Opposition Brief — Moreland v. United States

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No. 92-458

In the Supreme Court of the Giuted States

OCTOBER TERM, 1992

ROBERT SCOTT MORELAND, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

J. DOUGLAS WILSON

Attorney

Department of Justice

Washington, D.C. 205380

(202) 514-2217

QUESTION PRESENTED

Whether, under 18 U.S.C. 3585, a federal inmate is en-

titled to credit against his sentence for time spent in a

community treatment center as a condition of pretrial

release on bond.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Braun v. Scott:

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Be ee GUE EEE Gat. ROMER ac cinecnccccscctonicodentxnsscnsane 6

Brown v. Rison, 895 F.2d 533 (9th Cir. 1990) ........... 6

Mieles v. United States, 895 F.2d 887 (2d Cir. 1990) ..... 6

Mills v. Taylor, 967 F.2d 1397 (9th Cir 1992) ......00..... 6

Pinedo v. United States, 955 F.2d 12 (5th Cir. 1992) .... 5

Ramsey v. Brennan, 878 F.2d 995 (7th Cir. 1989) ......... 6

United States v. Becak, 954 F.2d 386 (6th Cir. 1992) ... 5

United States v. Edwards, 960 F.2d 278 (2d Cir.

RCL cDaeetr as ucecl tues Cale dadeen alah icncadeehs head hagesouncsasien 6

United States v. Insley, 927 F.2d 185 (4th Cir. 1991) .... 5

United States v. Smith, 869 F.2d 835 (5th Cir. 1989) ... 6

United States v. Wilson, 112 S. Ct. 1351 (1992) ............ 5, 6

United States v. Woods, 888 F.2d 653 (10th Cir. 1989),

cert. denied, 494 U.S. TOOG (1GGO) .......cccccccccscccccsccccss 5, 7

United States v. Zackular, 945 F.2d 423 (Ist Cir.

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Villaume v. United States Dep't of Justice, 804 F.2d 498

(Sth Cir. 1986), cert. denied, 481 U.S. 1022 (1987) ......... 6

Constitution, statutes and regulations:

U.S. Const. Amend. V (Equal Protection Clause) ........... 3

Bail Reform Act of 1984, 18 U.S.C. 3141 ef seq. ............... 3

ys _ TRAC ESERIES SSSI AT ee Lar AA 4

(111)

Statutes and regulations-

IV

-~Continued: Page

Sentencing Reform Act of 1984, Pub. L. No. 98-478, Tit.

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Miscellaneous:

Webster’s Third New International Dictionary

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In the Supreme Court of the Cinited States

OCTOBER TERM, 1992

No. 92-458

ROBERT Scott MORELAND, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals sitting en bane

(Pet. App. la-29a) is reported at 968 F.2d 655. The opin-

ion of the court of appeals panel (Pet. App. 30a-45a) is re-

ported at 932 F.2d 690.

JURISDICTION

The judgment of the court of appeals was filed on June

50, 1992. The petition for a writ of certiorari was filed on

September 14, 1992. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

STATEMENT

1. On July 26, 1989, a grand jury in the District of

Minnesota indicted petitioner on two counts of bank

fraud, in violation of 18 U.S.C. 1344, and two counts of us-

ing false social security cards, in violation of 18 U.S.C.

408(g)(2). He was taken into custody on July 28, 1989, and

held until September 5, 1989, when he was released on

bond. As a condition of his release, petitioner was or-

dered to reside at the Reentry Services Community

Treatment Center (RSCTC). Petitioner resided at

RSCTC from September 5, 1989, until March 12, 1990.

Pet. App. 2a-8a, 31a.

2. On October 30, 1989, petitioner pleaded guilty to

one count of fraud. On February 2, 1990, the district

court sentenced him to 18 months’ imprisonment. After

he began serving his sentence, petitioner filed a request

with the Bureau of Prisons seeking credit for the 150

days he spent at RSCTC. The Bureau denied the re-

quest on the ground that during that period petitioner

had not been in “official detention” within the meaning of

18 U.S.C. 3585(b), the statute governing sentence credit

for periods a defendant has spent in detention prior to

sentencing. Pet. App. 3a, 32a; Pet. 2, 4-5.

