394 F.3d 45 (1st Cir. 2005), 04-1486, Perez-Olivio v. Chavez

Docket Nº:04-1486.
Citation:394 F.3d 45
Party Name:Jimmy PEREZ-OLIVO, Petitioner, Appellant, v. Ricardo E. CHAVEZ, Warden, M.D.C. Guaynabo, Respondent, Appellee.
Case Date:January 07, 2005
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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394 F.3d 45 (1st Cir. 2005)

Jimmy PEREZ-OLIVO, Petitioner, Appellant,

v.

Ricardo E. CHAVEZ, Warden, M.D.C. Guaynabo, Respondent, Appellee.

No. 04-1486.

United States Court of Appeals, First Circuit

January 7, 2005

Heard Oct. 6, 2004

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Judith H. Mizner, Assistant Federal Public Defender, by appointment of the court, for appellant.

Jimmy Perez-Olivo, on brief, pro se.

Nelson Perez-Sosa, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, was on brief for appellee.

Before LYNCH, Circuit Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Senior Circuit Judge.

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STAHL, Senior Circuit Judge.

Jimmy Perez-Olivo ("Perez-Olivo") appeals the denial of his petition for a Writ of Habeas Corpus filed under 28 U.S.C. § 2241. He alleges that the Bureau of Prisons ("BOP") has wrongly interpreted 18 U.S.C. § 3624(b) (1), thereby depriving him of the possibility to earn a maximum of fifty-four days of good conduct time for each of the ten years he has been sentenced to serve. Finding the GCT statute to be ambiguous under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and the BOP's interpretation reasonable, we affirm the decision of the district court.

I. BACKGROUND

Petitioner-appellant Perez-Olivo is currently serving year nine of a ten-year sentence, imposed after he pleaded guilty to one count of violating 21 U.S.C. § 841(a) (1) (possession with intent to distribute two kilograms of cocaine), and one count of violating 18 U.S.C. § 924(c) (1) (possession of a firearm in relation to a drug trafficking crime). For each year of his incarceration, Perez-Olivo has earned the maximum amount of "good conduct time" ("GCT") available under the GCT statute, 18 U.S.C. § 3624(b), as interpreted by the BOP. The BOP estimates that if Perez-Olivo continues this good conduct, he will earn a total of 470 days GCT to be credited towards his ten-year sentence. This calculation is based on fifty-four days of earned GCT per year for each complete year Perez-Olivo actually has served, plus a prorated amount of GCT for the last portion of the year he actually serves. Perez-Olivo alleges, however, that he is entitled to 540 days of GCT under 18 U.S.C. § 3624(b) (1). This difference arises from the fact that the BOP calculates GCT based on the time the prisoner actually serves, and Perez-Olivo urges that 18 U.S.C. § 3624(b) (1) requires that GCT be calculated based on the time the prisoner is sentenced to serve. The BOP's method of calculation is set forth in Program Statement 5880.28, which is part of its Sentencing Computation Manual. Through a series of examples, the Program Statement applies a formula which essentially multiplies the number of days served by 0.148 (which is 54/365) for a prisoner who has earned the maximum amount of GCT possible. This formula has the effect of awarding a maximum of fifty-four days GCT for each full year actually served, and a prorated amount of GCT for each portion of a year actually served, based on a rate of fifty-four days of GCT per 365 days in a year. 1

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The BOP has also promulgated a rule, using the notice and comment procedure of the Administrative Procedure Act, 5 U.S.C. § 553, which reflects its interpretation of "term of imprisonment" as "time served" for purposes of calculating GCT. See 28 C.F.R. § 523.20. That rule states that "[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." 28 C.F.R. § 523.20.

Thus, since both the Program Statement and 28 C.F.R. § 523.20 are premised on the BOP's interpretation of "term of imprisonment" in § 3624(b) (1) to mean "time served," we must decide whether it is permissible for the BOP to interpret "term of imprisonment" to mean "time served" rather than "sentence imposed."

II. DISCUSSION

When we are asked to review an agency's construction of a statute that it administers, we review that agency's interpretation de novo, subject to established principles of deference, and begin with the language of the statute. See Goldings v. Winn, 383 F.3d 17, 21 (1st Cir. 2004). The statute at issue here, 18 U.S.C. § 3624(b) (1), provides that:

[A] prisoner who is serving a term of imprisonment of more than 1 year[,] other than a term of imprisonment for the duration of a 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 [BOP] that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations.... [C]redit 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.

