Petition for Writ of Certiorari — Reno v. Koray

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supreme Court, Yy

wr

Iu the Supreme Court of the United States

OCTOBER TERM, 1994

JANET RENO, ATTORNEY GENERAL OF THE

UNITED STATES, ET AL., PETITIONERS

ZIYA K. KORAY

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

DrEw S. Days, III

Solicitor General

JO ANN HARRIS

Assistant Attorney General

MICHAFL R. DREEBEN

Assistant to the Solicitor General

MIGUEL A. ESTRADA

Assistant to the Solicitor General

JOSEPH DOUGLAS WILSON

Attorney

Department of Justice

Washington, D.C. 20530

(202)514-2217

BEST AVAILABLE COPY

QUESTION PRESENTED

Section 3585 of 18 U.S.C. provides that a defendant

generally must “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 question presented is whether a

federal prisoner must receive credit on his sentence

under Section 3585 for time when he was released on

bail pursuant to the Bail Reform Act of 1984.

(I)

II

PARTIES TO THE PROCEEDINGS

In addition to the parties named in the caption, the

following are petitioners in this Court: United States

Bureau of Prisons and Frank Sizer, warden, Allen-

wood Federal Prison Camp, Allenwood, Pennsylvania.

TABLE OF CONTENTS

Page

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1 chincnnceenseuiniabeapeetontenrnes 1

Statutory provision involved ...................-.-..:-.:-:ce-seecceeeeeeees 2

EES BSE SR Se ee 2

Reasons for granting the petition ~..........222.....2..2.....1.----- 5

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SEE EET NEE 29a

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lsc conicinnciithcainaiin aseniantinepsmensinanmntnonbessions 32a

Cd esc itehiadnsiannaseninbedsecanabancosontgeeness 33a

Tee a ssndcaingnaainesembaansocents 45a

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TABLE OF AUTHORITIES

Cases:

Bilgrami v. Turner, No. 93-7793 (8d Cir. July

TS EE 17

Brown V. Rison, 895 F.2d 533 (9th Cir. 1990) ........ 10, 13

Chalamidas Vv. Quinlan, No. CV-91-859-TSZ (W.D.

Wash. Apr. 22, 1992) , dismissed in part, reversed

in part, 981 F.2d 1257 (9th Cir. 1992) ................... 16-17

Chevron U.S.A. Inc. Vv. Natural Resources Defense

Council, Inc., 467 U.S. 8387 (1984) ............--......--- 11, 12

Estate of Cowart v. Nicklos Drilling Co., 112 S. Ct.

EEE RS I a 8

Fraley v. Bureau of Prisons, 1 F.3d 924 (9th Cir.

a saiseesippneenecieneeniedaittini 16

Gozlon-Peretz v. United States, 498 U.S. 395

} 8 eae OE ‘ 9

Grady V. Crabtree, 958 F.2d 874 (9th Cir. 1992) ....... 16

Lahey V. Floyd, 992 F.2d 234 (9th Cir. 1993)........ 16

(111)

Cases—Continued: Page

Malosh v. Crabtree, 758 F. Supp. 620 (D. Or.

PIED. inc. cccdinssseninecisossasschnasachchandentnta uaa cucsbaladaastonsiae ts 16

Martin v. OSHRC, 499 U.S. 144 (1991) ...20002000002.. 12-13

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

SOI siisicsesliiks spied dnestenalbactut bene AAD cise lag thcicbics 11

Mills v. Taylor, 967 F.2d 1397 (9th Cir. 1992)...... 6, 7

Moreland v. United States:

968 F.2d 655 (8th Cir.), cert. denied, 113

a 6,7

Re is is I HE eihicicttiehecesaesccinscabseinindeintmnticinnince 14

National R.R. Passenger Corp. Vv. Boston & Maine

eM ee Be | a ; ewe ereen ee 12

Ochoa v. United States, 819 F.2d 366 (2d Cir.

Be thenasisiciecnicsasth Racanidthdiga Aiea nieces cae hice Li 9

Ortega Vv. United States, 510 F.2d 412 (10th Cir.

UNO +5. rabsshiths ite cb ccmdauenclncebiinee aioe eaaneaaicascabaletaleaiintlas caidas 10

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

NORE ba-Sccinsicss'sUsthaesaushansnsicemibtdbanlaeiemamadabaieciad tate ceaintaieies 6

Polakoff v. United States, 489 F.2d 727 (5th Cir.

GID cknsssiiccaisesnisssceschinsdccettientdiicsctnccceceieliea catsanticeseoduiabidibiitadadasiaee 10

Ramsey V. Brennan, 878 F.2d 995 (7th Cir. 1989).. 11,15

Randali v. Whelan, 938 F.2d 522 (4th Cir. 1991).. 11

Reves Vv. Ernst & Young, 113 S. Ct. 1163 (19938) .... 8

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

cert. denied, 112 S. Ct. 2286 (1992) -.........22... 6, 7

United States v. Browning, 761 F. Supp. 681 (C.D.

OM TIES sai seivsnsiitertoesinsinitnssiaedclesnbsitliesintiaihimatin 16

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

BE icictsicsnnsnicnickeisshtiaitedneils dellnocdtsiiaacgtad dedi cidaiinaiiiital 6

United States v. Freeman, 922 F.2d 13893 (9th

i OD criinteintenoeesinilgpan sili erica ciate aaa: 16

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

sn itccnads sees seabsalibectbcleaiec a ite ates 6

United States v. Peterson, 507 F.2d 1191 (D.C.

8 | | ORE a PT NI Se WE AS ee 9,10

United States v. Shimer, 367 U.S. 374 (1961) ........ 12

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

ON aii ncceeplakimetonones 11

United States v. Wilson, 112 S. Ct. 1351 (1992).... 11,12

Cases—Continued: Page

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

1989), cert. denied, 494 U.S. 1006 (1990) ........... 6

United States v. Zackular, 945 F.2d 423 (1st Cir.

RCTS Aa eS STR eee a For oe ca ORC Rr 6

Statutes:

Act of Sept. 2, 1960, Pub. L. No. 86-691, §1(a),

cat lai 9

Bail Reform Act of 1966, Pub. L. No. 89-465, § 4,

RR TET GTR Pea eee eT ED 9

Bail Reform Act of 1984, Pub. L. No. 98-473, Tit.

Bs A ee I IEE Sicisneih btecdinctatdianccsnscicenininnahnnenios 8

Se a ss csisstesdinbensanonne 7

pe ROR THB OS CON LE) | 17

TB UA BEG Ce) (1) CB) i) nance eccccccccccncesnccnee 7

Bee I I aii inca icctctitncicienaaicnccainesinnn 8

Comprehensive Crime Control Act of 1984, Pub. L.

No. 98-473, Tit. II, 98 Stat. 1976 .................0...2.... 8

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

Po ey a | an 8

aid Oc ar sniciendlaniinpanonabandabennh 2

I ITIED vcseneccecasccnencncincsdacndncncnccascennnsntae 2,8

TT passim

I a cistcnniicvacsrnvananidansonnsinddsonionbnmnenes 9

ee ED oocoenciscecsiesteeencsocerennccnesteanevnadiapanenes 2

18 U.S.C. 8568 (repealed) ............................02020000 4,10, 12,13

Ss casldeetunansanaceindatnd 15

Miscellaneous:

Bureau of Prisons, Program Statement No. 5880.24

2 ea tahlnieneeeneanienainaneins 13

S. Rep. No. 750, 89th Cong., Ist Sess. (1965) ........ 10

In the Supreme Court of the United States

OCTOBER TERM, 1994

No.

JANET RENO, ATTORNEY GENERAL OF THE

UNITED STATES, ET AL., PETITIONERS

Vv.

ZIyA K. KORAY

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

The Solicitor General, on behalf of the Attorney

General of the United States and all other petitioners,

petitions for a writ of certiorari to review the judg-

ment of the United States Court of Appeals for the

Third Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App., infra,

1a-24a) is reported at 21 F.3d 558.

JURISDICTION

The judgment of the court of appeals was entered

on April 25, 1994. A petition for rehearing was de-

nied on June 17, 1994. App., infra, 29a-30a. On

September 8, 1994, Justice Souter extended the time

within which to file a petition for a writ of certiorari

(1)

2

to and including October 15, 1994. App., infra, 31a.

On October 11, 1994, Justice Souter further extended

the time within which to file a petition for a writ of

certiorari to and including November 1, 1994. App.,

infra, 32a. The jurisdiction of this Court is invoked

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

STATUTORY PROVISION INVOLVED

Section 3585 of Title 18 provides:

Calculation of a term of imprisonment

(a) Commencement of sentence.—A sentence

to a term of imprisonment commences on the

date the defendant is received in custody await-

ing transportation to, or arrives voluntarily to

commence service of sentence at, the official de-

tention facility at which the sentence is to be

served.

(b) Credit for prior custody. 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—

(1) as a result of the offense for which

the sentence was imposed; or

(2) as a result of any other charge for

which the defendant was arrested after the

commission of the offense for which the sen-

tence was imposed ;

that has not been credited against another sen-

tence.

STATEMENT

1. On April 23, 1991, respondent was arrested for

laundering monetary instruments, in violation of 18

U.S.C. 1956(a)(1). On June 18, 1991, he entered a

3

guilty plea to that offense in the United States Dis-

trict Court for the District of Maryland. On June 25,

1991, a federal magistrate judge ordered respondent

released on bail pending sentencing on condition that

respondent reside at a Volunteers of America com-

munity treatment center. On October 21, 1991, the

district court sentenced respondent to 41 months’ im-

prisonment. Respondent remained at the Volunteers

of America facility until November 25, 1991, the date

on which he was ordered to surrender for service of

his sentence. Respondent then reported to Allenwood

Federal Prison Camp in Pennsylvania. App., infra,

2a.

Invoking Bureau of Prisons (BOP or Bureau) ad-

ministrative procedures, respondent sought credit

against his sentence for the 150 days that he spent

at the community treatment center between June 25

and November 25, 1991. Relying on its established

policy, BOP declined to grant the requested credit.

After exhausting his administrative remedies, re-

spondent filed a petition for habeas corpus in the

United States District Court for the Middle District

of Pennsylvania seeking credit for the time he spent

in the community treatment center. The district

court denied the petition, finding that respondent’s

stay at the community treatment center did not con-

stitute “official detention” within the meaning of 18

U.S.C. 3585(b), which governs credit for time spent

in detention before the commencement of a sentence.

App., infra, 25a-28a.

2. The court of appeals reversed. App., infra,

la-24a. The court acknowledged that, with the excep-

tion of the Ninth Circuit, “most [courts of appeals]

have concluded that section 3585 * * * does not re-

quire the Bureau to credit presentenced defendants

4

whose bail conditions allowed them to be confined out-

side of Bureau of Prison[s] facilities.” Jd. at 7a.

The court declined, however, to defer to BOP’s view

that the phrase “official detention” in Section 3585 (b)

does not include restrictive conditions of bail. The

court explained that the statutory language need not

be read “as if it provided ‘official detention by the

Attorney General or the Bureau of Prisons,’” since

“there is nothing in the statute which requires or

suggests that a defendant must be under the deten-

tion of the Bureau” and “[a] court may ‘detain’ a

person as ‘official[ly]’ as the Attorney General.”

App., infra, 18a-14a.

The court also found that the Bureau’s interpreta-

tion of the statute was not worthy of deference be-

cause it appears in a “Program Statement” rather

than in “published regulations subject to the rigors

of the Administrative Procedure Act, including public

notice and comment.” App., infra, 9a. Finally, the

court placed considerable weight on its belief that

BOP followed a “functional” approach to the credit

issue under the predecessor statute, 18 U.S.C. 3568

(repealed). According to the court, that functional

analysis focused on the restrictiveness of the bail con-

ditions placed on a defendant, and the prior policy

might have allowed respondent to obtain credit for

his stay at the community treatment center. App.,

infra, 9a-138a.

The court concluded that “ ‘official detention’ for

purposes of credit under 18 U.S.C. § 3585 includes

time spent under conditions of jail-type confinement.”

App., infra, 23a. Although the court did not define

that concept with precision, it believed that its ap-

proach would not be difficult to administer, because

“only a small percentage of federal defendants are

5

released to a halfway house,” and because the Bureau

had experience applying the different but related

functional approach to Section 3585(b) adopted by

the Ninth Circuit. App., infra, 21a-22a. The court

remanded the case to the district court to determine

whether respondent was in “jail-type” confinement

during the time that he was at the community treat-

ment center. Jd. at 24a. Subsequently, respondent

was released pending further proceedings in the court

of appeals and the district court. Jd. at 51a.

