Zavala v. Ives

• Decision Date: 18 May 2015
• Docket Number: No. 13–56615.,13–56615.
• Citation: 785 F.3d 367
• Parties: Daniel Alejandro ZAVALA, Petitioner–Appellant, v. Richard B. IVES, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

785 F.3d 367

Daniel Alejandro ZAVALA, Petitioner–Appellant

v.Richard B. IVES, Warden, Respondent–Appellee.

No. 13–56615.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 4, 2014.

Filed May 18, 2015.

Ashfaq G. Chowdhury (argued), Deputy Federal Public Defender; Sean Kennedy, Federal Public Defender, Los Angeles, CA, for Petitioner–Appellant.

Tritia L. Yuen (argued), Assistant United States Attorney; André Birotte, Jr., United States Attorney; Joseph B. Widman, Assistant United States Attorney, Chief, Riverside Branch Office, Riverside, CA, for Respondent–Appellee.

Appeal from the United States District Court for the Central District of California, John F. Walter, District Judge, Presiding.

Before: STEPHEN REINHARDT, KIM McLANE WARDLAW, and CONSUELO M. CALLAHAN, Circuit Judges.

Opinion by Judge REINHARDT

; Partial Concurrence and Partial Dissent by Judge CALLAHAN.

OPINION

REINHARDT, Circuit Judge:

Daniel Zavala seeks credit toward his criminal sentence under 18 U.S.C. § 3585(b), the sentencing credit statute, for two periods of time during which he was detained by the U.S. Immigration and Customs Enforcement Service (ICE) prior to the commencement of his criminal sentence for illegal reentry under 8 U.S.C. § 1326. We hold that where ICE detains an alien pending potential criminal prosecution, that detention constitutes “official detention” within the meaning of § 3585(b) and the alien is accordingly entitled to credit toward his criminal sentence.

I.

On September 20, 2010, Zavala was transferred from state custody, where he had finished serving a state criminal sentence, into the custody of ICE. That same day, an ICE officer gave him a Form I–871, U.S. Department of Homeland Security Notice of Intent/Decision to Reinstate Prior Order, which Zavala signed.¹ The I–871 Form provided that ICE had determined that Zavala was subject to a prior order of removal entered on May 2, 2006, that he had previously been removed on May 3, 2006 pursuant to an order of removal, and that he illegally reentered the United States on or about July 14, 2009. Zavala signed the “Acknowledgment and Response” section of the I–871 Form stating “I do not wish to make a statement contesting this determination.”² The ICE officer accordingly reinstated the prior order of removal by signing the “Decision, Order, and Officer's Certification” section of Form I–871, which stated that “[h]aving reviewed all available evidence, the administrative file and any statements made or submitted in rebuttal, I have determined that the above-named alien is subject to removal through reinstatement of the prior order, in accordance with section 241(a)(5) of the [Immigration and Nationality] Act.” Although reinstatement of the prior order allowed ICE to remove Zavala from the country at any time from September 20, 2010 onward, ICE nonetheless continued to detain Zavala until October 6, 2010—sixteen days later.

On October 6, 2010, a grand jury in the District of Nevada returned an indictment charging Zavala with illegal reentry under § 1326. ICE then transferred Zavala into the custody of the United States Marshals Service (USMS), and Zavala was in USMS custody as of October 7, 2010. Sixty-two days later, on December 7, 2010, the United States District Court for the District of Nevada granted the Government leave to dismiss the unlawful reentry charge due to improper venue.

On December 10, 2010, following dismissal of the indictment for improper venue, Zavala was transferred from USMS custody back into ICE custody. Twelve days later, on December 22, 2010, a criminal action for illegal reentry under § 1326 was again brought against Zavala, this time in the Central District of California, the proper venue, and he was again transferred into USMS custody from ICE custody.

