Opinion
Civ. No. 03-5476 (RHK/FLN).
May 5, 2004
Kenneth R. James, pro se, for Petitioner.
Lonnie Bryan, Assistant U.S. Attorney, for Respondent.
REPORT AND RECOMMENDATION
THIS MATTER came before the undersigned on Petitioner's Writ of Habeas Corpus [#1]. The Court issued an Order Directing Respondent to Show Cause Why Writ Should Not be Granted [#5], and the Respondent filed a Response [#6]. The matter has been referred to the undersigned for Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1(c).
I. FACTUAL BACKGROUND
Mr. Kenneth R. James brought this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Mr. James is in custody at the Federal Correctional Institution in Waseca, Minnesota (FCI Waseca). (Petition, 2). Mr. James was convicted in the U.S. District Court for the District of Idaho. (Id.). He was sentenced on January 15, 1999, to 84 months followed by three years of supervised release for a violation of 18 U.S.C. §§ 2115 and 500, Forcibly Breaking Into a Post Office and Theft of Postal Money Orders and Possession of Stolen Postal Money Orders. (Declaration of Ann C. Kinyon, 2 ¶ 3). Mr. James has a projected release date of March 14, 2005, via good conduct time release. (Id.). The Respondent concedes that Mr. James has properly exhausted his administrative remedies. (Id. at 3 ¶ 6).
Mr. James contends that the Bureau of Prisons (BOP) has violated his due process rights because the BOP has miscalculated his good time credits by seven days a year. (Petition, 3). The Respondent contends that this Court should deny Mr. James' Petition because 18 U.S.C. § 3624(b)(1) provides that good time credits are awarded at the end of each year and prorates the award for partial years. (Respondent's Response). Mr. James applied to proceed in forma pauperis [#3], and the undersigned granted that request on October 16, 2003 [#5].
II. DISCUSSION
Mr. James argues that the BOP formula and regulations conflict with the governing statute. Specifically, he asserts that when the statute awards 54 days at the "end of each year of the prisoner's term of imprisonment" the award should be based on the sentence imposed without regard to the time actually served. Mr. James contends that under BOP policy he will receive a potential award of 329 days of good time credit, whereas if he were granted the relief he requests he would earn 395 days of good time credit. (Mem. of Law in Supp. of Pet. for Writ of Habeas Corpus, 3). The issue before the Court is whether or not the BOP policy and practice of calculating good time credits based on time served, as opposed to the sentence imposed, is consistent with 18 U.S.C. § 3624(b)(1). According to Mr. James, the BOP's policy is contrary to the intent of Congress that prisoners are eligible to earn 54 days for each year of the term of imprisonment. (Id.). The Respondent contends that this Court should followPacheco-Camacho v. Hood, 272 F.3d 1266 (9th Cir. 2001) and hold that the BOP is properly crediting good time by apportioning it over the actual time served.
Title 18 U.S.C. § 3624(b) provides:
[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 . . . 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.
The BOP regulation interpreting § 3624 states, "[p]ursuant to 18 U.S.C. 3624(b) . . . an inmate earns 54 days credit toward service of sentence (good conduct time credit) for each year served. This amount is prorated when the time served by the inmate for the sentence during the year is less than a full year." 28 C.F.R. § 523.20.
Under these provisions, at the end of each year the BOP determines whether the prisoner has met the requirements for good time, and if so, it may award him credit for an extra 54 days towards the remainder of his sentence. On the prisoner's anniversary date, the 54 days are subtracted from the prisoner's release date. The problem arises during the last year of the prisoner's sentence because the prisoner can't wait until the end of the year to receive his good time credits. If the prisoner has less than a year to serve, the amount of good time credits that he is eligible for is prorated based on the time left to serve, as opposed to the sentence imposed. Under this policy, the prisoner is not eligible for as much good time credit as he would be if the prorated good time credit was calculated on the rest of the sentence imposed. In essence, the BOP calculates good time credit based on time actually served and not the total length of the imposed sentence.
The calculation method can be found in detail in the BOP Program Statement, which explains how the program works in various situations. See BOP Program Statement 5880.28.