REASONS FOR GRANTING THE PETITION

The court of appeals’ holding creates a three-way

split in the circuits. Seven courts of appeals have

sustained the Bureau of Prisons’ interpretation of 18

U.S.C. 3585(b): a defendant released on bail, even

under restrictive conditions, is not in “official deten-

tion” and thus is not entitled to credit against his

sentence for that period. The Ninth Circuit, however,

previously rejected that approach and required the

Bureau to give credit to a defendant who was given

bail under conditions found to approach those of in-

earceration. In this case, the Third Circuit rejected

the Bureau’s view and adopted what it believed to be

a more restrictive variation on the Ninth Circuit’s |

rule, requiring the Bureau to conduct a case-by-case

analysis to determine whether a defendant was re-

leased on bail into “jail-type” conditions.

The disarray on this issue warrants this Court’s

intervention. Neither the Third nor the Ninth Cir-

cuit has adequately justified its rejection of the

Bureau’s construction of Section 3585(b), and the

case-by-case regime mandated for prisoners in those

circuits creates considerable practical difficulties.

Moreover, the absence of a national rule governing

6

credit issues creates inequities in the treatment of

similarly situated prisoners and compels the Bureau

to administer three different approaches in determin-

ing the proper length of a defendant’s sentence.

This Court’s review is required to reinstate the Bu-

reau’s longstanding policy on a nationwide basis.

1. The Third Circuit’s ruling in this case exacer-

bates an existing conflict on the proper interpretation

of Section 3585(b). Before the Third Circuit’s deci-

sion in this case, every court of appeals that had con-

- sidered the question, except for the Ninth Circuit,

see Mills v. Taylor, 967 F.2d 1397, 1400-1401 (1992),

had held that restrictive conditions of release on bail

are not “official detention” under Section 3585(b).

See Moreland v. United States, 968 F.2d 655 (8th

Cir.) (en bance) (time spent in halfway house not

creditable), cert. denied, 113 S. Ct. 675 (1992);

United States v. Edwards, 960 F.2d 278, 282-283

(2d Cir. 1992) (home confinement not creditable) ;

Pinedo v. United States, 955 F.2d 12, 14 (5th Cir.

1992) (per curiam); United States v. Becak, 954

F.2d 386, 387-388 (6th Cir.) (“physical incarcera-

tion [required] to receive credit for presentence de-

tention”), cert. denied, 112 S. Ct. 2286 (1992);

United States v. Zackular, 945 F.2d 423, 425 & n.2

(1st Cir. 1991) (home confinement not creditable) ;

United States v. Insley, 927 F.2d 185, 186 (4th Cir.

1991) (no credit for home confinement, because only

“full physical incarceration” satisfies statutory re-

quirement); United States v. Woods, 888 F.2d 653,

655-656 (10th Cir. 1989) (halfway house confine-

ment not creditable), cert. denied, 494 U.S. 1006

(1990).

The Ninth Circuit, in Mills v. Taylor, supra, de-

parted from that approach and concluded that “offi-

7

cial detention” includes conditions that “approach

* * * incarceration,” even if the defendant is actually

released on bail subject to a requirement to dwell in

a community treatment facility. 967 F.2d at 1400.

And, in this case, the Third Circuit stated that,

“Twhile we do not go as far as does the Ninth Cir-

cuit[,] which appears to authorize credit for confine-

ment under somewhat less restrictive conditions,”

the term “official detention” in Section 3585(b) in-

cludes release on bail into “jail-type confinement.”

App., infra, 23a. This Court’s review is needed to

restore uniformity to this important area of prison

administration.

2. The Bureau’s interpretation is supported by

the text of Section 3585(b), its history, and prin-

ciples of administrative deference. The Third Circuit

erred in rejecting it.

a. Section 3585(b) states that a defendant “shall

be given credit toward the service of a term of im-

prisonment for any time he has spent in official de-

tention” before beginning service of his sentence. The

phrase “official detention” in Section 3585(b) should

be construed in light of the related statutory provi-

sions that authorize pre-trial restraints on a defend-

ant’s liberty, including detention by the Attorney

General. The relationship among those provisions

“leads to the conclusion that ‘official detention’ means

incarceration.” United States v. Becak, 954 F.2d at

388; accord Moreland v. United States, 968 F.2d at

662 (Loken, J., concurring). The Bail Reform Act

of 1984, 18 U.S.C. 3141 et seq., provides a court with

only two choices. A defendant who is admitted to

bail is considered “released,” even when his release

is conditioned on his residence in a treatment center.

See 18 U.S.C. 3142(c)(1)(B) (x). A defendant is

“detained” only when he is denied bail—a ruling that

8

results in his being “committed to the custody of the

Attorney General for confinement in a corrections

facility” pending trial and sentence. 18 U.S.C. 3142

(1) (2). Thus, the only “detention” that a defendant

may suffer “official[ly]” by virtue of a court order

is detention of the type contemplated by the Bail

Reform Act of 1984."

The appropriateness of construing Section 3585 (b)

in light of the statutory provisions governing bail is

confirmed by the common origins of these provisions.

Congress enacted both the bail provisions and Section

3585(b) as part of the same statute, the Comprehen-

sive Crime Control Act of 1984, Pub. L. No. 98-473,

Tit. II, 98 Stat.. 1976. That legislation worked a

1That view is also confirmed by Congress’s use of the

phrase “official detention” in Section 3585(a), because basic

canons of construction suggest that the phrase should bear

the same meaning in each of the two subsections. See Estate

of Cowart v. Nicklos Drilling Co., 112 S. Ct. 2589, 2596

(1992); see also Reves v. Ernst & Young, 113 S. Ct. 1163,

1169 (1993). Section 3585(a) provides that a

sentence to a term of imprisonment commences on the

date the defendant is received in custody awaiting trans-

portation to, or arrives voluntarily to commence service

of sentence at, the official detention facility at which the

sentence is to be served.

The phrase “official detention facility” in that provision re-

fers to a place designed for the incarceration of offenders

and under the control of corrections officers, not the type of

treatment facility where respondent was “confined.”

2 The provisions of the Comprehensive Crime Control Act

of 1984 relating to bail are known as the Bail Reform Act

of 1984. Pub. L. No. 98-478, Tit. II, ch. I, 98 Stat. 1976.

The provisions of the Act relating to sentencing, including

the credit provision at issue here, are known as the Sentenc-

ing Reform Act of 1984. Pub. L. No. 98-478, Tit. II, ch. II,

98 Stat. 1987.

9

broad and far-reaching reform of bail and sentencing

practices. As this Court recognized in resolving

another controversy that resulted from the same re-

forms, Congress must have been aware of the defini-

tions it gave to statutory terms in the “related legis-

lative enactments” and must have “legislated with

reference to [them].” Gozlon-Peretz v. United States,

498 U.S. 395, 407-408 (1991).

b. The history of the credit provision underscores

its close ties to bail determinations. The original

credit provision was enacted in 1932 to clarify when

a federal sentence began to run, where BOP had

transferred the prisoner from one place of confine-

ment to another. See 18 U.S.C. 709a (1934) (credit

for time spent in jail awaiting transfer). The statute

“retained th[{at] limited thrust until 1960, when

Congress sought to clarify whether, under statutes

requiring the imposition of a minimum mandatory

sentence, the court was free to give recognition to the

time a defendant had spent in jail for want of bail.”

Ochoa v. United States, 819 F.2d 366, 371 (2d Cir.

1987); see also United States v. Peterson, 507 F.2d

1191, 1193 (D.C. Cir. 1974) (per curiam). Accord-

ingly, in 1960 Congress required the Attorney Gen-

eral to grant a convicted defendant credit against his

sentence “for any days spent in custody prior to the

imposition of sentence * * * for want of bail set for

the offense under which sentence was imposed.” Act

of Sept. 2, 1960, Pub. L. No. 86-691, § 1(a), 74 Stat.

738 (emphasis added).

Congress returned to the credit statute in the Bail

Reform Act of 1966, Pub. L. No. 89-465, § 4, 80 Stat.

217, when it deleted the statutory reference to “want

of bail” and made credit available for offenses that

did not call for a mandatory minimum sentence. The

10

Committee Report that accompanied that legislation

indicates that the express reference to bail was de-

leted to clarify that credit should be available for of-

fenses made “nonbailable” by law, and also in cases

when the defendant was “not released for some rea-

son other than lack of bail.” S. Rep. No. 750, 89th

Cong., Ist Sess. 21-22 (1965). In light of that ex-

planation, the lower courts interpreted the 1966 Act

to require credit only for defendants who were im-

prisoned before trial, and rejected claims that onerous

conditions of bail could amount to “custody” under

the statute. As the D.C. Circuit explained,

the purpose of Congress was to benefit those who

were not released; there was no intention to ex-

tend credit to those who were released. Had

Congress, in amending the statute, intended to

give credit to those who were released pending

trial or appeal we think Congress would have

said so in plain language; certainly there would

have been some discussion of this novel proposal

in the reports on the legislation.

United States v. Peterson, 507 F.2d at 1193. The

court thus concluded that “ ‘in custody’ * * * means

detention or imprisonment in a place of confinement

and does not refer to the stipulations imposed when a

defendant is at large on conditional release.” Jd. at

1192. See also Ortega v. United States, 510 F.2d

412, 413 (10th Cir. 1975) (per curiam); Polakoff v.

United States, 489 F.2d 727, 730 (5th Cir. 1974)

(Wisdom, J.).°

%’ With the exception of the Ninth Circuit, see Brown V.

Rison, 895 F.2d 538, 5386 (1990), all courts of appeals that

have since considered the question under the predecessor

statute, 18 U.S.C. 3568 (which remains in force with respect

to sentences imposed before November 1, 1987), have con-

11

There is no indication that Congress, in rewording

the credit provision as part of the Comprehensive

Crime Control Act of 1984, disagreed with the then-

unanimous weight of authority that denied any credit

to defendants who had secured their release on bail.

Rather, as this Court previously stated in construing

Section 3585(b), “[i]t is not lightly to be assumed

that Congress intended to depart from a long estab-

lished policy” followed under the predecessor provi-

sion. United States v. Wilson, 112 S. Ct. 1851, 1355

(1992). While Congress in 1984 did “replace[] the

term ‘custody’ with the term ‘official detention,’ ”’

ibid., the most plausible explanation for Congress’s

use of the “detention” formulation in Section

3585(b) was to conform the credit provision to the

nomenclature used by the Bail Reform Act of 1984.*

e. The Third Circuit also failed to give proper def-

erence to BOP’s reasonable interpretation of the stat-

ute it administers. See Chevron U.S.A. Inc. v. Na-

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

842-844 (1984). Under Chevron, the first inquiry is

whether the statute reveals an “unambiguously ex-

pressed intent of Congress” on “the precise question”

addressed by the agency’s interpretation. Jd. at 843.

cluded that a defendant is not entitled to credit for any time

during which he was released on bail, even if the conditions

of his release were quite restrictive. See, e.g., Randall v.

Whelan, 988 F.2d 522, 524 (4th Cir. 1991); Ramsey V.

Brennan, 878 F.2d 995, 996 (7th Cir. 1989); Mieles v. United

States, 895 F.2d 887, 888 (2d Cir. 1990); United States Vv.

Smith, 869 F.2d 835, 837 (5th Cir. 1989).

4As the court below recognized, App., infra, 13a, every

court of appeals to consider the question has held that the

phrase “official detention” in Section 3585(b) means the same

thing as the phrase “in custody” in the predecessor statute.

12

If it does, that ends the inquiry. Id. at 842-843. If,

however, “the agency interpretation is not in conflict

with the plain language of the statute, deference is

due.” National R.R. Passenger Corp. v. Boston &

Maine Corp., 112 S. Ct. 1894, 1401 (1992). Defer-

ence is especially appropriate when “a full understand-

ing of the force of the statutory policy in the given

situation * * * depend[s] upon more than ordinary

knowledge respecting the matters subjected to agency

regulations.” United States v. Shimer, 367 U.S. 374,

382 (1961).