Pursuant to a plea agreement, Zavala was sentenced on March 28, 2011 to 46–months' imprisonment and 3–years' supervised release for illegal reentry under § 1326(a). In calculating Zavala's entitlement to sentencing credit under § 3585(b)for time he spent in detention prior to the commencement of his criminal sentence, the Bureau of Prisons (BOP) granted Zavala credit for the two periods of time during which USMS detained him—October 6, 2010 through December 10, 2010, and December 22, 2010 through March 27, 2011.³

BOP denied Zavala sentencing credit, however, for the two periods of time during which ICE detained him prior to the commencement of his criminal sentence: (1) September 20, 2010 through October 5, 2010, when ICE detained him after reinstatement of the removal order but before an indictment was returned, hereinafter referred to as the “pre-indictment period”; and (2) December 11, 2010 through December 21, 2010, when ICE detained him between the dismissal of the first indictment for improper venue and the re-initiation of the criminal proceeding in the proper venue, hereinafter referred to as the “post-indictment period.”

On May 20, 2013, Zavala filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, claiming improper denial of sentencing credit because he had “been in official custody of the federal government since September 20, 2010.” A magistrate denied sentencing credit for both periods of detention by ICE, and the district court adopted in full the magistrate's report and recommendation. Zavala appealed.

II.

Zavala contends that the district court erred in concluding that detention by immigration authorities never constitutes “official detention” within the meaning of § 3585(b), the statute governing the calculation of a term of imprisonment. We review the district court's denial of a habeas petition de novo, while we review any underlying factual findings for clear error. Reynolds v. Thomas, 603 F.3d 1144, 1148 (9th Cir.2010), abrogated on other grounds by Setser v. United States, ––– U.S. ––––, 132 S.Ct. 1463, 182 L.Ed.2d 455 (2012). We review questions of statutory interpretation de novo. United States v. Thompson, 728 F.3d 1011, 1015 (9th Cir.2013) ; Phoenix Mem'l Hosp. v. Sebelius, 622 F.3d 1219, 1224 (9th Cir.2010).

A.

Title 18 U.S.C. § 3585 governs the calculation of the length of a federal criminal sentence. Under the statute, a term of imprisonment begins “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.” § 3585(a). The statute then provides that the defendant is entitled to sentencing credit for time spent in “official detention” prior to the commencement of the term of imprisonment:

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.

§ 3585(b). The statute does not define “official detention.”

When interpreting a statute, “[w]e start, as always, with the language of the statute.” Williams v. Taylor, 529 U.S. 420, 431, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). In so doing, “[w]e give the words of a statute their ‘ordinary, contemporary, common meaning,’ absent an indication Congress intended them to bear some different import.” Id. Under the plain text of the sentencing credit statute, when ICE detains an alien for the purpose of securing his presence at a potential criminal prosecution and the alien is indeed criminally prosecuted and sentenced, this period of detention by ICE is “as a result of the offense for which the sentence was imposed.” § 3585(b)(1). The “as a result of” formulation denotes a causal relationship. When ICE detains an alien pending a potential criminal prosecution, electing to defer deportation until the conclusion of such criminal proceedings (and often until after service of the criminal sentence), that period of ICE detention is causally attributable to the criminal offense rather than to ICE's authority to detain an alien pending deportation. Under the plain meaning of the words, detention is the holding of aliens in custody (which the immigration statutes expressly describe as “detention”),⁴ and ICE is without question an official entity. Pending prosecution means the time during which the alien is detained for the purpose of securing his presence at a potential criminal prosecution, whereas pending deportation means detention for the purpose of removing him from the country.

The legislative history of § 3585 does not shed any additional light on whether ICE detention pending criminal prosecution constitutes “official detention,” but similarly it does not contain any indication that Congress intended the statute's words to have a different import than their plain meaning.⁵ Thus, we conclude that the relevant inquiry to determine whether a period of ICE detention constituted “official detention ... as a result of the offense for which the sentence was imposed” is whether the detainee was being held pending a potential criminal prosecution, rather than pending deportation in the ordinary course—that is, whether the alien's detention status had changed from pending deportation, which it was at the time he was first detained, to pending prosecution.

A number of considerations support our interpretation of the statute as having the meaning its plain words afford it. First, issues of sentencing credit arise only in cases in which the alien has in fact been criminally prosecuted and convicted, so the scope of our holding is necessarily circumscribed. In such cases, we always know that the government elected to pursue criminal prosecution, rather than to attempt to deport the alien forthwith. Otherwise, there would be no criminal sentence to credit. The only question is when the...