A. There Is No Plain Meaning in the Statute
This Court must review Mr. James' claim that the BOP regulations violate his due process rights, with the deference that must be given to an agency's interpretation of the statute it administers. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). The BOP adopted 28 C.F.R. § 523.20 through the notice-and-comment procedure, and the agency's interpretation is entitled to deference under Chevron. See Pacheco-Camacho v. Hood, 272 F.3d 1266, 1268 (9th Cir. 2001). Under Chevron the court must first determine if, based on the statute itself, whether or not "Congress has directly spoken to the precise question at issue," in such a way that "the intent of Congress is clear." Chevron, 467 U.S. at 842 (quoted in Pacheco, 272 F.3d at 1268)). If the statute is silent or ambiguous on the question, then the second step is whether or not the agency's interpretation is based on a permissible construction of the statute. See id. 18 U.S.C. § 3624(b) does not delineate how credit for the last portion of a year of a prisoner's term is to be prorated. Nor does the statute clearly define what "term of imprisonment" means. See Bush v. Anderson, NO. 03-3535 (RHK/JGL) (Report Recommendation, D. Minn., Oct. 17, 2003) (citing Pacheco, 272 F.3d at 1268)). As the Ninth Circuit stated in Pacheco:
[T]he words of the statute do not provide clear guidance as to what the phrase `term of imprisonment means. At the very least, the plain language of section 3624(b) certainly does not compel [the petitioner's] conclusion that the `term of imprisonment' must refer to a sentence imposed in judgment, as opposed to the time actually served. If anything, this reading is inconsistent with the statute, which provides that `credit for the last year . . . of the term of imprisonment shall be prorated.'Pacheco, 272 F.3d at 1268 (emphasis in original). If the court used the interpretation suggested by Mr. James and the petitioner in Pacheco, a prisoner with one year left would be eligible for 54 days of credit, which means the prisoner would only serve 311 days. The prisoner would receive credit for the full year, even though he only served eighty-five percent of the year, giving the prisoner a bonus during his last year of imprisonment. See id. at 1269. There is nothing in the statute that suggests that Congress intended to give prisoners this bonus in their last year. See id.
Mr. James also argues that we should interpret "term of imprisonment" as the time imposed in the judgement because that is consistent with other statutes such as 18 U.S.C. § 4101(b) and 18 U.S.C. § 3582 which distinguish between imprisonment and detention. However, the rule of statutory construction states that a court should apply a "common sense meaning to the text of the statute and interpret its provisions in a manner logically consistent with the Act as whole." Harmon Industries, Inc. v. Browner, 191 F.3d 894 (8th Cir. 1999) (emphasis supplied) (citing Windsor on the River Assoc., Ltd. v. Balcor Real Estate Fin., Inc., 7 F.3d 127, 130 (8th Cir. 1993)). The statutes cited by Mr. James are not in the same act as § 3624(b). These sections have nothing to do with the administration of good time credits. Section 3582 sets forth factors to consider in imposing a sentence. Section 4101 defines terms for a chapter on the transfers of prisoners to or from a foreign country. Because these statutes have little or nothing to do with the statute at issue, these provisions are not relevant. See Martinez v. Wendt, 2003 WL 22456808 *3 (N.D. TX 2003). These irrelevant statutory cites do not provide a plain meaning for 18 U.S.C. § 3624.
The court in Pacheco also observed that there was nothing in the legislative history of section 3624(b) that clarified the meaning of "term of imprisonment." See Pacheco, 272 F.3d at 1269-70. Mr. James makes the same argument that the Petitioner made in Pacheco, that is, that earlier formulations of § 3624 computed good time credits after every month and that in the new statute Congress intended to simplify the computation to crediting time against the sentence and not time served. The court in Pacheco rejected this argument. See id. at 1269. The court held that Congress' goal was not only simplicity, because otherwise it could have chosen not to award any good time credits in the last year or to award the full 54 days regardless of whether the prisoner serves the full year in prison. There is nothing in the legislative history that compels the interpretation suggested by Mr. James. Contrary to the Petitioner's suggestion, neither § 3624(b) nor the legislative history is clear on the issue of prorating good time credits in the last year. There is no plain meaning of the statute for this Court to give effect to and, therefore, we must turn to the next step in the Chevron analysis.
B. The BOP's Interpretation of the Statute is Reasonable
The statute does not clarify Congress' intent with regards to the specific question at issue, whether the sentence imposed or the time served should be used as the basis of proration. The second step under Chevron is to inquire whether the BOP's interpretation of the statute is "based on a permissible construction of the statute." Chevron, 467 U.S. at 843. First, we must determine if Congress expressly or implicitly delegated authority to the agency to "elucidate a specific provision of the statute by regulation." Id. at 843-44. Nothing in the statute explicitly vests the BOP with the power to determine the basis for prorating good time credits. See 18 U.S.C. § 3624;Pacheco, 272 F.3d at 1270. Numerous courts have concluded that the BOP has been delegated the authority to award good time credit under § 3624. See, e.g. Asare v. United States Parole Comm'n, 2 F.3d 540, 543 (4th Cir. 1993); Trevino-Casares v. United States Parole Comm'n, 992 F.2d 1068, 1070 (10th Cir. 1993); United States v. Evans, 1 F.3d 654, 654 (7th Cir. 1993);Gonzales v. United States, 959 F.2d 211, 212 (11th Cir. 1992). Given that the BOP has the statutory power to award good time credits to federal inmates, the court in Pacheco concluded that the BOP also has the authority to determine the basis for prorating good time credits. See Pacheco, 272 F.3d at 1270.Pacheco further held that such authority was also implied by the language in the statute requiring, "credit for the last year or portion of a year . . . shall be prorated." See id. The court concluded that such language implicitly gave the BOP authority to implement the "proration scheme." Id. This court finds the analysis of the Ninth Circuit persuasive and agrees that the BOP has the implicit authority to determine how to prorate an inmate's good time credit.
