Lopez v. Terrell

654 F.3d 176

Frank LOPEZ, Petitioner–Appellee,

v.Duke TERRELL, as Warden, Metropolitan Correctional Center, New York, Joe Norwood, as Regional Director, Northeast Region, Federal Bureau of Prisons, Respondents–Appellants.

Docket No. 10–2079–pr.

United States Court of Appeals, Second Circuit.

Argued: April 29, 2011.Decided: July 13, 2011.Rehearing and Rehearing En Banc Denied Nov. 1, 2011.

Michael J. Byars, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, for Respondents–Appellants.Joshua W. Sussman (Roberto Finzi and Robert A. Weinstock, on the brief), Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, for Petitioner–Appellee.Before: NEWMAN, CALABRESI, HALL, Circuit Judges.Judge CALABRESI concurs in a separate opinion.HALL, Circuit Judge:

Petitioner–Appellee Frank Lopez challenges the manner by which the Federal Bureau of Prisons (“BOP”) calculates Good Conduct Time (“GCT”) under 18 U.S.C. § 3624(b). Lopez maintains he should be eligible to receive GCT for the 94 months he spent in state and federal custody prior to the date on which he was sentenced in district court (in addition to his time in custody following sentencing), even though those 94 months were credited to a prior state sentence. The BOP disagrees, asserting that Lopez can accrue GCT only as to the 38 months he spent in custody after he was sentenced.

This appeal presents, therefore, a question of statutory interpretation: whether 18 U.S.C. § 3624(b), which provides that an inmate may receive GCT “toward the service of the prisoner's sentence ... of up to 54 days at the end of each year of the prisoner's term of imprisonment,” permits the award of GCT for presentence custody served by an inmate that, under 18 U.S.C. § 3585(b), cannot be credited to the defendant's federal sentence. The district court (Holwell, J.), agreeing with Lopez, held that the phrase “term of imprisonment” under 18 U.S.C. § 3624(b) means—and that an inmate can accrue GCT for—the total time served for a federal offense, both before and after sentencing, regardless of whether the inmate's presentence custody is credited to another sentence. The BOP challenges this ruling. It contends that as used in § 3624(b), an inmate's “term of imprisonment” is coterminous with his or her federal sentence as defined under 18 U.S.C. § 3585, such that he or she is eligible for GCT only as to the period of incarceration following the date of sentencing, as well as for any presentence custody credited to that period under § 3585(b).

We conclude that the BOP's interpretation of 18 U.S.C. § 3624(b) is persuasive under Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), and defer to the agency's interpretation. We therefore REVERSE the judgment of the district court granting Frank Lopez's 28 U.S.C. § 2241 petition for a writ of habeas corpus and REMAND with instructions to dismiss the petition.

BACKGROUND

I. The Statutory Framework Governing Good Conduct Time

We are concerned here principally with the interpretation and interaction of two statutes. The first, 18 U.S.C. § 3624(b), governs GCT, and provides in part:

[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.

18 U.S.C. § 3624(b)(1). The second, 18 U.S.C. § 3585, titled, “Calculation of a term of imprisonment,” provides in full:

(a) Commencement of sentence.—A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention 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 sentence was imposed;

that has not been credited against another sentence.

Id. Under § 3585(b), therefore, the BOP may grant a defendant “credit” against his federal sentence for time served in custody prior to sentencing in district court so long as that presentence custody “has not been credited against another sentence.” 18 U.S.C. § 3585(b); see United States v. Labeille–Soto, 163 F.3d 93, 99 (2d Cir.1998) (“[A] defendant has no right to credit on his federal sentence for time that has been credited against his prior state sentence.”). If a defendant's presentence custody has been credited to another sentence, no § 3585(b) credit is available, but the Sentencing Guidelines provide a functional equivalent. Under the version of the Guidelines applicable in this case, when sentencing a defendant with an undischarged term of imprisonment “that ha[s] fully been taken into account in the determination of the offense level” for the defendant's instant offense, see U.S.S.G. § 5G1.3(b), a district court:

[S]hould adjust the sentence for any period of imprisonment already served as a result of the conduct taken into account in determining the guideline range for the instant offense if the court determines that period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons.... For clarity, the court should note on the Judgment in the Criminal Case Order that the sentence imposed is not a departure from the guideline range because the defendant has been credited for guideline purposes under § 5G1.3(b) ... [for time] served in state custody that will not be credited to the federal sentence under 18 U.S.C. § 3585(b).

U.S.S.G. § 5G1.3(b), cmt. n. 2 (2000); see United States v. Gonzalez, 192 F.3d 350, 354 (2d Cir.1999) (holding that because the defendant's presentence custody was credited to his state sentence, no § 3585(b) credit was available; thus, U.S.S.G. § 5G1.3(b) applied). Section 5G1.3(b) of the Guidelines therefore applies where a “defendant faces punishment for the same criminal conduct in two prosecutions[,] ... [and] ensures that the defendant receives ‘credit’ for time already served to eliminate double punishment.” United States v. Fermin, 252 F.3d 102, 109 (2d Cir.2001) (citing Witte v. United States, 515 U.S. 389, 404–05, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995)).II. The Facts and Procedural History

On August 11, 2000, Lopez was arrested in the Bronx, New York, for selling crack cocaine, and was charged by the State of New York with criminal sale of a controlled substance in the third degree. Lopez pled guilty to that charge in November 2000 and was sentenced to an indeterminate term of four and one-half to nine years imprisonment. In November 2004, after serving four years and three months in state custody, Lopez was transferred to federal custody pursuant to a writ of habeas corpus ad prosequendum, and in April 2005, Lopez was indicted by a federal grand jury on one count of conspiracy to distribute crack cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A). The only overt act specified in the federal indictment was Lopez's August 11, 2000, sale of crack cocaine—the same offense for which he had earlier been convicted in state court.

Lopez pled guilty to the federal charge on September 27, 2007, and was sentenced on June 19, 2008; as of that date, Lopez was still serving his state sentence. The district court (Holwell, J.) determined at sentencing that Lopez was eligible for a 94–month adjustment under U.S.S.G. § 5G1.3(b) based on his presentence custody, since his prior state conviction qualified as relevant conduct with respect to his federal offense. (Because Lopez's presentence custody was credited to his state sentence, no § 3585(b) credit was available.) The court thus imposed a 132–month term of imprisonment to run concurrent with Lopez's state conviction, “with a credit for time served in state and federal custody from [August] 11, 2000.” The district court clarified in its written judgment that the term of imprisonment was 132 months, minus 94 months for time already served, which resulted in an actual term of 38–months imprisonment. After sentencing, Lopez was remanded to state custody to serve the remaining portion of his undischarged state sentence, which he completed on December 31, 2008. He then returned to federal custody to complete his federal sentence.

In early 2009, Lopez discovered that the BOP had calculated his release date as March 22, 2011, based on its determination that he was eligible for GCT only as to the 38 months he served following his date of sentencing in district court. Lopez challenged this calculation in a letter submitted to the BOP, asserting that because the district court had sentenced him to 132–months imprisonment on his federal conviction, he should be eligible for GCT for the entirety of that 132–month term—i.e., from his arrest on August 11, 2000, onward. In a letter dated March 27, 2009, BOP Assistant General Counsel Sonya Cole explained that based on the agency's interpretation of 18 U.S.C. § 3585(a), the earliest date a federal sentence could commence was the date of imposition, which meant, for purposes of calculating Lopez's GCT, that the relevant term of imprisonment was 38 months. Dissatisfied with this response, Lopez filed a complaint through the BOP's Administrative Remedy Program (“ARP”...