Opinion
No. 3:04-CV-1811-N.
November 18, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and a standing Order of the Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusion, and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
Statement of the Case:
Petitioner is confined as an inmate of FCI Seagonville, Texas serving a felony drug conviction imposed by the United States District Court for the District of Kansas on June 9, 2003. Respondent is the warden at FCI Seagonville.
Findings and Conclusions:
In his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 Harvey challenges the Bureau of Prisons's interpretation of 18 U.S.C. § 3624(b) as implemented in 28 C.F.R. § 523.20 and P.S. 5880.28. Petitioner has exhausted his administrative remedies.
§ 3624(b)(1) reads, in pertinent part,
Subject to paragraph (2), a prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner's life, may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations . . . Subject to paragraph (2), credit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.
Petitioner takes exception to the methodology of calculation used by the Bureau of Prisons in the partial year served at the completion of the sentence. Currently, the bureau uses the amount of time actually served by the prisoner for the computation of the amount of good conduct time. ( See Motion to Dismiss, or in the Alternative to Deny, Petition for Writ of Habeas Corpus with Brief at 6-8). Petitioner argues that the Bureau of Prisons should calculate the maximum amount of good conduct time using the time imposed at the time of sentencing.
Harvey first contends that the plain meaning of § 3624(b)(1) requires that he receive 54 days credit for every year imposed at the time of sentencing. Although the Fifth Circuit has not addressed the issue raised by Harvey, the Ninth Circuit addressed it in Pacheco-Camacho v. Hood, 272 F.3d 1266 (9th Cir. 2001). That court found that § 523.20 was entitled to deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778 (1984) and that the Bureau of Prisons's interpretation of § 3624(b) was reasonable. Pacheco-Camacho, 272 F.3d 1266.
Petitioner contends that the plain language of the statute supports his computational methodology. "Term of imprisonment," he says, is clearly different from "time served." He cites United States v. Morales-Alejo, 193 F.3d 1102, 1105-06 (9th Cir. 1999) for the proposition that courts distinguish between "terms of imprisonment" and "detention". However, the Ninth Circuit expressly rejected such a definitional usage of Morales-Alejo in Pacheco-Camacho, 272 F.3d at 1269. A plain reading of § 3624(b) does not make it clear what amount of time should be used as the standard of prorating. Id.
Harvey also cites to White v. Scibana, 314 F.Supp.2d 834 (W.D. Wis. 2004), wherein the district court rejected Pacheco-Camacho and found "that Congress had the unambiguous intent to define the phrase `term of imprisonment' to mean `sentence imposed'" and therefore "the bureau did not have authority to promulgate a regulation that uses `time served' as the basis for the calculation." Id. at 841. This decision, however, is contrary to the majority of holdings, which have upheld the Bureau of Prisons's interpretation of § 3624(b). E.g., Brown v. Hemingway, 53 Fed. Appx. 338 (6th Cir. 2002); Williams v. Lamanna, 20 Fed. Appx. 360 (6th Cir. 2001); Loeffler v. Bureau of Prisons, 2004 WL 2417805 *3-4 (Oct. 29, 2004) (Magistrate Judge's recommendation rejecting the reasoning behind White); Graves v. Bledsoe, 2004 WL 1941231 (W.D. Va. August 19, 2004) (refusing to follow White); Pascuiti v. Drew, 2004 U.S. Dist. LEXIS 10352 (N.D.N.Y. June 2, 2004).
Petitioner also contends that the legislative history of the statute supports his interpretation. His contention that the changes in language from the earlier legislation support his position was rejected by the Ninth Circuit in Pacheco-Camacho, 272 F.3d at 1269-70. This argument was also rejected by White, the one case which has granted habeas relief on this ground. See White, 314 F.Supp.2d at 839-40. Harvey also quotes Senator Joseph Biden who stated that a prisoner with a ten year sentence can receive at most one and a half years of good time credits. 141 Cong. Rec. S2348-01 (Feb. 9, 1995). Senator Biden was the co-author of the Comprehensive Crime Control Act of 1984. See White, 314 F.Supp.2d at 840. His statements were therefore made years after the bill was enacted and so have little probative value. See, e.g., Doe v. Chao, 560 U.S. 614, 124 S.Ct. 1204, 1212 (2004) ("subsequent legislative history will rarely override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment"); Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 185, 114 S.Ct. 1439, 1452 (1994) ("we have observed on more than one occasion that the interpretation given by one Congress (or a committee or Member thereof) to an earlier statute is of little assistance in discerning the meaning of that statute"); White, 314 F.Supp.2d at 840 (noting that the probative value of Senator Biden's comments is limited).