The Third Circuit did not dispute that BOP is the

agency charged with the administration of Section

3585(b). See United States v. Wilson, supra (BOP,

as designee of the Attorney General, computes credit

after defendant begins his sentence). And that court

did not find that Congress had a clear and unambig-

uous intention on “the precise question” at issue here

—i.e., whether credit must be awarded to defendants

who have been ordered to comply with restrictive

conditions of release. The court concluded, however,

that deference is not due to the Bureau’s interpreta-

tion of Section 3585(b), because that interpretation

was not formally embodied in a regulation, and be-

cause the court believed that the Bureau’s interpreta-

tion of the phrase “official detention” in Section

3585(b) is inconsistent with the Bureau’s interpreta-

tion of the phrase “in custody” in former Section

3568. Neither objection has merit.

While an agency’s informal interpretations of a

statute it administers are “not entitled to the same

deference as norms that derive from the exercise of

* * * delegated lawmaking powers,’ those informal

interpretations are “still entitled to some weight on

judicial review.” Martin v. OSHRC, 499 U.S. 144,

13

157 (1991). Here, BOP has embodied its views in a

Program Statement that governs the day-to-day de-

cisions of prison administrators nationwide. App.,

infra, 45a-50a; see also id. at 33a-44a. BOP’s judg-

ment reflects the type of expertise in explicating am-

biguous statutory language that warrants judicial

deference.

The court also erred in stating (App., infra, 9a-

10a) that the Bureau of Prisons has taken inconsist-

ent positions in administering the provisions govern-

ing credit issues. The Bureau has consistently denied

credit to federal priscvers for time spent at a half-

way house or other sinular institutions as a condition

of pre-trial release. In Program Statement No.

5880.24 (Sept. 5, 1979), which interpreted former

Section 3568, the Bureau provided that “[j]ail time

credit will be given for time spent in the custody of

the Attorney General,” that “[t]ime spent in resi-

dence in a residential community center * * * as a

condition of bail or bond * * * is not creditable as

jail time,” and that “a ‘highly restrictive’ condition

of bail or bond * * * is not considered as time in

custody.” App., infra, 36a, 37a-38a (emphasis

omitted). That interpretation has been a consistent

feature of the Bureau’s administration of Section

3568. The Bureau’s approach to Section 3585(b)

thus accords with its practice under the predecessor

provision.°

5 The court of appeals relied on a sentence in the Program

Statement that indicated that “time spent in a jail-type facil-

ity * * * as a condition of bail or bond is creditable as jail

time because of the greater degree of restraint.” App., infra,

38a. Except when required by court order (see, e.g., Brown

v. Rison, supra), however, the Bureau never applied that

statement to give credit to a defendant released to any type

14

3. The Third Circuit’s error warrants correction

by this Court. As we have noted, the Third Circuit’s

decision deepens an existing circuit conflict on the

credit issue. Because of the importance of that issue

to federal prison administration, we acquiesced two

Terms ago in the petition filed in Moreland v. United

States, 113 S. Ct. 675 (1992) (No. 92-458). Al-

though the Court did not grant review in that case,

the Third Circuit’s decision to join the Ninth Circuit

in rejecting the Bureau’s construction of the credit

statute has made clear that the circuit conflict will

not be resolved through the en banc process in the

circuit that created the division of authority. At the

same time, the Third Circuit’s claim that the ap-

proach it adopted does “not go as far as does the

Ninth Circuit” in “authoriz[ing] credit for confine-

ment under somewhat less restrictive conditions”

(App., infra, 23a) indicates that the Bureau must

henceforth administer three different interpretations

of the credit statute.

The practical impact of the ad hoc approach fol-

lowed by the Ninth and Third Circuits is not con-

fined to those two circuits. The Bureau administers

a national prison system and routinely transfers in-

mates between correctional facilities located in differ-

ent judicial circuits to maintain security and popula-

tion balance.* A large number of transferred inmates

of community treatment facility, and that language was never

otherwise invoked by the Bureau as the basis for any “func-

tional approach” to the credit issue. That point is demon-

strated by the numerous reported cases decided under the

predecessor statute (see, e.g., the cases cited in note 3, supra) .

which were litigated precisely because the Bureau granted

no credit to the inmates involved.

® We are informed by BOP that: during a four-year period

ending in July 1994, 133,987 new inmates were admitted to

15

are likely to be incarcerated at some point in a cor-

rectional facility located in the Third or Ninth Cir-

cuit, because facilities in those two circuits together

account for 30 percent of the Bureau’s inmate popu-

lation.? Because the means for obtaining judicial re-

view of an administrative denial of sentence credit is

an application for habeas corpus filed in the district

of the inmate’s confinement (see 28 U.S.C. 2241),

any inmate transferred to a Bureau facility in one of

those two circuits, even temporarily, can require a

federal district court to determine whether the condi-

tions of his release on bail were sufficiently onerous

to warrant an award of credit under the law followed

in that circuit.

The ruling below also requires BOP, in the first

instance, to make factual determinations for which

it rarely will have available pertinent and reliable

information. For that reason, unlike the straightfor-

ward approach applied by the Bureau for decades, it

is doubtful that the rule adopted by the Third Circuit

can be implemented in a consistent fashion. And the

rule is certain to generate cumbersome litigation

about “matter[s] of judgment, or policy, or discre-

tion” that are “not * * * susceptible of rational deter-

mination, at least by tools of inquiry available to

judges.” Ramsey v. Brennan, 878 F.2d at 996.

Under the Bureau’s interpretation of Section

3585(b), the Bureau can make credit determinations

Bureau facilities. A total of 213,512 inmate transfers among

Bureau facilities occurred during the same period.

7 There are a total of 22 correctional facilities in the Ninth,

and Third Circuits. As of September 15, 1994, the 12 federal

institutions in the Ninth Circuit housed 12,749 inmates. The

10 institutions in the Third Circuit housed 13,135 inmates.

The total inmate population at Bureau facilities on that date

was 85,474.

16

on the basis of the documentary evidence that ordi-

narily accompanies the inmate after he is sentenced—

the inmate’s judgment of conviction and bail form.

Those documents will ordinarily disclose whether the

defendant was released on bail during the pendency

of the proceedings, and on what conditions. Typically,

however, those documents will not contain any de-

scription of precisely how “jail-like” those conditions

were. The rule adopted by the Bureau therefore per-

mits the Bureau to make credit determinations

quickly and efficiently on the basis of information

readily available from reliable law enforcement

sources.

By contrast, the Third Circuit’s case-by-case ap-

proach requires BOP to investigate and analyze the

conditions applicable to federal prisoners who have

spent time in any of the dozens of community treat-

ment centers scattered around the United States.*

8 The practical problem is not limited to treatment centers

or halfway houses. As the experience of the Ninth Circuit

demonstrates, prisoners who suffered other forms of pre-

sentencing constraint will seek to expand the panel’s holding

to their individual circumstances. See, e.g., Fraley v. Bureau

of Prisons, 1 F.8d 924, 925 (9th Cir. 1993) (per curiam)

(prisoners required to stay at home pending trial); Lahey

v. Floyd, 992 F.2d 234, 235-236 (9th Cir. 1998) (same);

United States v. Browning, 761 F. Supp. 681, 682 (C.D. Cal.

1991) (same); see also Grady Vv. Crabtree, 958 F.2d 874, 875

(9th Cir. 1992) (prisoner confined at halfway house as a

condition of post-trial probation); United States v. Freeman,

922 F.2d 1393, 13896-1397 (9th Cir. 1991) (prisoner claiming

credit for time on pre-trial “probation’’); Malosh v. Crabtree,

758 F. Supp. 620, 621 (D. Or. 1991) (prisoner required to

reside on a military base as a condition of pre-trial release) ;

Chalamidas Vv. Quinlan, No. CV-91-859-TSZ (W.D. Wash.

Apr. 22, 1992) (special parolee seeking credit for time spent

in a community treatment center as a condition of special

17

Those centers usually are owned and operated by pri-

vate entities, such as the Volunteers of America facil-

ity at issue in this case, and impose a variety of

different regimens on their residents. The records of

those centers are not available to BOP as a matter of

course. Moreover, BOP would be compelled to rely

on the accuracy and reliability of representations of

private centers that BOP does not control.

Even when there is no reason to doubt the reliabil-

ity of the information furnished, that information

may not significantly aid the Bureau in performing

the task required by the decision below. The restric-

tiveness of bail conditions can vary even with respect

to inmates who are required by the terms of their

bail bonds to reside at the same treatment center. As

the Third Circuit appeared to recognize (App., infra,

23a-24a), two residents of the same community center

could be treated differently under that court’s ap-

proach to the credit statute depending on whether

one of them was permitted to leave for work during

part of the day. Yet the number of possible permuta-

tions of restrictive conditions of bail is virtually limit-

less, because the Bail Reform Act of 1984 encourages

judicial officers to innovate in fashioning conditions

of release that will obviate the need for pre-trial in-

carceration, see 18 U.S.C. 3142(c) (1) (B).

parole), dismissed in part, reversed in part, 981 F.2d 1257

(9th Cir. 1992) (No. 91-36314) (Table). A similar trend has

already begun in the Third Circuit. Following its decision

in this case, the Third Circuit ordered a hearing in the case

of a defendant who, as a condition of bail, had been ordered to

rent, and reside at, a condominium located in an exclusive

Tampa, Florida, development, and to pay for private guards

who would ensure that he appeared for trial. Bilgrami Vv.

Turner, No. 93-7793 (July 18, 1994).

ERS en ee eae TT eet OPE,

18

The Third Circuit speculated that its rule would

be easy to administer because “few situations * * *

will arise” (App., infra, 23a) in which an inmate

will suffer restrictions that are sufficiently severe to

warrant credit. That view is contradicted by the

volume of litigation over the issue, as well as by the

practical fact that a large number of inmates will

have an enormous incentive to litigate about BOP’s

application of a “functional approach” in the context

of their particular bail bonds. A rule that overturns

the agency’s longstanding policy, deviates from the

law of other circuits, and invites so much unwar-

ranted litigation calls for this Court’s review.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

DrEw S. Days, III

Solicitor General

JO ANN HARRIS

Assistant Attorney General

MICHAEL R. DREEBEN

Assistant to the Solicitor General

MIGUEL A. ESTRADA

Assistant to the Solicitor General

JOSEPH DOUGLAS WILSON

Attorney

NOVEMBER 1994

APPENDIX A

Filed April 25, 1994

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 93-7357

ZIYA K. KORAY, APPELLANT

Vv.

FRANK SIZER;

UNITED STATES BUREAU OF PRISONS;

ATTORNEY GENERAL OF THE UNITED STATES

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civ. No. 92-01458)

Submitted Pursuant to Third Circuit LAR 34.1

March 4, 1994

Before: SLOVITER, Chief Judge

COWEN and LEWIS, Circuit Judges

(Filed: April 25, 1994)

OPINION OF THE COURT

(la)

2a

SLOVITER, Chief Judge.

I,

On April 23, 1991, Ziya Koray was-arrested for

laundering monetary instruments in violation of 18

U.S.C. § 1956(a)(1). On June 18, 1991, Koray en-

tered a guilty plea. On June 25, 1991, a federal Mag-

istrate Judge released Koray pursuant to 18 U.S.C.

§ 3142(c) & (h) (1988 & Supp. III 1991) into the

custody of the Pretrial Services Agency and ordered

him to be “confined to the premises of [the Volun-

teers of America ‘halfway house type facility’] and

shall not be authorized to leave for any reason unless

accompanied by Special Agent Dennis Bass.” App.

at 17. On October 21, 1991, the district court sen-

tenced Koray to 41 months imprisonment with two

years of supervised release. Koray remained at the

Volunteers of America halfway house until Novem-

ber 25, 1991, when he reported to the Allenwood

Federal Prison Camp in Montgomery, Pennsylvania.

Koray received a credit of 64 days for the time

spent in jail between April 23 and June 25 pursuant

to 18 U.S.C. § 3585 (1988). However, the Bureau

of Prisons declined to credit him for the approxi-

mately 150 days he was confined to the Volunteers

of America facility. After exhausting his adminis-

trative remedies, Koray sought a writ of habeas

corpus from the district court for the Middle District

of Pennsylvania on October 15, 1992, arguing that

the Bureau misapplied the statute in not crediting

him for the time spent while “released” with restric-

tive conditions. The district court found that restric-

tive release conditions can never amount to “official

detention” under section 3585(b) and denied the pe-

tition for a writ of habeas corpus. Koray filed this

3a

timely appeal. The district court had jurisdiction

under 28 U.S.C. § 2241 (1988). We have appellate

jurisdiction under 28 U.S.C. § 1291 (1988) and re-

view this question of statutory interpretation de

novo. See Barden v. Keohane, 921 F.2d 476, 479

(3d Cir. 1990).

