272 F.3d 1266 (9th Cir. 2001), 01-35040, Camacho v. Hood

Docket Nº:01-35040
Citation:272 F.3d 1266
Party Name:FRANCISCO PACHECO-CAMACHO, PETITIONER-APPELLANT, v. ROBERT HOOD, WARDEN, FEDERAL CORRECTIONAL INSTITUTION, SHERIDAN OREGON, RESPONDENT-APPELLEE.
Case Date:November 30, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1266

272 F.3d 1266 (9th Cir. 2001)

FRANCISCO PACHECO-CAMACHO, PETITIONER-APPELLANT,

v.

ROBERT HOOD, WARDEN, FEDERAL CORRECTIONAL INSTITUTION, SHERIDAN OREGON, RESPONDENT-APPELLEE.

No. 01-35040

United States Court of Appeals, Ninth Circuit

November 30, 2001

Argued and Submitted February 14, 2001

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Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, Oregon, argued the cause for the petitioner-appellant.

Tim W. Simmons, Assistant United States Attorney, Portland, Oregon, argued the cause for the respondent-appellee.

Appeal from the United States District Court for the District of Oregon; Anna J. Brown, District Judge, Presiding. D.C. No. CV-01-00015-BR

Before: Alarcon, Kozinski and Hawkins, Circuit Judges.

Kozinski, Circuit Judge.

Francisco Pacheco-Camacho was an exemplary prisoner. Serving his sentence of a year and a day, he earned the maximum number of good time credits permissible under federal law. Pacheco says that number is fifty-four days, but Bureau of Prisons (BOP) regulations allow him only forty-seven. This appeal is about the disputed seven days.1

I.

A federal prisoner may receive "up to fifty-four 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 the BOP's determination that "during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations." 18 U.S.C. § 3624(b)(1). Under this scheme, at the end of each year, the BOP determines whether the prisoner has been naughty or nice. If the latter, it may award him credit for an extra fifty-four days towards the remainder of his sentence.

The counting gets a bit tricky during the last year--or portion of a year--of the prisoner's sentence, because he obviously can't wait until the year's end to receive his credit. Recognizing this, the law provides that "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." Id. The BOP has promulgated an implementing regulation, which adopts the amount of time actually served by a prisoner as the basis for the proration. 28 C.F.R. § 523.20. The regulation consequently prorates the fifty-four days of credit a year earned by the model prisoner to 0.148 day of credit for

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every actual day served during good behavior (54/ 365 = 0.148). At this rate, a prisoner who behaves himself may complete a sentence of a year and a day after serving 319 days in prison. At that point, the prisoner will have earned forty-seven days of good time credits (319 x 0.148 = 47.212), which, when added to time served, would make up the full 366 days of his sentence (319 + 47 = 366).2

Pacheco argues that this formula conflicts with the governing statute. In his view, when the statute awards fifty-four days "at the end of each year of the prisoner's term of imprisonment," this award should be based on the sentence imposed, without regard to the time actually served. According to Pacheco, "term of imprisonment" has a particular meaning. Because "[t]he term `imprisonment' consistently is used to refer to a penalty or sentence," United States v. Morales-Alejo, 193 F.3d 1102, 1105 (9th Cir. 1999), Pacheco urges us to find that "term of imprisonment," as used in 18 U.S.C. § 3624(b), must refer to the period of time imposed by the judgment, rather than to the time actually served. Accordingly, where a prisoner is sentenced to a term of imprisonment of a year and a day, he would be entitled to earn up to fifty-four days of good time credits even if he never actually serves the entire year. By Pacheco's calculation, we must start at the end of the sentence--the 366th day--and subtract fifty-four days, allowing Pacheco to be released after only 312 days.

II.

We review Pacheco's claim that the BOP regulations have improperly deprived him of his duly-earned good time credits with the deference that must be accorded to an agency's interpretation of the statute it administers. Because the BOP regulation in question, 28 C.F.R. § 523.20, was adopted through the notice-and-comment procedure, it is entitled to the full deference mandated by Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). See McLean v. Crabtree, 173 F.3d 1176, 1183 (9th Cir. 1999), cert. denied, 528 U.S. 1086 (2000). In accordance with Chevron, we first examine the statute itself to determine whether "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. If our answer is negative--as it would be when "the statute is silent or ambiguous"--we proceed to the second step, where we decide whether the agency's interpretation "is based on a permissible construction of the statute." Id. at 843.

In this case, the 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 Pacheco's conclusion that the "term of imprisonment" must refer to a sentence imposed in the 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 . . . ." 18 U.S.C. § 3624(b)(1) (emphasis added). Instead of a prorated portion, Pacheco wants the entire fifty-four days of credit--even though he never served the full 365 days. Whereas the

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model prisoner will ordinarily receive his fifty-four-day credit after complying with prison disciplinary rules for 365 days, under Pacheco's reading, a prisoner who serves 311 days would receive the same number of credits for exhibiting good behavior over only eighty-five percent of the year. Pacheco's interpretation would therefore confer upon the prisoner a bonus during his last year of imprisonment. Nothing in the statute clearly suggests that Congress intended to give the prisoner such a windfall in his last year.

Contrary to Pacheco's contention, United States v. Morales-Alejo, 193 F.3d 1102 (9th Cir. 1999), doesn't aid his argument. In that case, we considered whether a prisoner locked up for pretrial 1 detention was "imprisoned in connection with a conviction" for the purpose of tolling his period of supervised release under 18 U.S.C. § 3624(e). Morales-Alejo, 193 F.3d at 1104. We held that "imprisonment" meant only the period of incarceration that the prisoner serves as a "penalty or sentence" for his crime, and not the pre-trial detention period, the purpose of which is to protect the public and to ensure the prisoner's appearance at trial. Id. at 1105. In our case, the prisoner's "term of imprisonment " would refer to the time he spends in prison pursuant to his "penalty or sentence." Because Pacheco has been earning good time credits towards his term of imprisonment, and there is no claim that Pacheco had been imprisoned on some basis other than the one for which his sentence of a year and a day had been imposed, Morales-Alejo is...

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