Sash v. Zenk

• Decision Date: 26 October 2005
• Docket Number: No. 04-6206-PR.,04-6206-PR.
• Citation: 428 F.3d 132
• Parties: Eliot S. SASH, Petitioner-Appellant, v. Michael ZENK, Federal Bureau of Prisons, Respondent-Appellee,
• Court: U.S. Court of Appeals — Second Circuit

Page 132

428 F.3d 132

Eliot S. SASH, Petitioner-Appellant, v. Michael ZENK, Federal Bureau of Prisons, Respondent-Appellee,

No. 04-6206-PR.

United States Court of Appeals, Second Circuit.

Argued: September 20, 2005.

Decided: October 26, 2005.

David A. Lewis, The Legal Aid Society, Federal Defender Division, Appeals Bureau,

New York, NY, for Petitioner-Appellant.

Emily Berger, Assistant United States Attorney, Eastern District of New York (Roslynn R. Mauskopf, United States Attorney, on the brief; Susan Corkery, Assistant United States Attorney, of counsel), Brooklyn, NY, for Defendant-Appellee.

Before: SOTOMAYOR and WESLEY, Circuit Judges, and BRIEANT, District Judge.^*

SOTOMAYOR, Circuit Judge.

This case deals with the interpretation of 18 U.S.C. § 3624(b), which governs the calculation of credits awarded to federal prisoners for good behavior. The petitioner argues that the interpretation of this provision by the Bureau of Prisons (BOP), set forth in 28 C.F.R. § 523.20, contravenes the clear language of the statute. He further argues that the rule of lenity requires that credits be awarded on the basis of the sentence originally imposed rather than on the amount of time actually served and that, even if Chevron deference applies here, the BOP's interpretation of the statute is not reasonable. We apply Chevron deference to the BOP's interpretation of § 3624(b) and hold that it is reasonable.

BACKGROUND

Eliot Sash received a twenty-seven month sentence after pleading guilty to one count of identification document fraud and one count of possessing fifteen or more counterfeit or unauthorized access devices. He filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241, claiming that he should have received 121 days of credit toward the completion of his sentence for good behavior. The BOP, applying a construction of 18 U.S.C. § 3624(b) set forth in 28 C.F.R. § 523.20, awarded Sash only 105 days of credit.

Sash was released on November 22, 2004, having served 17 days more than he contends the law allows. He must still complete an eight-year term of supervised release, which he argues should be reduced because of the excess imprisonment he has suffered. See 28 U.S.C. § 2243 (district court shall dispose of habeas applications "as law and justice require"). The United States District Court for the Eastern District of New York (Garaufis, J.) denied Sash's petition in a thoughtful and thorough opinion. See Sash v. Zenk, 344 F.Supp.2d 376 (E.D.N.Y.2004).

Section 3624(b) of Title 18 of the United States Code governs credit toward service of sentence for prisoners who behave well, commonly referred to as "good time credit":

[A] prisoner who is serving a term of imprisonment of more than 1 year[,] other than a term of imprisonment for the duration of the 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 Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations. . . . [I]f the Bureau determines that, during that year, the prisoner has not satisfactorily complied with such institutional regulations, the prisoner shall receive no such credit toward service of the prisoner's sentence or shall receive such lesser credit as the Bureau determines to be appropriate. . . . Credit that has not been earned may not later be granted. . . . [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.

The BOP interprets this statute to mean that an inmate in Sash's position receives "54 days credit . . . for each year served." 28 C.F.R. § 523.20 (emphasis added). Sash interprets it to mean that the inmate receives 54 days of credit for each year of the sentence as imposed. Because every well-behaved inmate serves less time than called for by the original sentence, Sash's interpretation would result in more credit for well-behaved prisoners.

DISCUSSION

We review the district court's denial of Sash's petition for habeas corpus de novo. See Richards v. Ashcroft, 400 F.3d 125, 127 (2d Cir.2005).

I. Chevron Deference, Not the Rule of Lenity, Governs Our Review of This Case

Sash argues that Chevron deference should apply only after we have employed the rule of lenity to resolve statutory ambiguities in favor of the prisoner. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (discussing circumstances under which courts defer to administrative agencies), Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 704 n. 18, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (discussing the rule of lenity).