Il.

Credit for prior custody is determined by 18 U.S.C.

§ 3585(b), which provides:

Credit for prior custody.—A defendant shall be

given credit toward the service of a term of im-

prisonment for any time he has spent in official

detention prior to the date the sentence com-

mences—

(1) as a result of the offense for which the

sentence was imposed; or

(2) as a result of any other charge for

which the defendant was arrested after the

commission of the offense for which the sen-

tence was imposed;

that has not been credited against another

sentence.

(emphasis added). The relevant question is whether

“official detention” includes a court order of confine-

ment in a facility such as a halfway house as a con-

dition of bail.

A.

Prior to 1960, sentencing courts gave credit to-

ward the sentence imposed for time spent in pre-

1In the district court, Koray also argued that the statute

violated equal protection by treating pre-trial defendants dif-

ferently than post-sentenced defendants. The district court

rejected this argument. Koray does not raise his equal pro-

tection argument on appeal, and we do not address it.

eT

4a

sentence custody. See Soyka v. Alldredge, 481 F.2d

308, 305 & n.6 (38d Cir. 1973). However, courts

lacked authority to give such credit to a defendant

sentenced to a statutory mandatory minimum, see

Stapf v. United States, 367 F.2d 326, 328 (D.C. Cir.

1966), and the number of such statutes markedly in-

creased. To avoid the disparity between those sen-

tenced under a mandatory minimum and those who

were not, and also between those granted bail and

those who were not, Congress amended the statute in

1960 to grant credit for pre-sentence confinement.

Codified at 18 U.S.C. § 3568, the provision required

that “the Attorney General shall give any [person

convicted] credit toward service of his sentence for

any days spent in custody prior to the imposition of

sentence by the sentencing court for want of bail set

for the offense under which sentence was imposed

where the statute requires the imposition of a mini-

mum mandatory sentence.” Pub. L. No. 86-691, $1

(a), 74 Stat. 738, 738 (1960).

This provision was amended in 1966 to expand the

credit provisions, removing the requirement that

credit only be granted in cases of mandatory mini-

mums, increasing the offenses which could be counted

for credit, and removing any mention of bail. It re-

quired that 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.” Pub. L. No.

89-465, § 4, 80 Stat. 214, 217 (1966) (codified at 18

U.S.C. § 3568 (1982) ).

In the Sentencing Reform Act of 1984, Congress

rewrote section 3568 and recodified it as section 3585

(b). See Pub. L. No. 98-478, 98 Stat. 1998, 2001

(1984). “Congress entirely rewrote § 3568 when it

Pig a CSE ee ee

5a

changed it to its present form in § 3585(b). It re-

arranged its clauses, rephrased its central idea in the

passive voice, and more than doubled its length.”

United States v. Wilson, 112 S. Ct. 1851, 13855

(1992). “Congress altered § 3568 in at least three

ways when it enacted § 3585(b). First, Congress re-

placed the term ‘custody’ with the term ‘official de-

tention.’ Second, Congress made clear that a defend-

ant could not receive a double credit for his detention

time. Third, Congress enlarged the class of defend-

ants eligible to receive credit.” Jd. at 1855-56.

B.

We have had few opportunities to consider the scope

of either section 3585 or its predecessor. This court

recently declined to decide the question presently be-

fore us because the defendant had not exhausted his

administrative remedies. See United States v. Brann,

990 F.2d 98, 103-04 (3d Cir. 1993).

The only prior decision in which this court spoke

to the issue of credit for time outside of prison was

United States v. Golden, 795 F.2d 19 (8d Cir. 1986),

which concerned time spent in the Federal Witness

Protection Program rather than in a halfway house.

In Golden, the defendant entered into an agreement

to plead guilty to two lesser counts and to assist the

government in its investigation and prosecution of

drug-related crimes. The government agreed to place

him in the Federal Witness Protection Program. The

district court sentenced the defendant to eight years

and ordered “that the defendant is permitted to self-

report at such time and place when notified by the

United States Marshal’s Office.” Jd. at 20 (quotation

omitted). The defendant then remained at large in

ee

6a

the Witness Protection Program until the Marshal

ordered him to report to prison twenty-one months

later. Defendant appealed, claiming that the sentence

was illegal because the district court failed to specify

when it would begin. We agreed, and remanded for

resentencing.

We rejected the defendant’s claim that he was en-

titled as a matter of law to credit for the time he

spent in the Witness Protection Program, stating

“To]enerally, a defendant is not entitled to credit for

time spent released on his own recognizance prior to

entering prison.” Jd. at 21. Therefore, we rejected

the defendant’s contention that failure to credit his

sentence for time spent in the Witness Protection Pro-

gram was a breach of the plea agreement, stating:

The plea agreement specifically provided that he

would be given credit for periods of incarcera-

tion prior to sentencing. By statute, credit for

time prior to commencement of the sentence is

given for time spent in custody. However, cus-

tody has been defined as actual incarceration.

See United States v. Ortega, 510 F.2d 412 (10th

Cir. 1975). While restrictions were placed on

[the defendant], the district court was not re-

quired to equate his life in the Witness Protec-

tion Program with incarceration.

Id.

On the other hand, we suggested that the issue of

credit was one for the discretion of the district court,

stating that on resentencing the district court “may

determine that [defendant] is entitled to a credit

for some portion of the twenty-one months between

the time [he] was sentenced and the time he was

actually ordered to report to prison.” Id. Thus, we

Ta

may have been suggesting that some of the time the

defendant was in the Witness Protection Program

was more restrictive than mere recognizance and

therefore could be entitled to credit.

Finally, although not directly on point, we consid-

ered the issue of comparability between prison and

a halfway house in United States v. Parker, 902 F.2d

221 (3d Cir. 1990). Defendant appealed from his

sentence of six months of confinement in a community

facility on the ground that it did not represent a

departure as recommended by the government be-

cause six months in the community center was equiva-

lent to the minimum sentence under the guidelines.

We disagreed, stating, “[w]e think it clear that a

period of confinement as a condition of probation,

subject to a defendant’s being released to go to work,

cannot possibly be equated with an equivalent period

of imprisonment.” Jd. at 222. Parker presents less

assistance than Golden, and Golden is itself not di-

rectly relevant because of the marked fact difference.

C.

The other Courts of Appeals to have considered

this issue are divided. Although most have concluded

that section 3585, like its predecessor section 3568,

does not require the Bureau to credit presentenced

defendants whose bail conditions allowed them to be

confined outside of Bureau of Prison facilities, that

conclusion was not reached without dissent. See, e.g.,

Moreland v. United States, 968 F.2d 655, 659-60

(8th Cir.) (en banc) (plurality) (with one judge

concurring in judgment and five judges dissenting),

cert. denied, 113 S. Ct. 675 (1992); United States

v. Becak, 954 F.2d 386, 387-88 (6th Cir.), cert. de-

8a

nied, 112 S. Ct. 2286 (1992); Spinola v. United

States, 941 F.2d 1528, 1529 (11th Cir. 1991); Ran-

dall v. Whelan, 938 F.2d 522, 525 (4th Cir. 1991)

(with Butzner, J., dissenting); United States v.

Insley, 927 F.2d 185, 186 (4th Cir. 1991); United

States v. Woods, 888 F.2d 658, 655-56 (10th Cir.

1989), cert. denied, 494 U.S. 1006 (1990); Ramsey

v. Brennan, 878 F.2d 995, 996 (7th Cir. 1989) ;

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

1989); United States v. Figueroa, 828 F.2d 70, 71

(1st Cir. 1987) (per curiam) ; see also United States

v. Westmoreland, 974 F.2d 736, 740-45 (6th Cir.

1992) (Engel, J., dissenting), cert. denied, 118 S. Ct.

1818 (1993). In addition, the Ninth Circuit has re-

jected the conclusion reached by the other circuits,

holding instead that when conditions of release ap-

proach those of incarceration, a detainee is in “of-

ficial detention” for purposes of section 3585. See

Fraley v. United States Bureau of Prisons, 1 F.3d

924, 925-26 (9th Cir. 1993); Lahey v. Floyd, 992

F.2d 234, 235-36 (9th Cir. 1993); Mills v. Taylor,

967 F.2d 1397, 1400-01 (9th Cir. 1992); Grady v.

Crabtree, 958 F.2d 874, 875 (9th Cir. 1992) (per

curiam); Brown v. Rison, 895 F.2d 533, 5386 (9th

Cir. 1990).

In reaching the decision that no credit should be

awarded, some of the courts have deferred to the

interpretation of the statute used by the Bureau of

Prisons. See Moreland, 968 F.2d at 658; Randall,

938 F.2d at 525 & n.38; Ramsey, 878 F.2d at 996

(Bureau’s interpretation “is a reasonable opinion by

officials having greater knowledge of federal penal

policy than we judges: have, so we are inclined to de-

fer to it.”). |

9a

It is far from clear that the Bureau of Prisons’

determination that section 3585 does not require

credit be granted when a court “releases” a pre-

sentenced defendant to a halfway house should be

granted the substantial deference that Chevron U.S.A.,

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

U.S. 837 (1984), requires to be given to an agency’s

own interpretation of the statute it administers. The

Bureau’s interpretation is recorded in its “Program

Statements,” which are merely internal agency guide-

lines and may be altered by the Bureau at will. See

Bureau of Prisons, Program Statement 1221.02.1.2.1

(Apr. 12, 1993) (describing how Program State-

ments are promulgated and modified). As such, it is

entitled to a lesser level of deference from the courts

than are published regulations subject to the rigors

of the Administrative Procedures Act, including pub-

lie notice and comment. See FLRA v. United States

Dep’t of Navy, 966 F.2d 747, 762 & n.14 (3d Cir.

1992) (in banc); Marshall v. Rosemont, Inc., 584

F.2d 319, 321 (9th Cir. 1978).

Even when we accord the Bureau’s interpretation

some level of deference, we must examine whether

the Bureau engaged in the necessary “reasoned

analysis” of this issue. See Motor Vehicles Mfrs.

Ass’n v. State Farm Mutual Auto Ins. Co., 463 U.S.

29, 42 (1983) (revision of regulations requires “rea-

soned analysis”). In that connection, it is difficult

to ignore the fact that the rationale given by the

Bureau for its refusal to accord credit for time spent

by a pretrial detainee in a halfway house is different

under section 3568 than it is under the currently

applicable section 3585. When interpreting section

3568, the Bureau rationalized its decision not to ac-

———— SEE

10a

cord credit on the basis of the degree of restraint.

Thus it distinguished between “[t]ime spent in resi-

dence in a residential community center” where “the

degree of restraint . . . is not sufficient restraint to

constitute custody” and “time spent in a jazl-type

facility . . . as a condition of bail or bond” which was

“creditable as jail time because of the greater degree

of restraint.” Bureau of Prisons, Program State-

ment No. 5880.24(5)(b) (5) (Sept. 5, 1979), quoted

in Johnson v. Smith, 696 F.2d 1334, 1336 (11th Cir.

1983).

Although the Bureau still retains this functional

analysis for defendants governed by section 3568, see

Bureau of Prisons, Program Statement 5880.30(7)

(b) (5) (July 16, 1993), it uses a different approach

for section 3585. Now it focuses on whether the de-

fendant has been “released” to pretrial services or

“detained” by the Attorney General. See 18 U.S.C.

§ 3141(a) (1988) (“A judicial officer authorized to

order the arrest of a person under section 3041 of

this title before whom an arrested person is brought

shall order that such person be released or detained,

pending judicial proceedings, under this chapter.’’).

The Program’s current position is that “[t]ime

spent in residence in a community corrections center

as a result of the Pretrial Services Act of 1982 (18

U.S.C. § 3152-3154), or as a result of a condition of

bail or bond (18 U.S.C. § 3141-3143), is not credit-

able as presentence time.” Bureau of Prisons, Pro-

gram Statement 5880.28(c) (Feb. 21, 1992). It

has determined that “[a] condition of bail or bond

which is ‘highly restrictive,’ and that includes ‘house

arrest’, ‘electronic monitoring’ or ‘home confinement’ ;

or such as requiring the defendant to report daily to

lla

the U.S. Marshal, U.S. Probation Service, or other

person; is not considered as time in official deten-

tion.” Id. The rationale given by the Bureau is that

“Ts]Juch a defendant is not subject to the discretion

of the U.S. Attorney General, the Bureau of Prisons,

or the U.S. Marshals Service, regarding participation,

placement, or subsequent return to a more secure

environment, and therefore is not in a status which

would indicate an award of credit is appropriate.”

