served (prorated

when the time served by the inmate for the sentence

during the year is less than a full year) if the inmate

has not earned or is not making satisfactory progress

toward earning a GED credential or high school di-

ploma.

App. 32

(b) The amount of good conduct time awarded for the

year is also subject to disciplinary disallowance (see Tables

3 through 6 in § 541.13 of this chapter).

sibanibbiiee

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.