It is true that the rule of lenity "applies not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose." Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980). But the regulation at issue here interprets neither the substantive ambit of a criminal prohibition nor the penalty it imposed. The fact that the BOP's administrative reward for compliance with prison regulations is a sentence reduction does not make that administrative reward part of the process of criminal sentencing. Because § 3624(b) is not a criminal statute, the rule of lenity is not relevant to this case. Cf. Perez-Olivo v. Chavez, 394 F.3d 45, 53 (1st Cir.2005) (stating that "we are evaluating the reasonableness of the BOP's calculation of reductions in a sentence for [good time credit], which is not, strictly speaking, a `criminal' statute, and thus we do not believe the rule of lenity would apply"); Sash, 344 F.Supp.2d at 381 ("[I]t is clear that the rule of lenity should come into play whenever statutory ambiguity leaves in doubt whether particular conduct is subject to criminal penalty and the extent of the punishment that may be imposed by a judge" but not where the prisoner "has already broken the law and been sentenced accordingly").

The rule of lenity has two purposes: first, to ensure that the public receives fair notice of what behavior is criminal and what punishment applies to it, see Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958); Babbitt, 515 U.S. at 704 n. 18, 115 S.Ct. 2407; and, second, to ensure that legislatures and not courts define criminal activity. See id.

The statutory ambiguity of § 3624(b) does not result in any lack of notice to potential violators of the law of the scope of the punishment that awaits them, because the award or withholding of credit under § 3624(b) is not part of that punishment. Sentencing credits are awarded to ensure administrative order in prison, not to further the punitive goals of the criminal law. Cf. Porter v. Coughlin, 421 F.3d 141, 148 (2d Cir.2005) (holding that prison disciplinary sanctions are not to be considered criminal for purposes of the Double Jeopardy Clause because their purpose is administrative rather than punitive). Any violation of prison regulations resulting in the withholding of credit would be an administrative violation entirely separate from the underlying criminal offense. Thus, potential offenders have no reason to complain that the ambiguity of § 3624(b) leaves them uncertain as to the scope of the criminal punishment that will be triggered by their unlawful acts.

The second concern underlying the rule of lenity is also not relevant here because the regulation is not criminal in nature. No court has infringed upon the role of the legislature by creating a criminal sanction where none existed before. Nor has the BOP infringed upon the courts' role in determining the appropriate sentence to be imposed on an offender within the parameters of the statute. The award of credit for good behavior under § 3624(b) is certainly not intended to diminish the strength of the community's condemnation of the underlying act, as expressed in the statute, nor the individual determination of culpability reflected in the sentence imposed by the court.

Because the purposes of the rule of lenity are not implicated here, we hold that it does not apply to the BOP's construction of § 3624(b). Cf. Yi v. Fed. Bureau of Prisons, 412 F.3d 526, 535 (4th Cir.2005) (finding the rule of lenity inapplicable to the interpretation of § 3624(b) because of the notice provided by the BOP's reasonable interpretation); Brown v. McFadden, 416 F.3d 1271, 1273 (11th Cir.2005) (same).

For the same reason, we reject Sash's argument that Chevron deference is inappropriate here. The BOP is the agency charged with implementing the statutory provision at issue in this case. See 18 U.S.C. § 3624. Chevron therefore instructs us to defer to the BOP's interpretation if the statute is ambiguous. See Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. If the statute is unambiguous, of course, our inquiry ends with the statute's plain meaning. Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1073 (2d Cir.1993).

Sash argues that Chevron deference is inappropriate because the statute at issue is criminal in nature. As we noted in Michel v. INS, 206 F.3d 253 (2d Cir.2000), "courts owe no deference to an agency's interpretations of state or federal criminal laws because the agency is not charged with the administration of such laws." Id. at 262. By applying Chevron in this case, however, we do not suggest that we owe deference to the BOP's interpretation of any underlying substantive criminal law. As discussed above, the provision interpreted here defines neither the scope of criminal liability nor the penalty applicable to criminal punishment. It is not criminal in nature.

We note that the Supreme Court has on at least two occasions given deference to BOP interpretations of...