Id. The Bureau also believes that “the government

may not prosecute for escape in the case of an un-

authorized absence in such cases, as the person has

been lawfully released from ‘official detention.’” Jd.

The distinction in approaches is highly significant

for Koray. Under the earlier rationale he might be

able to convince the Bureau or a court that his condi-

tions of confinement in the Volunteers of America

facility were similar to those in a “jail-type facility”

and that credit was appropriate notwithstanding the

Bureau’s generally applicable rule denying credit for

time spent in a halfway house. Under the current

rationale, Koray would not have that opportunity

because he is clearly in the custody of pretrial serv-

ices rather than the Attorney General.

In order to determine whether the Bureau’s in-

terpretation withstands “reasoned analysis” we must

examine whether the intervening statutory change

from “custody” to “official detention” can carry the

weight of this new interpretation. The legislative

history of the change is both lengthy and unenlight-

ening. While we describe it in the margin, we note

that Congress has used the terms “custody,” “official

custody,” “confinement” and “official detention” in-

terchangeably in describing this provision, as would

12a

a normal English speaker.’ Indeed, the title of the

subsection remains “Credit for Prior Custody.” (em-

phasis added). See INS v. National Ctr. for Immi-

2 The “official detention” language now codified at § 3585

was originally introduced in the 98rd Congress in S. 1, which

was a comprehensive effort to revise Title 18 of the United

States Code. See S. 1, 93d Cong., 1st Sess. (1973). That

language remained when the version of the bill was reported

out of the Judiciary Committee in the 94th Congress. See

S. 1, 94th Cong., 1st Sess. (1975). In the only discussion of

this section, the Judiciary Committee’s Report described the

then present federal law, which was § 3568, as providing

“that the offender will receive credit for any time spent in

custody” and described the proposed language as providing

“credit towards the sentence of imprisonment for any time

the defendant has spent in official custody prior to the date

the sentence was imposed.” S. Rep. No. 00, 94th Cong., 2d

Sess. 926-27 (1976) (emphasis added). The same language

of the bill continued throughout revisions in the 95th, 96th

and 97th Congress as S. 1487, S. 1722, and S. 1630 respec-

tively. See S. 1487, 95th Cong., 1st Sess. (1977); S. 1437,

95th Cone., 2nd Sess. (1978); S. 1722, 96th Cong., 1st

Sess. (1979); S. 1630, 97th Cong., Ist Sess. (1981). More-

over, the Judiciary Committee’s Report used the same de-

scriptive language concerning this provision each time. See

S. Rep. No. 605, 95th Cong., 1st Sess. 935-36 ( 1977); S. Rep.

No. 553, 96th Cong., 2d Sess. 996 (1980); S. Rep. No. 307,

97th Cong., 1st Sess. 1049 (1981). Finally, in the 98th Con-

gress, the provision was included in two bills. S. 668 and

S 1762. The Senate Judiciary Committee reported out both

these bills with the exact same description of the provision.

S. Rep. No. 223, 98th Cong., Ist Sess. 125-26 (1983); S. Rep.

No. 225, 98th Cong., 1st Sess. 128-29 (1983), reprinted in

1984 U.S.C.C.A.N. 3182, 3311-12. The Senate passed S. 1762.

Meanwhile, the House Judiciary Committee which reported

out H.R. 6915 tracking the language of the previous Senate

bills described the provision as providing “a defendant be

given credit toward the service of a term of imprisonment

13a

grants’ Rights, Inc., 112 S.Ct. 551, 556 (1991) (may

use title to construe statute).

From this we conclude, as have all the circuits

which have considered the issue, that the use of the

word “official detention” rather than the word “cus-

tody” was not intended to alter the meaning of the

statute. See Moreland, 968 F.2d at 657-58 n.6 (plu-

rality) ; id. at 664 (Heaney, J., dissenting); Mulls,

967 F.2d at 1400; United States v. Edwards, 960

F.2d 278, 283 (2d Cir. 1992); Pinedo v. United

States, 955 F.2d 12, 14 (5th Cir. 1992) ; Becak, 954

F.2d at 387-88; Insley, 927 F.2d at 186; Woods, 888

F.2d at 655.

It follows that before we accord any substantial

deference to the Bureau, we must look to whether

the Bureau has articulated any sustainable rationale

for reading “official detention” as if it provided “offi-

cial detention by the Attorney General or the Bureau

of Prisons.” The plain meaning of the words “offi-

for any time spent in confinement before the commencement

of the sentence of imprisonment if that time has not been

credited against another sentence.” H.R. Rep. No. 1396, 96th

Cong., 2d Sess. 474 (1980) (emphasis added). In the 98th

Congress, the House Judiciary Committee, while rejecting

much of what was in S. 1762, proposed its own crime bill

which incorporated a provision similar to the Senate’s credit

provision except that it provided that a “defendant shall be

given credit toward the service of a term of imprisonment

for any time spent in custody before the date on which the

term commences.” H.R. 6012, 98th Cong., 2d Sess. (1984)

(emphasis added). The Judiciary Committee reported that

this provision required credit be given for “any time spent

in confinement before the commencement of the sentence of

imprisonment.” H.R. Rep. No. 1017, 98th Cong., 2nd Sess.

54 (1984) (emphasis added). The House passed the Senate’s

version without any changes to the credit provision.

14a

cial detention” does not require this result; there is

nothing in the statute which requires or suggests

that a defendant must be under the detention of the

Bureau. But see Randall, 938 F.2d at 525 (“There

exists a strong presumption that ‘custody’ refers to

the legal authority of the custodian rather than to

actual housing conditions.’’). A court may “detain”

a person as “official[ly]” as the Attorney General.

Cf. United States v. Camarata, 828 F.2d 974, 981

(3d Cir. 1987) (Becker, J., concurring) (defendant

on bail “was under the custody of the court, not the

Attorney General”), cert. denied, 484 U.S. 1069

(1988).

It is therefore difficult to view Koray’s detention

as other than “official” since he was put in the “cus-

tody” of pretrial services, 18 U.S.C. § 3142(c) (1)

(B) (i), and was confined to the halfway house by

court order. Although the Bureau notes that only

an escape from one of its facilities permits prosecu-

tion as an escape from confinement under 18 U.S.C.

§ 751(a), see United States v. Baxley, 982 F.2d 1265,

1269-70 (9th Cir. 1992); United States v. Miranda,

749 F. Supp. 1062, 1063-64 (D. Colo. 1990); but cf.

Ramsey, 878 F.2d at 996 (dicta), this does not mean

that escape from the Volunteers of America facility

would have gone unpunished. In fact, Koray’s fail-

ure to comply with the conditions of his release would

be a felony and would have subjected him to what

the Bureau concedes is “a more severe punishment.”

Appellee’s Br. at 15 n.5; see 18 U.S.C. $§ 3146(b),

3148(a) (1988); United States v. George, 625 F.2d

1981, 1084-85 (3d Cir. 1980) (failing to report to

U.S. Marshal as required by condition of bail is a

felony under the Bail Reform Act).

Moreover, the Bureau itself does not always limit

“official detention” to that served under the custody

15a

of the Attorney General. in this connection we note

that the Bureau has characterized other custody as

“constructive federal custody” and has been willing

to give presentenced defendants credit under section

3585 and its predecessor section 3568 for certain

time spent in state facilities, even though the defend-

ant was not in the Attorney General’s custody. See,

e.g., Bureau of Prison, Program Statement 5880.28

(c) (1) (a) (2),® 5880.28(c) (1) (b)* (Feb. 21, 1992);

8 Under the Program Statement cited in the text, credit

will not be given for any portion of time spent serving another

sentence regardless of whether the sentence is federal, state,

or foreign, except as follows:

a. Time spent serving another foreign or state sen-

tence that is vacated may be creditable as prior custody

time credit provided the sentence was not vacated merely

for resentencing. Any such time which is credited must

be time spent after the commission of the federal offense.

If a vacated state or foreign sentence results in a retrial

and subsequent resentencing, any credit applied to that

resentencing must be removed from the federal sentence

computation, provided the inmate has not yet been re-

leased from that sentence.

b. Time spent serving another federal, foreign or

state sentence that is vacated merely for resentencing

shall not have any effect on the [Sentencing Reform Act

(SRA)] sentence computation until such time as the

inmate is resentenced. If the resentencing results in a

term which is less than the time the inmate has already

served on the vacated sentence, the excess time not now

credited to any other sentence shall be credited -to the

SRA term provided it was time spent after the commis-

sion of the federal offense.

4Under another section, credit related to 18 U.S.C.

§ 3585(b) (2) will be given as follows:

1. Prior Custody Credit will be given for time spent

in official detention as the result of any federal, state or

16a

——$—$—$—$—$— ne

foreign arrest which is not related to, yet occurred on

or after the date of commission of the federal offense

for which the SRA sentence was imposed; provided. it

has not been credited to another sentence. The lan-

guage in this Section eliminates any need for a federal

detainer to be on file or for bail to be set on the state

or foreign charges as a prerequisite for applying such

presentence time credit toward the federal sentence.

Relevant prerequisites are:

a. The non-related official detention must have

occurred on or after the date of the federal offense

for which the SRA sentence was imposed.

b. The non-related official detention must not have

been granted on another sentence. If it was applied

on a state or foreign sentence, then credit is not ap-

plicable to the SRA sentence.

2. Failure by the state to grant official detention credit

on a state sentence can be determined if:

a. The state charges are dismissed.

b. State probation is granted.

c. The federal term is concurrent with the state

term and the Full Term Date of the state term is

absorbed within the Full Term Date of the federal

sentence (prior to applying any presentence credits

and regardless of any award of prior custody credits

by the state). Prior custody credits would be given

up to the date that the first sentence begins to run,

federal or state. Credit may not be applied for any

time spent prior to the date of the SRA offense.

Further, if the release from the non-federal sentence

occurs prior to the imposition of the federal sen-

tence, then any non-federal prior custody time

awarded on the state sentence may not be applied

to the federal sentence.

d. The state sentence is vacated with further

prosecution deferred, thereby effectively vacating the

state’s credit....

e. Ordinarily, if a state sentence is served, the in-

mate will have received credit for the presentence

A Te

17a

id. at 5880.30(7)(c)(1) (July 16, 1993) ;° see also

Moreland, 968 F.2d at 660 n.10.

official detention. However, if it can be demonstrated

that the state did not credit the time, the credit will

be awarded for time in state custody consistent with

the instructions set forth in this section.

(table omitted).

5 This section, entitled “constructive federal custody,” ap-

plies to defendants still governed by section 3568 as follows:

(1) For time in non-federal custody when the non-

federal custody is based on charges that later resulted

in a federal sentence.

(a) Credit shall be given for all time spent in

non-federal or foreign custody when the underlying

basis for custody in fact is a federal warrant. For

example, if a federal warrant is issued and the de-

fendant is arrested by county police or foreign offi-

cials on the basis of the federal warrant, credit shall

be given from the date of arrest to the date of sen-

tence for all days in custody. Inquiries or requests

for foreign presentence time credit, along with copies

of the judgment and commitment and copies of any

documentation in the institution or in the possession

of the prisoner, must be sent to the Chief of Inmate

Systems Management for verification.

(b) If the federal defendant has been in pre-

sentence state or foreign custody on essentially the

same charges, credit shall also be given even though

a federal detainer may not have been on file during

that time. Credit shall also be given for time spent

in non-federal presentence custody when the non-

federal and federal charges are similar enough to

be considered the same criminal act or offense. This

non-federal presentence custody is applicable when

the factors of time, location, and the criminal acts

are identical in both charges. Credit shall also be

given for all time spent serving a state sentence (on

18a

It follows from the anomalous result proffered by

the Bureau and the absence of any support therefor

in the statute or legislative history that the deference

which we must accord it is minimal. See Mills, 967

F.2d at 1400 (“BOP’s interpretation of section 3585

is unreasonable”); Brown, 895 F.2d at 536 (“we

cannot accept as reasonable a definition of ‘custody’

that excludes enforced residence under conditions ap-

proaching those of incarceration; to do so would be

contrary to the considerations of fairness that must

have underlain Congress’s provision of credit for

time served’’).

