Koray v. Sizer

• Decision Date: 25 April 1994
• Docket Number: No. 93-7357,93-7357
• Citation: 21 F.3d 558
• Parties: Ziya K. KORAY, Appellant v. Frank SIZER; United States Bureau of Prisons; Attorney General of the United States.
• Court: U.S. Court of Appeals — Third Circuit

Page 558

21 F.3d 558

Ziya K. KORAY, Appellant v. Frank SIZER; United States Bureau of Prisons; Attorney General of the United States.

No. 93-7357.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit

LAR 34.1 March 4, 1994.

Decided April 25, 1994.

Ziya K. Koray, pro se.

David M. Barasch, U.S. Atty., Frederick E. Martin, Robert J. DeSousa, Asst. U.S. Attys., Lewisburg, PA, for appellees.

Before: SLOVITER, Chief Judge COWEN and LEWIS, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Chief Judge.

I.

On April 23, 1991, Ziya Koray was arrested for laundering monetary instruments in violation of 18 U.S.C. Sec. 1956(a)(1). On June 18, 1991, Koray entered a guilty plea. On June 25, 1991, a federal Magistrate Judge released Koray pursuant to 18 U.S.C. Sec. 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 Volunteers 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 sentenced Koray to 41 months imprisonment with two years of supervised release. Koray remained at the Volunteers of America halfway house until November 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. Sec. 3585 (1988). However, the Bureau of Prisons declined to credit him for the approximately 150 days he was confined to the Volunteers of America facility. After exhausting his administrative 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 restrictive conditions. The district court found that restrictive release conditions can never amount to "official detention" under section 3585(b) and denied the petition for a writ of habeas corpus. Koray filed this timely appeal. The district court had jurisdiction under 28 U.S.C. Sec. 2241 (1988). We have appellate jurisdiction under 28 U.S.C. Sec. 1291 (1988) and review this question of statutory interpretation de novo. ¹ See Barden v. Keohane, 921 F.2d 476, 479 (3d Cir.1990).

II.

Credit for prior custody is determined by 18 U.S.C. Sec. 3585(b), which provides:

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.

(emphasis added). The relevant question is whether "official detention" includes a court order of confinement in a facility such as a halfway house as a condition of bail.

A.

Prior to 1960, sentencing courts gave credit toward the sentence imposed for time spent in pre-sentence custody. See Soyka v. Alldredge, 481 F.2d 303, 305 & n. 6 (3d 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 increased. To avoid the disparity between those sentenced 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. Sec. 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 minimum mandatory sentence." Pub.L. No. 86-691, Sec. 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 minimums, increasing the offenses which could be counted for credit and removing any mention of bail. It required 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, Sec. 4, 80 Stat. 214, 217 (1966) (codified at 18 U.S.C. Sec. 3568 (1982)).

In the Sentencing Reform Act of 1984, Congress rewrote section 3568 and recodified it as section 3585(b). See Pub.L. No. 98-473, 98 Stat. 1998, 2001 (1984). "Congress entirely rewrote Sec. 3568 when it changed it to its present form in Sec. 3585(b). It rearranged its clauses, rephrased its central idea in the passive voice, and more than doubled its length." United States v. Wilson, --- U.S. ----, ----, 112 S.Ct. 1351, 1355, 117 L.Ed.2d 593 (1992). "Congress altered Sec. 3568 in at least three ways when it enacted Sec. 3585(b). First, Congress replaced the term 'custody' with the term 'official detention.' Second, Congress made clear that a defendant could not receive a double credit for his detention time. Third, Congress enlarged the class of defendants eligible to receive credit." Id. --- U.S. at ---- - ----, 112 S.Ct. at 1355-56.

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 before 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 (3d 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." Id. at 20 (quotation omitted). The defendant then remained at large in 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 entitled as a matter of law to credit for the time he spent in the Witness Protection Program, stating "[g]enerally, a defendant is not entitled to credit for time spent released on his own recognizance prior to entering prison." Id. at 21. Therefore, we rejected the defendant's contention that failure to credit his sentence for time spent in the Witness Protection Program was a breach of the plea agreement, stating:

The plea agreement specifically provided that he would be given credit for periods of incarceration prior to sentencing. By statute, credit for time prior to commencement of the sentence is given for time spent in custody. However, custody 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 required to equate his life in the Witness Protection 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 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 considered 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 because six months in the community center was equivalent 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." Id. at 222. Parker presents less assistance than Golden, and Golden is itself not directly 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, --- U.S. ----, 113 S.Ct. 675, 121 L.Ed.2d 598 (1992); United States v. Becak, 954 F.2d 386, 387-88 (6th Cir.), cert. denied,...