Under the Chevron doctrine, a court must first determine if Congress has spoken on an issue in such a manner that their intent is clear. Chevron, 467 U.S. at 842, 104 S.Ct. at 2778. The second prong of the Chevron test requires the court to determine if the regulation is "based on a permissible construction of the statute." Pacheco-Camacho, 272 F.3d at 1270 (quoting Chevron, 467 U.S. at 843, 104 S.Ct at 2778). This first requires a determination of whether Congress has vested the agency with authority to "elucidate a specific provision of the statute by regulation." Pacheco-Camacho, 272 F.3d at 1270 (quoting Chevron, 467 U.S. at 843-44, 104 S.Ct at 2778). The statute does not explicitly vest the Bureau of Prisons with such authority, but the authority is implied by the authority to grant good time credits. Pacheco-Camacho, 272 F.3d at 1270. Also, the language of § 3624(b)(1) implicitly charges the Bureau of Prisons with the implementation of prorating. Thus, § 523.20 falls within the implied authority of the Bureau of Prisons and is entitled to judicial deference. Id.
A court "may reverse an agency's construction of an ambiguous or silent statute only if [it] find[s] it to be `arbitrary, capricious, or manifestly contrary to the statute.'" El Paso Elec. Co. v. F.E.R.C., 201 F.3d 667, 670 (5th Cir. 2000) (quoting Chevron, 467 U.S. at 844, 104 S.Ct. at 2778). "The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. at 2782 n. 11. "Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. at 2782. The court should give the Bureau of Prisons's interpretation great deference. See, e.g., Sanderson Farms, Inc. v. N.L.R.B., 335 F.3d 445, 452 n. 8 (5th Cir. 2003). Neither the plain language of the statute nor the legislative history cited by Harvey can overcome the judicial deference which must be given to § 523.20.
Finally, Harvey claims that the Bureau of Prisons's interpretation is not entitled to deference because it is subject to the rule of lenity. The rule of lenity arises out of concern for individual rights and belief that defendants should be given fair warning as to what constitutes criminal conduct. United States v. Marek, 238 F.3d 310, 322 (5th Cir. 2001). It applies in the very narrow ambit of criminal statutes and the penalties imposed for criminal conduct. See Id.; see also United States v. John, 309 F.3d 298, 301 (5th Cir. 2002). Since § 3624(b) is not concerned with crimes and their punishment, nor does it trigger the correct concerns, it is not a penal statute for purposes of the rule of lenity. Therefore the Chevron doctrine applies, since § 3624 was adopted through the notice and comment procedure. See, e.g., United States v. Mead Co., 533 U.S. 218, 227, 121 S.Ct. 2164, 2171 (2001); see also Pacheco-Camacho, 272 F.3d at 1268, 1271.
As related above, the meaning of the statutory language is ambiguous. The Bureau of Prisons's interpretation of the statue is reasonable and is not effected to subvert the will of Congress. See Pacheco-Camacho, 272 F.3d at 1270-71 ("This interpretation comports with the statutory language of section 3264(b), and does not subvert the statutory design. It establishes an effective and fair prorating scheme, enabling inmates to calculate with reasonable certainty the end of their imprisonment, while preventing certain prisoners from receiving disproportionate good time credits . . ."). Therefore, the court must uphold the Bureau of Prisons's interpretation. See, e.g., Chevron 467 U.S. at 844, 104 S.Ct. at 2782 ("Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.")
Recommendation:
For the forgoing reasons it is recommended that the § 2241 petition for habeas relief be DENIED.
A copy of this recommendation shall be transmitted to Petitioner and to counsel for Respondent.