After all, it is the statutory language we must con-

strue. “To a normal English speaker, even to a legal

English speaker, being forced to live in a halfway

house is to be held ‘in custody’. . . “Ramsey, 878

F.2d at 996; see also Brown, 895 F.2d at 536. The

“ordinary and obvious meaning of [a] phrase is not

to be lightly discounted.” INS v. Cardoza-Fonseca,

480 U.S. 421, 431 (1987). Such an understanding

of “custody” has also been articulated by organiza-

tions involved in defining the standards in the field.

See 3 American Bar Association, Standards for Crim-

inal Justice 18-319 (2d ed. 1980) (should grant

credit for time spent in “custody,” including any bail

program which “imposes substantial restrictions on

the offender’s freedom of activity”); National Advis-

ory Commission on Criminal Justice Standards and

Goals, Corrections § 5.8 comment. (1973) (“In some

cases .. . conditions for pre-trial release are substan-

tial and involve serious restrictions on liberty. Where

the same charges as defined in this paragraph),

which has its conviction vacated with no further

prosecution to follow, in addition to any other non-

federal presentence time.

19a

supervision is substantial, courts should be authorized

to grant a measure of credit for such time against

the sentence imposed.”’).

Notwithstanding the latter, we are not prepared

to open the floodgates of credit by viewing “official

detention” as encompassing the vast array of alterna-

tive sentencing mechanisms which are currently used

in the federal system to confine and rehabilitate ac-

cused and convicted defendants. Instead, we find our-

selves persuaded by the comments of Judge Heaney,

for the five dissenters in Moreland: “Under the stat-

ute, the degree of confinement is what is at issue

. Moreover, ... the restrictions on [the defend-

ant’s] liberty were among the most severe that could

have been imposed as a condition of pretrial release.

The government placed [the defendant] into a half-

way house not only to ensure his appearance at trial

but also to protect the community, a goal that is per-

haps the central purpose of incarceration today.”

Moreland, 968 F.2d at 666-67.

Although the Bureau of Prisons maintains its posi-

tion that ‘conditions at community treatment cen-

ters generally are neither penal in nature nor nearly

as restrictive as those in a full custodial environ-

ment,” Appellee’s Br. at 9 (emphasis added), it does

not argue that the release conditions imposed on

Koray are not equal to the restrictions imposed on

some defendants in the custody of the Bureau who

do receive credit against their sentence. While the

district court did not make factual findings regard-

ing the conditions of confinement at the Volunteers

of America facility, according to the allegations in

Koray’s motion in the district court (unchallenged

by the Bureau), he was subjected to substantial re-

strictions on his liberty: he was permitted to leave

20a

the facility only once in 150 days (for a medical

exam), he had to account for his presence five times

a day, he was subject to random breath and urine

tests, his access to visitors was limited in both time

and manner, and there was a paucity of vocational,

educational, and recreational services compared to a

prison facility. In its brief, the Bureau admits that

“the Volunteers of America maintains a halfway

house similar to the manner in which the Bureau of

Prisons may also operate such facilities.” Appellee’s

Br. at 14.

The Bureau would preclude any factual determina-

tion of whether a prisoner was held under jail-type

conditions, arguing that a bright-line rule is neces-

sary in light of the fact-specific nature any alterna-

tive would require. Some courts have agreed. See

Randall v. Whelan, 938 F.2d 522, 525 (4th Cir. 1991)

(broader definition of custody “would mire the ju-

diciary in a swamp of factual and circumstantial de-

tails that would likely produce inconsistent and stand-

ardless decisions”); Moreland, 968 F.2d at 663

(Loken, J., concurring in judgment). It is signifi-

cant, however, that the facts in many of the cases

which appear to support a broad rule giving credit

for time in a halfway house were markedly different

than these here, and those defendants would not have

been entitled to credit under the criterion of “jail-

type detention.” For example, defendants in Becak,

954 F.2d at 387; Insley, 927 F.2d at 186; and Spin-

ola, 941 F.2d at 1529, all were residing with one or

more parent; the defendant in Woods was in a half-

way house with work release, 888 F.2d at 654; and

the custodial conditions in some of the other cases

are unclear but appeared to permit daytime release.

2la

Similarly, the cases relied upon by the Bureau from

other courts which have refused to grant credit be-

cause the conditions imposed were not substantial

enough to be equivalent to imprisonment are inap-

posite to this case. See, e.g., United States v. Zacku-

lar, 945 F.2d 423, 425 (1st Cir. 1991) (“confinement

to the comfort of one’s own home is not the functional

equivalent of incarceration in either a practical or a

psychological sense’) ; United States v. Edwards, 960

F.2d 278, 282-85 (2d Cir. 1992) (confinement to

uncle’s apartment except for religious services, choir

practice, court appearances and to meet with attorney

with intermittent electronic monitoring is insufficient

to constitue “official detention’); Marrera v. Ed-

wards, 812 F.2d 1517, 1517 (6th Cir. 1987) (pre-

trial confinement for medical treatment not “cus-

tody’’) ; United States v. Robles, 563 F.2d 1308, 1309

(9th Cir. 1977) (defendant released on recognizance

with minimal restrictions not in “custody’”’), cert.

denied, 485 U.S. 925 (1978) ; United States v. Peter-

son, 507 F.2d 1191, 1192 (D.C. Cir. 1974) (defend-

ant “at large on conditional release” not in “cus-

tody’”); cf. United States v. Parker, 902 F.2d 221,

222 (3d Cir. 1990) (‘“‘a period of confinement as a

condition of probation, subject to a defendant’s being

released to go to work, cannot possibly be equated

with an equivalent period of imprisonment” (empha-

sis added) ).

We therefore do not believe it will be administra-

tively difficult to give credit for time served by de-

fendants under jail-type detention. The overwhelm-

ing majority of defendants will not be affected since

only a small percentage of federal defendants are re-

leased to a halfway house. We also note that the Bu-

reau was able to incorporate the Ninth Circuit’s de-

22a

cision into its Program Statement,® and there is no

allegation, much less evidence, that this overwhelmed

the Bureau’s administrative process.

6 The Program Statement accommodates the Ninth Circuit’s

decision in Brown by providing as to defendants governed

by section 3568 that:

An exception to the rule, contained in paragraph

7.b.(5) above, pertains to any person sentenced in the

Ninth Circuit, regardless of where that person is pres-

ently located or may transfer, who was ordered to spend

time in a halfway house as a condition of bond, if that

condition required that the person spend the night in

the halfway house. (If the person worked nights and

was ordered to spend off duty hours in the halfway house,

then such off duty hours would be considered “nights” for

crediting purposes.) For this particular group of de-

fendants, credit must be given for each presentence day

spent in the halfway house. (See Brown v. Rison, 895

F.2d 533 (9th Cir. 1990).

Regardless of whether a person is presently confined,

or is received in the future, records need not be reviewed

until the person requests Brown credit. Exhaustion of

administrative remedy is not required. Credit may be

requested on a request to staff member form. Credit will

only be given when the person can provide evidence, e.g.,

name or pretrial services officer, name and location of

the halfway house, and dates of “custody” in the half-

way house, to support the claim that such credit exists.

Based on the information provided by the prisoner,

staff are responsible for obtaining necessary documenta-

tion to substantiate the claim before Brown credit may

be given. If information is received from some source

other than the prisoner that Brown credit may apply,

of if it is obvious that such credit may apply, then staff

shall initiate an inquiry by interviewing the prisoner

involved.

Bureau of Prisons, Program Statement 5880.30(7) (b) (6)

(July 16, 1993).

23a

Moreover, we note the inherent unfairness in de-

clining to grant credit to a defendant who sought bail

but was confined under jail-like conditions without

giving the defendant notice that this would be the

result. Some defendants, such as Koray, might choose

not to request bail under these circumstances, par-

ticularly if the alternative is “official detention” in a

minimum-security type institution with facilites su-

perior to those in the haifway house in question. Fur-

ther, we cannot ignore that the government derives

the full benefits of incarceration, protecting the public

and ensuring the defendant’s presence at trial at a

lower cost while freeing scarce jail space for truly

dangerous offenders. See Garry A. Berger, Pre-Sen-

tence Halfway House Residents: Are They Entitled

to Credit Toward Subsequent Prison Sentences?, 27

Colum. J.L. & Soc. Probs. 191, 194 n.11 (1993).

After careful consideration of the decisions of all

the other courts to have ruled on the issue and the

position of the Bureau of Prisons, we conclude that

“official detention” for purposes of credit under 18

U.S.C. § 3585 includes time spent under conditions

of jail-type confinement. While we do not go as far

as does the Ninth Circuit which appears to authorize

credit for confinement under somewhat less restric-

tive conditions, we believe the standard we establish

is consistent with the language of the statute, Con-

gress’s intent, and the Burau’s initial rationale under

the statute. We are confident that the district courts

will have no difficulty in applying this test in the few

situations we anticipate will arise. To assist the dis-

trict courts, we explain this does not include confine-

ment in drug rehabilitation facilities, where the de-

fendant is receiving the benefit of the confinement,

nor of course any halfway house where defendant

leaves to work during part of the day. Because there

has been no finding that Koray was in fact held un-

der such conditions, we will remand for the necessary

fact finding.

IIT.

We will reverse the order of the district court and

remand for further proceedings consistent with this

opinion. The district court should conduct those pro-

ceedings with expedition, because the time that Koray

must serve in prison will have expired if he is en-

titled to credit for the time he was confined in the

Volunteers of America facility.” The mandate shall

issue forthwith.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

1 We leave it to the discretion of the district court whether,

under the circumstances, Koray should be released pending

such a hearing.

25a

APPENDIX B

[Filed Apr. 30, 1993]

UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

Civil No. 3:CV-92-1458

(Judge Kosik)

ZIYA K. KORAY, PETITIONER

Vv.

FRANK SIZER, ET AL., RESPONDENTS

ORDER

This is a petition for a writ of habeas corpus filed

under 28 U.S.C. § 2241 by Ziya Koray, an inmate at

the Allenwood Federal Prison Camp, Montgomery

Pennsylvania (“Allenwood’’). Koray seeks an order

directing the Bureau of Prisons to recompute his fed-

eral sentence to include sentence credit for time spent

confined in a halfway house as a condition of bail.

For the following reasons, the petition will be denied.

The facts are essentially undisputed. On April 23,

1991, Koray was arrested for laundering monetary

instruments in violation of 18 U.S.C. § 1956(a) (1).

He was released on bail with conditions under the

Bail Reform Act on June 25, 1991. See 18 U.S.C.

§ 3142(c). Conditions of Koray’s bail included the

26a

requirement that he remain at a halfway house 24

hours per day unless accompanied by a special agent

or authorized to leave by court order. Koray was con-

victed and sentenced on October 22, 1991, but per-

mitted to remain under conditional release until No-

vember 25, 1991. On that date, Koray reported to

Allenwood for service of his federal sentence.

By way of this petition, Koray seeks sentence credit

for the time he spent confined in the halfway house

between June 26, 1991 and November 24, 1991, al-

leging that the restrictive conditions of bail amounted

to “official detention” under 18 U.S.C. § 3585.* Koray

also argues that it violates equal protection to deny

him sentence credit but to grant such credit for pris-

oners serving their federal sentences at halfway

houses.

Though the Court of Appeals of the Third Circuit

has yet to confront either argument, the monumental

weight of authority counsels against granting the pe-

tition. See United States v. Zackular, 945 F.2d 423

(1st Cir. 1991) (official detention requirement of sec-

tion 3585 can not be fulfilled by home confinement) ;

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

1 Section 3585 provides that

A defendant shall be given credit towards the sen-

tence of a term of imprisonment for any time spent in

official detention prior to the date the sentence com-

mences

(1) as a result of the offense for which the sentence

was imposed; or

(2) as a result of any other charge for which the de-

fendant was arrested after the commission of the offense

for which the sentence was imposed;

that has not been credited against another sentence.

18 U.S.C. § 3585(b).

27a

1992) (defendant released on bail subject to house

arrest and electronic monitoring not entitled to sen-

tencing credit for time spent on bail; no equal pro-

tection violation); Tinsley v. Attorney General, 806

F.Supp. 31 (S.D.N.Y. 1992) (time spent released on

bond pending trial or sentence not time spent in “of-

ficial detention” under § 3585(b) ) ; Randall v. Whelan,

938 F.2d 522 (4th Cir. 1991) (defendant on bail in

drug rehabilitation center at all times except for court

appearances and meetings with counsel not entitled

to sentence credit) ; United States v. Insley, 927 F.2d

185 (4th Cir. 1991) (restrictive conditions of hail

including curfew and electronic monitoring do not

constitute official detention under § 3585); Starchild

v. Federal Bureau of Prisons, 973 F.2d 610 (8th Cir.

