Moreland v. U.S.

• Decision Date: 30 June 1992
• Docket Number: No. 90-5375MN,90-5375MN
• Citation: 968 F.2d 655
• Parties: Robert Scott MORELAND, a/k/a Robert S. Moreland, a/k/a "Bobby", Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 655

968 F.2d 655

Robert Scott MORELAND, a/k/a Robert S. Moreland, a/k/a "Bobby", Appellant, v. UNITED STATES of America, Appellee.

No. 90-5375MN.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 6, 1992.

Decided June 30, 1992.

Bruce H. Hanley, Minneapolis, Minn., and Glenn A. Shapiro, Omaha, Neb., argued, for appellant.

Joseph D. Wilson, Washington, D.C., argued (Jerome G. Arnold, Lynn A. Zentner and Matthew B. Stege, Minneapolis, Minn., on the brief), for appellee.

Before LAY, ^* Chief Judge, HEANEY, Senior Circuit Judge, McMILLIAN, RICHARD S. ARNOLD, ^** JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, and HANSEN, Circuit Judges, En Banc.

MAGILL, Circuit Judge, with whom FAGG, BOWMAN, WOLLMAN, BEAM, and HANSEN, Circuit Judges, join.

The issue in this case is whether a presentence defendant held in a halfway house should receive credit, postconviction, on his sentence under 18 U.S.C. § 3585(b) (1988). Robert Scott Moreland appealed the district court's ¹ denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2255. A divided panel of this court reversed and remanded with instructions to credit Moreland for time spent at the halfway house. Moreland v. United States, 932 F.2d 690 (8th Cir.), vacated, reh'g en banc granted sub nom. United States v. Moore, 951 F.2d 166 (8th Cir.1991). We granted rehearing en banc. We now fall in line with the First, Second, Fourth, Fifth, Seventh and Tenth Circuits, and reject the reasoning of the Ninth Circuit. We find that Moreland was not in official detention while at the halfway house, and affirm the district court.

I.

The background facts of this case are more fully set out in the panel opinion, Moreland, 932 F.2d 690, and we will not repeat them here except as necessary to address the arguments on appeal.

Moreland was arrested on July 28, 1989, on two counts of bank fraud, in violation of 18 U.S.C. § 1344, and two counts of using false social security cards, in violation of 42 U.S.C. § 408(g)(2). Moreland was released on bond on September 5, 1989. He was ordered to reside at the Reentry Services Community Treatment Center (RSCTC) pending trial. On October 30, 1989, Moreland pleaded guilty to one count of fraud. He continued to reside at RSCTC prior to his sentencing. ² After beginning to serve his sentence in federal prison, Moreland filed a petition with the Bureau of Prisons (BOP) requesting that he be given credit against his sentence for the time he spent at RSCTC prior to sentencing. BOP denied his request. Moreland then filed a petition in federal district court asking for habeas relief. The district court denied the petition because it determined that Moreland was not in "official detention" while at RSCTC. Moreland appeals to this court on two grounds. First, Moreland contends that he was in "official detention" under 18 U.S.C. § 3585(b) (1988) ³ while he resided at RSCTC. Second, Moreland argues that denial of credit for his presentence "detention" violates the equal protection clause because postsentence detainees ⁴ residing at RSCTC receive credit for their time at RSCTC.

II.

A. "Official Detention"

Moreland's first argument hinges on the definition of "official detention" under § 3585(b). If "official detention" includes presentence residence in a halfway house, Moreland should get credit for the time he spent at RSCTC. If, however, such time does not fall under the definition of "official detention," the district court was correct and Moreland should not get credit for that time.

The term "official detention" is ambiguous. Congress did not provide a clear definition in either the statute or in its legislative history. See 18 U.S.C. § 3585(b); S.Rep. No. 225, 98th Cong., 2d Sess. 128-29, reprinted in 1984 U.S.C.C.A.N. 3182, 3312. The disagreement among the circuits over the interpretation of this phrase emphasizes its abstruseness. Compare, e.g., United States v. Woods, 888 F.2d 653, 655 (10th Cir.1989) (" 'official detention' means imprisonment in a place of confinement, not stipulations or conditions imposed upon a person not subject to full physical incarceration"), cert. denied, 494 U.S. 1006, 110 S.Ct. 1301, 108 L.Ed.2d 478 (1990), with Brown v. Rison, 895 F.2d 533 (9th Cir.1990) ("official detention" can include pretrial residence in community treatment center where conditions approached those of incarceration). Because the phrase is ambiguous, we must look outside the statute to determine its parameters. ⁵

In Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Supreme Court held that if a statute is "silent or ambiguous with respect to the specific issue," and if "the [administering] agency's answer is based on a permissible construction of the statute," we must defer to the agency's interpretation. The BOP, as administering agency, resolved this ambiguity in its Program Statement on Sentence Computation, Jail Time Credit Under 18 U.S.C. § 3568. ⁶ Time spent in residence in a residential community center (or a community based program located in a Metropolitan Correctional Center or jail) ... as a condition of bail or bond ... is not creditable as jail time since the degree of restraint provided by residence in a community center is not sufficient restraint to constitute custody within the meaning or intent of 18 USC 3568.... However, time spent in a jail-type facility (not including a community based program located in a Metropolitan Correctional Center or jail) as a condition of bail or bond is creditable as jail time because of the greater degree of restraint.

BOP Program Statement 5880.24(5)(b)(5) (emphasis in original). We believe this is both a reasonable and a permissible construction of § 3585 for a number of reasons.

First, the BOP makes a clear distinction between residential community centers and jail-type facilities based on their respective degrees of restraint. It explicitly grants sentencing credit when a presentence defendant is placed under a great degree of restraint. Thus, it is clear that the BOP has considered this issue and has made a reasoned determination.

Second, the great weight of the legal authority that has addressed this issue supports the conclusion that "official detention" does not include presentence residence in a halfway house. In Ramsey v. Brennan, 878 F.2d 995 (7th Cir.1989) (interpreting § 3568), the Seventh Circuit refused to grant sentence credit for time spent in a halfway house. The court opined that whether the deprivation of liberty associated with confinement in a halfway house, a "twilight zone between prison and freedom," qualifies as "official detention" was not "a question susceptible of rational determination, at least by tools of inquiry available to judges." Id. at 996. Instead of making such a determination, the court deferred to the BOP Program Statement that prohibits using time spent in a residential community center as credit toward jail time. Id. (quoting BOP Program Statement No. 5880.24(5)(b)(5)).

In United States v. Woods, 888 F.2d 653 (10th Cir.1989) (interpreting § 3585(b)), cert. denied, 494 U.S. 1006, 110 S.Ct. 1301, 108 L.Ed.2d 478 (1990), the Tenth Circuit reached the same result without relying on the BOP Program Statement. The Woods court held that "official detention" means "imprisonment in a place of confinement, not stipulations or conditions imposed upon a person not subject to full physical incarceration." Id. at 655. Consequently, the court held that presentence detention in a halfway house could not be used for sentence credit. Id.

The Fourth Circuit, following Woods, found that "official detention" requires full physical incarceration. United States v. Insley, 927 F.2d 185, 186 (4th Cir.1991); see also United States v. Zackular, 945 F.2d 423, 424-25 (1st Cir.1991) ("official detention" requires incarceration as a precondition to credit); Mieles v. United States, 895 F.2d 887, 888 (2d Cir.1990) ("jail-time credit under section 3568 requires physical confinement"); United States v. Smith, 869 F.2d 835, 837 (5th Cir.1989) ("custody" under § 3568 is characterized by incarceration) (quoting Polakoff v. United States, 489 F.2d 727, 730 (5th Cir.1974)). Our own circuit has also found that "custody" under § 3568 "relates to actual custodial incarceration." Villaume v. United States Dep't of Justice, 804 F.2d 498, 499 (8th Cir.1986), cert. denied, 481 U.S. 1022, 107 S.Ct. 1908, 95 L.Ed.2d 514 (1987).

Only one circuit has decided that actual incarceration is not necessary for credit to be granted under § 3568. In Brown v. Rison, 895 F.2d 533 (9th Cir.1990), the Ninth Circuit granted jail-time credit for pretrial residence in a halfway house. It concluded that the BOP interpretation "excludes [from sentencing credit] enforced residence under conditions approaching those of incarceration." Id. at 536. Although the court recognized that it "must accord substantial deference to an interpretation of section 3568 by the agency charged with its administration, and must accept that interpretation if it is a reasonable one," id. at 535, it went on to decide that excluding enforced residence under conditions approaching incarceration would be contrary to the considerations of fairness underlying Congress' provision of credit for time served. Id. at 536. We think Brown was wrongly decided.

The Ninth Circuit's interpretation of the BOP Program Statement is incorrect. The Statement clearly says that "time spent in a jail-type facility (not including a community based program located in a Metropolitan Correctional Center or jail) as a condition of bail or bond is creditable as jail time because of the greater degree of restraint." BOP Program Statement 5880.24(5)(b)(5) (emphasis in original). This provision makes allowance for "conditions approaching those of incarceration" because it takes into account both the type of facility and the amount of restraint imposed. Thus,...