Given this authority, the BOP's regulation regarding 18 U.S.C. § 3624 should receive deference, as long as the BOP's interpretation is reasonable. See Chevron, 467 U.S. at 844. In determining whether an agency's interpretation is reasonable, "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."Id. at 853 n. 11. Rather, the issue is whether the court is "compelled to reject the agency's construction." Pacheco, 272 F.3d at 1270. Several Courts have held that the BOP's interpretation of the statute is reasonable. See id. at 1270-71; Bush v. Anderson, NO. 03-3535 (RHK/JGL) (Report Recommendation, D. Minn., Oct. 17, 2003); Brown v. Hemingway, 2002 WL 31845147 (6th Cir. 2002); Martinez, 2003 WL 22456808 *3. The BOP's regulation does not conflict with the section 3624(b) and it established an "effective and fair prorating scheme, enabling inmates to calculate with reasonable certainty the end of their imprisonment." Pacheco, 272 F.3d at 1270-71. We agree with these cases and conclude that the BOP's regulation interpreting 18 U.S.C. § 3624(b) is reasonable.
C. The Rule of Lenity Does Not Apply
Mr. James argues that even if the meaning of § 3624 is ambiguous, this Court should apply the rule of lenity in determining the meaning of the statute. This argument was also rejected in Pacheco. The Supreme Court has stated that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." Jones v. United States, 529 U.S. 848, 858 (2000) (citing Rewis v. United States, 401 U.S. 808, 812 (1971)). The rule of lenity only applies when there is an ambiguity in the statute, "when there are two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and definite language." McNally v. United States, 483 U.S. 350, 359-360 (1987); see also Lewis v. United States, 445 U.S. 55, 65 (1980). The rule applies to both substantive criminal prohibitions and the penalties for breaking such laws. Bifulco v. United States, 447 U.S. 381, 387 (1980). The Supreme Court has stated, "[w]e have never suggested that the rule of lenity should provide the standard for reviewing facial challenges to administrative regulations whenever the governing statute authorizes criminal enforcement." Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon, 515 U.S. 687, at 704 n. 18. The rule of lenity is not the first rule of statutory construction that the court should consider, rather "the rule of lenity comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers."Chapman v. United States, 500 U.S. 453, 463 (1991)).
In Lopez v. Davis, 531 U.S. 230, 244 (2001), the Supreme Court considered a prisoner's challenge to BOP regulations which denied the prisoner the right to a sentence reduction after a drug treatment program because the prisoner was convicted of a violent felony. The Court held that the use of the word "may" in the statute gave the BOP discretion to exclude categories of inmates from the sentence reduction program, and further that the BOP regulation was reasonable. See id. Despite the prisoner's suggestion, the Court refused to apply the rule of lenity on the issue. See id. at 244 n. 7. The Court stated that the rule of lenity did not apply to the case because, "the statute cannot be read to prohibit the Bureau from exercising its discretion categorically." See id. Based on Lopez andBabbitt, the Ninth Circuit in Pacheco concluded that an agency can resolve statutory ambiguity through a valid federal regulation and that the rule of lenity did not negate the BOP's reasonable interpretation of the statute. See Pacheco, 272 F.3d at 1271-72. We agree with the Ninth Circuit that, given the discretion awarded to the BOP and its reasonable interpretation of § 3624, the rule of lenity should not be applied to reject the BOP's construction of the statute.
Furthermore, applying the rule of lenity in this case would not promote the policies underlying that rule of statutory construction. See Bush v. Anderson, NO. 03-3535 (RHK/JGL) (Report Recommendation, D. Minn., Oct. 17, 2003). The rule of lenity is based on two presumptions. First, people should be given fair warning, in understandable language, "of what the law intends to do if a certain line is passed." Babbitt, 515 U.S. at 704. Secondly, it is up to the legislatures and not the courts to define criminal activity. See id. The BOP regulations at issue became effective in November 1997, after a notice and comment procedure. Mr. James had fair notice of this regulation before he committed his crime. Further, the court is not defining any criminal activity in upholding 28 C.F.R. § 523.20. The policy rationales underlying the rule of lenity do not support its application in this case.
The BOP has resolved any ambiguity in 18 U.S.C. § 3624(b). The BOP's regulation, 28 C.F.R. § 523.20 is a reasonable interpretation of the statute. Mr. James' good conduct credits have been calculated according to the BOP's interpretation of § 3624(b). The BOP's interpretation is constitutional and Mr. James' due process rights have not been violated by the BOP's regulation. Mr. James' Petition for Writ of Habeas Corpus should be denied.
III. RECOMMENDATION
Based on all the files, records and proceedings herein, IT IS HEREBY RECOMMENDED that Petitioner's Writ of Habeas Corpus [#1] be DENIED.