1992) (petitioner on bond under house arrest, not

allowed to leave house except to go to probation office

or court, and responsible custodians required to be

with petitioner 24 hours per day prior to sentencing

—sentence credit denied) ; Moreland v. United States,

968 F.2d 655 (8th Cir. 1992) (only time sr xt in

jail-type facility creditable as jail time and halfway

house is not a jail-type facility; no violation of equal

protection) ; United States v. Wickman, 955 F.2d 592

(8th Cir. 1992) (house arrest is not official deten-

tion within the meaning of § 3585); United States

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

spent on bond in residential treatment center prior

to commencement of sentence not creditable; no equal

protection violation). We fall in line with the many

courts that have held restrictive bail conditions do

not amount to official detention under § 8585. See

United States v. Parker, 902 F.2d 221, 222 (3d Cir.

1990) (confinement at community corrections center

subject to work release as condition of probation

28a

“cannot possibly be equated with an equivalent period

of imprisonment”). We also accept the argument that

there is no violation of equal protection under the

circumstances because the two revelant classes (pre-

sentence detainees and duly sentenced prisoners) are

not similarly situated.

NOW, THEREFORE, THIS 30th DAY OF APRIL,

1993, IT IS HEREBY ORDERED THAT:

1. The petition for a writ of habeas corpus is

denied.

2. The Clerk of Court is directed to close this

file.

8. Any appeal from this decision will be deemed

frivolous, not taken in good faith, and lacking

probable cause.

/3s/ Edwin M. Kosik

EDWIN M. KosiIk

United States District Judge

29a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-7357

ZIYA K. KORAY, APPELLANT

Vv.

FRANK SIZER;

UNITED STATES BUREAU OF PRISONS;

ATTORNEY GENERAL OF THE UNITED STATES

SUR PETITION FOR REHEARING

Present: SLOVITER, Chief Judge, BECKER, STA-

PLETON, MANSMANN, GREENBERG,

HUTCHINSON, SCIRICA, COWEN, NY-

GAARD, ALITO, ROTH and LEWIS, Cir-

cuit Judges

The petition for rehearing filed by Appellees,

FRANK SIZER; UNITED STATES BUREAU OF

PRISONS; ATTORNEY ‘GENERAL OF THE

UNITED STATES in the above-entitled case having

been submitted to the judges who participated in the

decision of this court and to all the other available

circuit judges of the circuit in regular active service,

and no judge who concurred in the decision having

30a

asked for rehearing, and a majority of the circuit

judges of the circuit in regular active service not hav-

ing voted for rehearing by the court in banc, the pe-

tition for rehearing is denied.

By the Court,

/s/ D. K. Sloviter

Chief Judge

Dated: Jun. 17, 1994

3la

APPENDIX D

SUPREME COURT OF THE UNITED STATES

No. A-166

FRANK SIZER, Warden, PETITIONER

Vv.

ZIYA KORAY

ORDER

UPON CONSIDERATION of the application of

counsel for the petitioner,

IT IS ORDERED that the time for filing a petition

for a writ of certiorari in the above-entitled case, be

and the same is hereby, extended to and including

October 15th, 1994.

/s/ David H. Souter

Associate Justice of the Supreme

‘Court of the United States

Dated this 8th day of September, 1994.

“i

32a

APPENDIX E

SUPREME COURT OF THE UNITED STATES

No. A-166

FRANK SIZER, Warden, PETITIONER

Vv.

ZIYA KORAY

ORDER

UPON CONSIDERATION of the application of

counsel for the petitioner,

IT IS ORDERED that the time for filing a petition

for a writ of certiorari in the above-entitled case, be

and the same is hereby, extended further to and

including November Ist, 1994.

/s/ David H. Souter

Associate Justice of the Supreme

Court of the United States

Dated this 11th day of October, 1994.

33a

APPENDIX F

U.S. Department of Justice

Federal Prison System

Washington, D.C. 20584

OPI : MISB

Number’ : 5880.24

Date : September 5, 1979

Subject : Sentence Computation,

Jail Time Credit

Under 18 USC 3568

Program Statement

1. PURPOSE. To establish the procedures to be fol-

lowed for making jail-time credit determinations.

2. DIRECTIVES AFFECTED. PS 5880.19, Credit

for Time in Custody Under 18 USC 3568, (5-27-75),

is superseded.

3. BACKGROUND. Prior to October 2, 1960, credit

for time in custody before sentencing was left to the

discretion of the sentencing court. The presumption

was that the sentencing judge would take the amount

of time spent in custody prior to sentencing into con-

sideration at the time sentence was imposed. This

first crediting statute (P. L. 86-691, an amendment

to 18 USC 3568) granted credit on minimum-manda-

tory sentences. These were primarily the sentences

imposed under the Harrison Narcotic Act of 1956.

Judicial decisions later extended jail credit for those

sentenced to the maximum sentence for violation of

any statute, on the presumption that the sentencing

34a

court did not take the amount of jail time into con-

sideration at the time of sentencing. As policy, this

applied only to those sentenced after the effective date

(October 2, 1960) of P. L. 86-691.

The passage of the Bail Reform Act of 1966 (P. L.

89-465) further expanded the credit to be given un-

der 18 USC 3568 to all persons sentenced on and after

the effective date of the Act (September 20, 1966).

The language of the Act required credit for all time

in custody in connection with the federal offense.

Case law confirmed the application of the Act to

YCA, FJDA, and NARA sentences. Courts also ex-

panded federal jail credit to include periods of cus-

tody wherein the primary custody was with a non-

federal agency. Credit was held to be applicable on

any subsequent federal term of confinement because

of the effect the federal charges (through a warrant

or detainer) had on the non-federal custody.

4. STATUTORY AUTHORITY. Jail time credit is

controlled by 18 USC 3568, which states “The At-

torney General shall give any such person credit

toward service of his sentence for any days spent in

custody in connection with the offense or act for

which sentence was imposed.”

5. POLICY. “In custody” is defined, for purposes

of this program statement, as physical incarceration

in a jail-type institution or facility. It does not in-

clude all time that may be considered custody for

habeas corpus jurisdiction purposes, for example in

the case of Hensley v. Municipal Court, 411 U. S. 345

(1973) (See Cochran v. U. S., 489 F.2d 691 (C.A.

5, 1974)).

35a

Any part of a day spent in custody equals one day

for credit purposes. Credit will be applied in the fol-

lowing manner for the following situations:

a. Sentences imposed prior to September 20, 1966.

Jail time credit will be applied 1.) to those sen-

tences in which the maximum penalty was im-

posed, 2.) if the penalty of imprisonment added

to the number of days in presentencing custody

the

(2)

(3)

exceeds the maximum for the offense, or 3.) if

violation required the imposition of a

minimum-mandatory penalty, and if the cri-

teria in paragraph 5.b. are met.

(1) To determine if the maximum sentence

was imposed, refer to the penalty provi-

sions of the sections violated in the appro-

priate Title of the U. S. Code. If the sen-

tence imposed represents the aggregation

of terms on more than one count, jail time

credit will be applied to the applicable

count, prior to aggregating the terms.

If a sentence is less than the maximum,

but adding the sentence to the number of

jail days exceeds the maximum for the of-

fense, then jail time credit will be applic-

able for the number of days that caused

the maximum for the offense to be exceeded.

On a sentence imposed for an offense re-

quiring the imposition of a minimum-

mandatory penalty, the sentence imposed

does not have to be the minimum-manda-

tory term. Any sentence imposed under the

section requiring the minimum-mandatory

penalty will be entitled to jail credit.

36a

b. Sentences imposed on and after September 20,

1966.

(1)

(2)

(3)

Jail time credit will be given for time

spent in the custody of the Attorney Gen-

eral (whether actual or constructive) as a

direct result of the acts or offenses which

resulted in the federal sentence. (See

Paragraph 5.c. for the criteria for con-

structive federal custody. )

Jail time credit will not be given for. any

portion of time spent serving another sen-

tence, either federal or non-federal, except

that time spent serving a sentence that is

vacated will be creditable toward another

sentence if the later sentence is based on

the same charges that led to the prior, va-

cated sentence. When failure to make bail

due to indigency is a moot point, e.g., when

another sentence is operative for the period

of time in question, and any bail would not

result in a change in custody status, then

applying jail time would be giving double

credit, i.e., credit on two separate and dis-

tinct sentences for the same period of time

contrary to the intent of 18 USC 3568 to

apply credit to sentences.

Time spent under a writ of habeas corpus

from non-federal custody will not, in itself,

be considered for the purpose of crediting

jail time. The primary reason for custody

in this case is not the federal charge. In

this situation, it is considered that the fed-

eral court “borrowed” the prisoner under

the provisions of the writ for purposes of

(4)

(5)

37a

court appearance. This is secondary cus-

tody. Credit may infrequently be given un-

der provisions of another paragraph.

Time spent in residence in a residential

community center (or a community based

program located in a Metropolitan Correc-

tional Center or jail) under P.L. 91-492 as

a condition of parole (18 USC 4209) or

probation (18 USC 3651) is not creditable

as jail time since the degree of restraint

provided by residence in a community cen-

ter is not sufficient restraint to constitute

custody within the meaning or intent of 18

USC 3568. However, time spent in a jail-

type facility (not including a community

based program located in a Metropolitan

Correctional Center or jail) as a condition

of probation is creditable as jail time be-

cause of the greater degree of restraint.

Time spent in residence in a residential

community center (or a community based

program located in a Metropolitan Correc-

tional Center or jail) under the provisions

of 18 USC 3146 as a condition of bail or

bond, including the “Pretrial Services”

program (18 USC 3152-3154), is not

creditable as jail time since the degree of

restraint provided by residence in a com-

munity center is not sufficient restraint to

constitute custody within the meaning or

intent of 18 USC 3568. Also, a “highly re-

strictive” condition of bail or bond, such as

requiring the defendant to report daily to

the U. S. Marshal, is not considered as time

38a

in custody. However, time spent in a jail-

type facility (not including a community

based program located in a Metropolitan

Correctional Center or jail) as a condition

of bail or bond is creditable as jail time be-

cause of the greater degree of restraint.

ce. Constructive Federal Custody.

(1) For time in non-federal custody when the

non-federal custody is bases [sic] on

charges that later resulted in a federal

sentence:

(a) Credit will be given for all time spent

in non-federal or foreign custody when

the underlying basis for custody in fact

is a federal warrant. For example, if a

federal warrant is issued and the pris-

oner is arrested by county police or

foreign officials on the basis of the fed-

eral warrant, credit will be given from

the date of arrest to the date of sen-

tence for all days in custody. Inquiries

-or requests for foreign jail time credit,

along with copies of the judgment and

commitment and BP-5, and copies of

any documentation in the institution

or in the possession of the inmate, must

be sent to the central office Chief of

Administrative Systems for verifica-

tion and monitoring purposes.

(b) If the federal inmate has been in pre-

sentence state custody on essentially

the same charges, credit will also be

given even though a federal detainer

39a

may not have been on file during that

time. Credit will be given for time

spent in non-federal pre-sentence cus-

tody when the non-federal and federal

charges are similar enough to be con-

sidered the same criminal act or of-

fense. This is applicable when the

factors of time, location, and the crim-

inal acts are identical in both charges.

Credit will also be given for all time

spent serving a state sentence (on the

same charges as defined in this para-

graph) which is later vacated, set

aside, or dismissed, in addition to any

other non-federal presentence time.

Following are some situation examples:

1 If a prisoner is arrested by county

police on a state charge of armed

robbery, and the prisoner is later

convicted by the federal government

of bank robbery, which bank rob-

bery occurred during the same, iden-

tical act of armed robbery, credit will

be given for all time spent in cus-

tody from the date of arrest to the

date of the imposition of the first

sentence (whether federal or non-

federal).

2 If a prisoner is arrested by state po-

lice on a state charge of auto theft,

and the prisoner is later convicted of

a Dyer Act violation, involving theft

of the same automobile in both state

and federal charges, credit will be

given for all time spent in custody

from the date of arrest to the date

of imposition of the first sentence

(whether federal or non-federal).

Credit is applicable because the state

auto theft was the same criminal

act, at the same time and place as

the Dyer Act violation.

If a prisoner is arrested by city po-

lice on a state charge of uttering a

forged check and the prisoner is

later convicted by the federal govern-

ment for mail theft, the prisoner

having obtained the check in ques-

tion from the mails, credit will not

be given. It is not the identical

criminal act. Uttering requires a

separate criminal act from theft of

the check.