Petitioner then filed a petition under 28 U.S.C. 2255,

alleging that he was denied the equal protection of the

law by the Bureau’s policy of denying sentence credit to

defendants released prior to trial on condition that they

reside at community treatment centers, while granting

credit to defendants completing their sentences at such

centers. The district court denied the motion. It found

that no equal protection violation had occurred because

defendants released pretrial to community treatment

3

centers are not situated similarly to defendants complet-

ing their sentences. Pet. App. 3a-4a.

3. A divided panel of the court of appeals reversed,

holding that the time petitioner spent at the community

treatment center constituted “official detention” within

the meaning of Section 3585. The panel noted that the

Bureau of Prisons (BOP) had defined “official detention”

to exclude periods of pretrial release when the defendant,

as a condition of that release, is required to reside at a

community treatment center. The panel held, however,

that BOP’s interpretation was “unreasonable or con-

trary to considerations of fairness.” Pet. App. 34a-35a.

The court reasoned that “[t]he restrictions placed on

[petitioner] are similar to those placed on jail prisoners

who have work-release privileges, and it cannot be con-

tended that such prisoners are not in ‘official deten-

tion.’” Jd. at 35a.’

In dissent, Judge Magill argued that the majority

erred in failing to defer to the Bureau’s interpretation of

the statute. Judge Magill also argued that the plain

meaning of the term “detention” did not extend to the

kinds of restrictions imposed on petitioner. Judge Magill

concluded that the term “detention” in Section 3585

should be construed in light of the Bail Reform Act of

1984, 18 U.S.C. 1341 et seq., which makes a clear distinc-

tion between release, with or without conditions, and de-

tention. Pet. App. 37a-45a.

4. Sitting en banc, the court of appeals vacated the

panel opinion and affirmed the decision of the district

court. Pet. App. la-29a. The court concluded that, be-

| Because the panel held that petitioner was in “official deten-

tion,” it did not consider whether he had shown that BOP’s denial

of sentence credit violated his rights under the Equal Protection

Clause.

4

cause the phrase “official detention” in the statute was

ambiguous, the court should defer to the interpretation

of BOP, the agency charged with administering the

statute. Jd. at 4a-5a. The court then found that the Bu-

reau had reasonably interpreted the statute to exclude

time spent at a community treatment center as a condi-

tion of release. The court noted that its decision found

support in the decisions of every court of appeals that

had addressed the issue except the Ninth Circuit. The

court also noted that its interpretation of Section 3585

was consistent with the Bail Reform Act of 1984, which

draws a distinction between pretrial release and

detention. Id. at 7a-11la.*

Judge Loken concurred on the ground that the term

“official detention” had the same meaning as the term

“detention” used in the bail statute, 18 U.S.C. 3142.

Judge Loken argued that, because petitioner had not

been detained within the meaning of the bail statute, he

was not in “official detention” under Section 3585. Judge

Heaney dissented. In his view, the term “official deten-

tion” encompassed petitioner’s stay at the community

treatment center.

DISCUSSION

Petitioner asks this Court (Pet. 12-25) to decide

whether 18 U.S.C. 3585 requires BOP to award him

credit against his sentence for time spent at a commu-

nity treatment center as a condition of pretrial release.

We agree with petitioner that the Court should review

that issue.

* The court of appeals also rejected petitioner’s equal protection

claim. Pet. App. 12a-l4a. Petitioner does not raise that claim

before this Court.

On

1. Section 3585, which was enacted as part of the Sen-

tencing Reform Act of 1984, Pub. L. No. 98-473, Tit. I], §

212(a)(2), 98 Stat. 2001, and became effective on November

1, 1987, provides that “[a] defendant shall be given credit

toward the service of a term of imprisonment for any

time he has spent in official detention prior to the date

the sentence commences.” The predecessor to Section

3585, which was codified at 18 U.S.C. 3568 (1982), re-

quired the Attorney General to award federal prisoners

credit toward their sentences for time “spent in custody

in connection with the offense or acts for which sentence

was imposed.” In United States v. Wilson, 112 S. Ct.

1351, 1354-1356 (1992), this Court held that 18 U.S.C.

3585, like Section 3568, delegates authority to the Attor-

ney General, through BOP, to grant credit against a de-

fendant’s sentence for time spent in official detention.