Thus, at the end of each year, a prisoner's conduct is evaluated, and if the prisoner has "displayed exemplary compliance with institutional disciplinary regulations," the BOP may award the prisoner credit of up to fifty-four days at the end of each year of the prisoner's term of imprisonment. See 18 U.S.C.§ 3624(b) (1).

A. Judicial Review of 18 U.S.C. § 3624(b) (1)

To evaluate the BOP's interpretation of "term of imprisonment" as used in the GCT statute to mean "time served," we look to the familiar two-part test enunciated in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). First, "employing traditional tools of statutory construction, [we must] ascertain[] [whether] Congress had an intention on the precise question at issue." Id. at 843 n. 9, 104 S.Ct. 2778. If the answer to this inquiry is yes, then "that intention is the law and must be given effect." See id. If, however, "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. 2778.

(1) Language of the Statute

In step one of our Chevron analysis, we must ascertain whether Congress

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has spoken on the precise question at issue. Id., 467 U.S. at 843 n. 9, 104 S.Ct. 2778. We begin with the actual language of the statute, and ask whether the phrase "term of imprisonment" has a "plain and unambiguous meaning with regard to the particular dispute in [this] case." See Duckworth v. Pratt & Whitney, Inc., 152 F.3d 1, 5 (1st Cir. 1998) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). Because Congress has chosen not to define the phrase "term of imprisonment" in the statute itself, we can look to the dictionary for clarification of the plain meaning of the words selected by Congress. See United States v. Lachman, 387 F.3d 42, 50 (1st Cir. 2004) ("Dictionaries of the English language are a fundamental tool in ascertaining the plain meaning of terms used in statutes and regulations."). Webster's Third New International Dictionary (1996) defines "term" as "a limited or definite extent of time: the time for which something lasts." It defines "imprisonment" as "constraint of a person either by force or by such other coercion as restrains him within limits against his will." The dictionary does little to resolve the ambiguity posed here.

(2) Statute as a Whole

Having determined that the plain language of the statute, standing alone, is ambiguous, we next ask whether this ambiguity can be resolved by looking to the "specific context in which [the] language is used, and the broader context of the statute as a whole." Robinson, 519 U.S. at 341, 117 S.Ct. 843. Contrary to Perez-Olivo's contention, and the now-reversed conclusion of the United States District Court for the Western District of Wisconsin in White v. Scibana, 314 F.Supp.2d 834, 838-39 (W.D.Wis.2004), rev'd, White v. Scibana, 390 F.3d 997 (7th Cir. 2004), the phrase "term of imprisonment" is used inconsistently throughout 18 U.S.C. § 3624. For example, in § 3624(a), "term of imprisonment" plainly refers to the "sentence imposed." That section states that each prisoner "shall be released by the [BOP] on the date of the expiration of the prisoner's term of imprisonment, less any time credited toward the service of the prisoner's sentence." 18 U.S.C. § 3624(a). Plainly, if the BOP is instructed to deduct time credited from the "term of imprisonment," then the "term of imprisonment" can only mean the "sentence imposed." See 18 U.S.C. § 3624(a).

We compare the use of the phrase "term of imprisonment" in § 3624(a) with the use of that same phrase in § 3624(d). In § 3624(d), the phrase "term of imprisonment" is plainly used to mean "time served." That section states: "Upon the release of a prisoner on the expiration of the prisoner's term of imprisonment, the [BOP] shall furnish the prisoner with [suitable clothing, an amount of money not to exceed $500, and transportation]." 18 U.S.C. § 3624(d). Plainly, Congress intended the prisoner be furnished with these items upon release after completion of his "time served." See 18 U.S.C. § 3624(d); see also Loeffler v. Bureau of Prisons, No. 04-4627, 2004 WL 2417805, at *3 (S.D.N.Y. Oct. 29, 2004) ("[I]t would make no sense to provide these amenities at a time when the prisoner's original imposed sentence had expired--a date that would obviously occur after the prisoner had been released based on the good time credits.").

(3) Legislative History

After finding that the statute as a whole does not resolve the ambiguity, we next check the legislative history of the statute to confirm our conclusion. See Summit Inv. & Dev. Corp. v....

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