If a prisoner is arrested by county

police on a state charge of armed

robbery and the prisoner is later

convicted by the federal government

for possession of an unregistered

firearm, which is the same firearm

used in the robbery, credit will be

given.

If a prisoner is arrested by county

police on a state charge of uttering

forged checks and the prisoner is

later convicted of conspiracy to de-

fraud the U.S. Government, the

checks in question being U.S. Treas-

4lia

ury checks used in the forgery,

credit will not be given.

(2) For time in non-federal custody when the

non-federal custody is based on charges

that are unrelated to the federal charges

that resulted in a federal sentence:

(a) Credit will be given on any subsequent

federal term of imprisonment (to in-

clude parole and mandatory release

violator terms) when the state with-

draws, increases, or refuses to set bail,

solely due to the fact that a federal

detainer is lodged, and the state fails

to give jail time credit for that time.

[C]redit will be given from the time

the federal detainer is lodged up to the

time the sentence is executed (either

federal or non-federal). The state au-

thorities must verify the fact that their

bail status is due to the lodging of the

federal detainer. Failure to give jail

credit (by the state) may be assumed

in any of the following events: (1)

the state charges are dismissed, (2)

the state sentence is vacated with fur-

ther prosecution deferred, thereby ef-

fectively vacating the state’s award of

jail credit, (3) state probation is

granted, or (4) the state orders their

sentence to run concurrently with the

federal sentence, and the state sen-

tence will be absorbed prior to grant

of good time, resulting in no benefit

from the state jail time. Ordinarily,

if a sentence results from state

42a

charges, there will be a presumption

that the prisoner did receive credit for

presentence time, however, this may

be rebutted if the prisoner can dem-

onstrate that the state did not credit

the time.

(b) Credit will be given when a federal

detainer is lodged, the prisoner does

not make state bail based on a pre-

sumption of indigency, and the state

fails to give jail credit for time. Credit

will be given from the date the federal

detainer was lodged up to the begin-

ning date of either the federal or non-

federal sentence, whichever occurs

first. State bail must have been set.

If the state charge was not bailable,

no credit will apply to the federal sen-

tence. Failure to give jail credit (by

the state) may be assumed in any of

the following events: (1) the state

charges are dismissed, (2) the state

sentence is vacated with further prose-

cution deferred, thereby effectively va-

cating the state’s award of jail credit,

(3) state probation is granted, or (4)

the state orders their sentence to run

concurrently with the federal sentence,

and the state sentence will be absorbed

prior to grant of good time, resulting

in no benefit from the state jail time.

Ordinarily, if a sentence results from

the state charges, there will be a pre-

sumption that the prisoner did receive

credit for presentence time, however,

43a

this may be rebutted if the prisoner

can demonstrate that the state did not

credit the time.

(3) For time spent in custody of the Surgeon -

General as a civil commitment under Title

I of NARA, credit will be given for all

time in actual institutional confinement, if

the later criminal sentence is a result of

the same offense that led to the civil com-

mitment. This is a specific provision of

NARA, as codified under Title 28, U.S.

Code, Section 2903 (d).

6. DOCUMENTATION. Credit will be given only

with proper documentation, indicating the prisoner

was in custody within the application of paragraph

5. Proper documentation will consist of written doc-

umentation for the file from any law enforcement

agency (including probation officers). This includes

verified phone and teletype messages.

When there is cause to believe that credit may be

due, arising from a request from the inmate or from

other persons speaking in his behalf, or from any

inconsistencies in the manner in which the factual

situation presents itself, an effort to obtain the docu-

mentation necessary to make a determination will be

made. Ordinarily this will consist. of one communi-

cation (with written documentation that contact was

made, either in the form of a carbon of the letter

or teletype message, or by documenting the phone

call) and one following communication if no response

is received.

If the follow-up communication still produces no re-

sponse, the matter should be referred to the Regional

44a

Office. No further action should be taken locally in

that particular case until instretion is received from

the Regional Office.

Sample letters of suggested types of communications

to other agencies are in the attachments to his Pro-

gram Statement.

/s/ Norman A. Carlson

NORMAN A. CARLSON

Director

45a

APPENDIX G

[Excerpt from Program Statement 5880.28,

Sentence Computation Under 18 USC 3585 (July 29, 1994)]

* « * * *

ce. Prior Custody Time Credit. The SRA includes

a new statutory provision, 18 U.S.C. § 3585(b), that —

pertains to “credit for prior custody” and is con-

trolling for making time credit determinations for

sentences imposed under the SRA. Title 18 U.S.C.

§ 3568, as implemented by Program Statement

5880.24, Sentence Computation, Jail Time Credit Un-

der 18 U.S.C. § 3568, was repealed effective Novem-

ber 1, 1987, but remains the controlling statute for

all sentences imposed for offenses that occurred on

or after September 20, 1966 up to November 1, 1987.

Statutory Authority: Prior custody time credit is

controlled by 18 U.S.C. § 3585(b), and states, _

“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—

(1) as a result of the offense for which

the sentence was imposed; or

(2) as a result of any other charge for

which the defendant was arrested after the

commission of the offense for which the sen-

tence was imposed;

that has not been credited against another sen-

tence.”

Definitions :

* > * * *

Official detention. “Official detention” is defined,

for purposes of this policy, as time spent under a

46a

federal detention order. This also includes time spent

under a detention order when the court has recom-

mended placement in a less secure environment or in

a community based program as a condition of pre-

sentence detention. A person under these circum-

stances remains in “official detention’, subject to the

discretion of the Attorney General and the U.S. Mar-

shals Service with respect to the place of detention.

Those defendants placed in a program and/or resi-

dence as a condition of detention are subject to re-

moval and return to a more secure environment at

the discretion of the Attorney General and the U.S.

Marshals Service, and further, remain subject to

prosecution for escape from detention for any unau-

thorized absence from the program/residence. Such a

person is not similarly situated with persons condi-

tionally released from detention with a requirement

of program participation and/or residence.

A defendant is not eligible for any credits while

released from detention. Time spent in residence in

a community corrections center as a result of the Pre-

trial Services Act of 1982 (18 U.S.C. § 3152-3154),

or as a result of a condition of bail or bond (18 U.S.C.

§ 3141-3143), is not creditable as presentence time.

A condition of bail or bond which is “highly restric-

tive,” and that includes “house arrest”, “electronic

monitoring” or “home confinement”; or such as re-

quiring the defendant to report daily to the U.S. Mar-

shal, U.S. Probation Service, or other person; is not

considered as time in official detention. Such a de-

fendant is not subject to the discretion of the U.S.

Attorney General, the Bureau of Prisons, or the U.S.

Marshals Service, regarding participation, placement,

or subsequent return to a more secure environment,

47a

and therefore is not in a status which would indicate

an award of credit is appropriate (see Randall v.

Whelan, 988 F2d 522 (4th Cir. 1991) and U.S. v

Insley, 927 F.2d 185 (4th Cir. 1991). Further, the

government may not prosecute for escape in the case

of an unauthorized absence in such cases, as the per-

son has been lawfully released from “official deten-

tion”. (EHaception: As a result of case law in the

Ninth Circuit, credit for time spent in a community

treatment center as a condition of bond (including

appeal bond) is considered the same as time spent in

“official detention” for those sentenced in the Ninth

Circuit, if they were required to spend nights in the

community corrections center. The credit follows the

inmate if transferred into some other circuit but an

inmate sentenced in a circuit other than the Ninth

Circuit shall not be given the credit if transferred

into the Ninth Circuit. This same type of credit also

applies to a defendant whose probation or supervised

release is revoked in the Ninth Circuit, providing that

the time spent in the community treatment center

occurred after the conduct that caused the probation

or supervised release to be revoked. It is unlikely that

this type of credit will ever apply to a supervised re-

lease or probation revocation sentence since the con-

duct that causes the revocation usually follows the

time spent in a community corrections center. )

Official detention does not include time spent in the

custody of the U.S. Immigration and Naturalization

Service (INS) under the provisions of 18 U.S.C.

§ 1252 pending a final determination of deportability.

An inmate being held by INS pending a civil deporta-

tion determination is not being held in “official deten-

tion” pending criminal charges. (See Ramirez-

Osorio v. INS, 745 F.2d 937, rehearing denied 751

48a

F.2d 383 (5th Cir. 1984); Shoaee v. INS, 704 F.2d

1079 (9th Cir. 1983); and Cabral-Avila v. INS, 589

F.2d 957 (9th Cir. 1978), cert. denied 440 U.S. 920,

99 S.Ct. 1245, 59 L.Ed2d 472 (1979.)

A sentence imposed by a court for “Time Served,”

means that all time spent in official detention (prior

custody time), as a result of the offense for which

sentence was imposed, is included in the “Time

Served” sentence which the court imposed and can-

not be awarded to any other sentence.

Time spent serving a civil contempt sentence prior

to trial and/or sentencing does not constitute pre-

sentence time credit toward the sentence that is even-

tually imposed.

Time spent serving a civil contempt sentence does

not constitute presentence time credit toward any

criminal sentence that has been interrupted by, or

that is running along concurrently with, or that is to

be served consecutively to, the criminal sentence.

Official detention does not include any time in a

release status even though the defendant is consid-

ered “in custody” for purposes of pursuing a habeas

corpus petition with the court, as cited by the U.S.

Supreme Court in Hensley v. Municipal Court, 411

U.S. 345 (1973) (see also Cochron v. U.S., 489 F.2d

691 (5th Cir. 1974); Villawme v. United States, 804

F.2d 498 (8th Cir. 1986} ‘per curiam), cert. denied,

481 U.S. 1022 (1987) ).

* * * * «

(2) DOCUMENTATION. Prior custody credit

will be given only with proper documentation indi-

cating that the prisoner was in official detention

within the application of paragraph 5. Proper docu-

mentation will consist of written documentation, for

49a

placement in the prisoner’s Judgment and Commit-

ment File, from any law enforcement agency (in-

cluding probation officers). This includes verified

phone, fax, or teletype messages, PSI, Rap Sheet,

Booking Sheets, Trial Transcripts, Sentry, USM

Form 129, etc.

(a) When there is cause to believe that credit may

be due, arising from an inmate request or from any

other person speaking in his or her behalf, or from

any other inconsistencies in the facts developed, an

effort to obtain the documentation necessary to make

a determination will be made. Ordinarily, this will

consist of one communication (with written dccu-

mentation that contact was made, either in the form

of a copy of the letter, fax, or teletype message, or by

documenting the phone call) and one following com-

munication if no response is received.

(b) Should the Judgment and Commitment order

make any reference to, or recommendations concern-

ing prior custody credits, the term in effect may not

be changed in an attempt to meet the language on the

Judgment and Commitment. Contact with the court

must be made, and the term in effect may only be

changed when it is specifically approved by the court.

See the ISM Manual regarding the preparation of

any correspondence directed to the courts.

(c) No credit shall be given based solely on docu-

ments or information received from a prisoner, a de-

fense attorney, or other person or organization acting

on the behalf of the inmate. Information from such

sources shall be thoroughly investigated and verified

before credit may be given.

(d) If the follow-up communication produces no

response, the matter should be referred to the appro-

priate Regional Inmate Systems Administrator.

50a

(3) QUESTIONABLE SITUATIONS. Questions

or problems that arise as to the applicability of any

of the provisions of this policy shall be referred to the

Regional Inmate Systems Administrator. Any resolu-

tion of a question or problem that may require a

decision outside of, or contrary to, this policy or that

may require a precedent setting decision, shall be re-

ferred to the Chief of Inmate Systems in the Central

Office for review.

Sla

APPENDIX H

[Filed May 8, 1994]

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

92-CV-1458

ZIYA K. KoRAY

Vv.

SIZER, ET AL.

ORDER

IT IS HEREBY ORDERED THAT ZIYA K.

KORAY, Register Number 37880-053, be released

from the Federal Prison Camp at Allenwood on. May

4, 1994, at 6:00 a.m. Pending further order by this

Court, Ziya K. Koray shall comply with the following

conditions:

—He shall report as directed to the United States

Probation Office in this district or as otherwise

directed ;

—He shall notify the Court, the Clerk of Court,

his attorney and the United States Attorney

of any change in residence address; and

—He shall not leave the United States without

the approval of the Court.

Date: May 3, 1994

/s/ Edwin M. Kosik

EDWIN M. Kosik

United States District Judge

W o. 8. coveenucer PRINTING OFFICE; 1994 387147 20001