The courts of appeals are divided over whether Section

5585 requires BOP to award credit for periods of resi-

dence in a community treatment center, or “halfway

house,” as a condition of pretrial release on bond. The

Fifth and Tenth Circuits agree with the Eighth Circuit

that Section .3585 does not require BOP to grant credit

against a sentence for the time the defendant has spent

in residence at such a facility as a condition of his

pretrial release. See Pinedo v. United States, 955 F.2d

12, 14 (5th Cir. 1992) (no credit under Section 3585 for pe-

riod of pretrial release spent in a “halfway house”);

United States v. Woods, 888 F.2d 653, 655 (10th Cir. 1989)

(same), cert. denied, 494 U.S. 1006 (1990).* In contrast,

% See also United States v. Becak, 954 F.2d 386, 387-388 (6th

Cir. 1992) (no credit for pretrial home confinement under Section

3585); United States v. Insley, 927 F.2d 185, 186-187 (4th Cir. 1991)

(same); United States v. Zackular, 945 F.2d 423, 425 & n.2 (1st

6

the Ninth Circuit has held that BOP’s interpretation of

Section 3585 to bar the award of sentence credit for a

pretrial period of release to a community treatment cen-

ter is unreasonable and contrary to the statute’s plain

language. Mills v. Taylor, 967 F.2d 1397, 1400 (1992).*

2. We disagree with the Ninth Circuit’s interpreta-

tion of Section 3585, and believe that the court of appeals

correctly resolved the issue in this case. Because BOP

is charged with administering the sentencing credit pro-

vision, see Wilson, 112 S. Ct. at 1354-1355, its interpreta-

tion of Section 3585 is valid unless plainly unreasonable

or inconsistent with the statutory language. The plain

meaning and legislative history of both Section 3585 and

its predecessor, Section 3568, show that Congress did

not intend to mandate the award of sentencing credit to

defendants released prior to trial on condition that they

reside at a community treatment center. “Detention”

means “a holding in custody” or “a period of temporary

custody prior to disposition by a court.” Custody, in

Cir. 1991) (same); United States v. Edwards, 960 F.2d 278, 282-283

(2d Cir. 1992) (same).

4 The courts of appeals have also disagreed about the availabil-

ity of sentence credit under the predecessor statute, Section 3568,

for time spent in a community treatment center, or under other

restrictions, as a condition of pretrial release. Compare Ramsey v.

Brennan, 878 F.2d 995, 996 (7th Cir. 1989) (credit not available);

United States v. Smith, 869 F.2d 835, 837 (5th Cir. 1989) (same);

Mieles v. United States, 895 F.2d 887 (2d Cir. 1990) (same); Vil-

laume v. United States Dep't of Justice, 804 F.2d 498, 499 (8th Cir.

1986) (same), cert. denied, 481 U.S. 1022 (1987), with Brown v. Ri-

son, 895 F.2d 5383, 535-536 (9th Cir. 1990) (credit must be awarded

for period in “halfway house”). The Ninth Circuit granted re-

hearing en banc in Braun v. Scott, 927 F.2d 1516 (1991), to recon-

sider its decision in Brown, but later dismissed Braun as moot. See

938 F.2d 1082 (1991).

7

turn, is defined as “judicial or penal safekeeping * * *

imprisonment or durance of persons or charge of

things.” See Webster’s Third New International Dic-

tionary 559, 616 (unabridged) (1976). Thus, detention

means “custody,” and custody means imprisonment. The

term “official detention,” therefore, may reasonably be

construed to extend only to imprisonment or other strict

confinement or control.

A condition of pretrial release requiring a person to

reside at a community treatment center does not satisfy

that definition. A common sense understanding of

“official detention” does not include residence in the en-

vironment that is ordinarily found. in a community

treatment center. Conditions at community treatment

centers are neither penal in nature nor nearly so re-

strictive as the “full physical incarceration” that marks

confinement in a jail-like setting. See United States v.

Woods, 888 F.2d at 655. Accordingly, it is reasonable for

BOP to interpret “official detention” as not covering pe-

riods of pretrial residence in a community treatment

center.

The inconsistent rulings in the Eighth and Ninth Cir-

cuits regarding the interpretation of Section 3585 will

subject BOP to different requirements in different ju-

risdictions, and will make the amount of time a defendant

must serve on his sentence depend on the place of his

confinement. That difference in treatment will result in

particularly great difficulties in sentence calculation for

prisoners who are moved among several different BOP

facilities during the service of their terms. A uniform

rule is needed. Accordingly, this Court should grant

certiorari to resolve the conflict between the court of ap-

peals’ decision and the Ninth Circuit’s decision in Mills.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

J. DOUGLAS WILSON

Attorney

NOVEMBER 1992