1 See 18 U.S.C. § 3624.

1 United States Court of Appeals

Fifth Circuit



### FILED

November 10, 2005

Charles R. Fulbruge III

Clerk 

### In the United States Court of Appeals

for the Fifth Circuit

No. 05-20347

ELLEN JEANETTE MORELAND

Petitioner - Appellee

v.

THE FEDERAL BUREAU OF PRISONS; HARLEY G. LAPPIN, DIRECTOR, BUREAU OF

PRISONS; JOYCE FRANCIS, WARDEN, FEDERAL PRISON CAMP – BRYAN

Respondents - Appellants

Appeal from the United States District Court

for the Southern District of Texas

Before BENAVIDES, STEWART and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

In this habeas corpus proceeding, we must determine whether a federal statute

governing credit for good conduct unambiguously directs how that credit is to be calculated

and applied. 1 Because we conclude the statute is unambiguous, we do not address whether

the rule of lenity applies or whether the Federal Bureau of Prisons’ interpretation of the

sta tute must be accorded deference under C hevron, U.S.A. v. Natural Resources Defense2 467 U.S. 837, 842-44 (1984).

3 18 U.S.C. § 3624(b)(1).

2 Council, Inc. 2 and its progeny. The Bureau of Prisons correctly determined the good-conduct

credits in this case. Therefore, we reverse the district court’s grant of habeas relief and deny

the petition for writ of habeas corpus.

I

Ellen Jeanette Morelan d was convicted in a federal district court in Wisconsin of

conspiring to possess with intent to distribute cocaine, a violation of 21 U.S.C. § 846. She

was sentenced to 210 months (17.5 years) imprisonment and five years of supervised release.

Moreland had served 157 days in pretrial detention before she was transferred to the Federal

B ureau of Prisons’ custody on January 25, 1991, and absent any good-conduct credit,

Moreland’s sentence would have been completed on February 18, 2008.

The Bureau det ermined that during each year of her imprisonment, Moreland

“displayed exemplary compliance with institutional disciplinary regulations” 3 and thus far

had earned the maximum amount of good-conduct credit permi tted under 18 U.S.C.

§ 3624(b). At issue is the maximum credit she may receive. Section 3624(b)(1) provides:

[A] pri soner 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

impris onment, 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.

Subject to paragraph (2), if the Bureau determines that, during that year, the4 18 U.S.C. § 3624(b)(1).

3

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.

. . . [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. 4

The Bureau calculated Moreland’s credit by deducting 54 days from her sentence at

the end of each year she served. By the time Moreland had served fifteen years, less than

one year of her sent ence remained. The Bureau then prorated Moreland’s good-conduct

credit for the remainder of her sentence and projected her release date as November 17,

2005, based on 823 days of good-conduct credit, assuming continued exemplary behavior.

Moreland filed a petition for a writ of h abeas corpus under 28 U.S.C. § 2241,

contending that the Bureau had improperly calculated her good-conduct credits. Moreland

asserted that she is entitled to 54 days of good-conduct credit for each year or partial year

of her 17.5-year sentence, a total of 945 days of credit (54 days x 17.5 years = 945 days).

She argued that at the end of her first year in prison, 54 days should have been deducted from

the 365 days she served, so that her first year of imprisonment would have ended on day 311.

The second year of her sentence would have ended on day 622, the third year on day 933,

and so on, such that her release date would have been July 18, 2005.

The district court agreed with Moreland and directed the Bureau to “calcul ate her

Good Conduct Time under 18 U.S.C. § 3624(b)(1) so that, for each year of the sentence

imposed, she serves 311 days of actual time and earns 54 days of credit that vests5 18 U.S.C. § 3624(c).

4

immediately.” The Bureau complied. It subsequently transferred Moreland from the Federal

Prison Camp

– Bryan, Texas where she had been confined, to the Chicago Community

Confinement Center for the remainder of her sentence, in order to comply with 18 U.S.C.

§ 3624(c), which requires the Bureau to “assure that a p r isoner serving a term of

imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum

of the term to be se r ved under conditions that will afford the prisoner a reasonable

opportunity to adjust to and prepare for the prisoner’s re-entry into the community.” 5 On

July 18, 2005, Moreland commenced serving her five-year term of supervised release. The

Bureau asserts that if the grant of habeas relief is reversed, Moreland will be returned to

community confinement to serve the duration of her term of imprisonment.

II

As a preliminary matter, Moreland contends that the Bureau and the director of the

Bureau were not her immediate custodians when she sought habeas relief, and although she

named them as parties, they must be dismissed from the case. That would leave the warden

of the Bryan facility as the only proper party, Moreland asserts, and since that warden no

longer has custody over her because she was transferred to Illinois, Moreland argues that this

case must be dismissed. We disagree.

Moreland filed her petition for writ of habeas corpus in the district in which she was

confined as required by 28 U.S.C. § 2241(d) and named as a respondent the warden of the6 See Rumsfeld v. Padilla

, 542 U.S. 426, 447 (2004) (“Whenever a § 2241 habeas petitioner

seeks to challenge his present physical custody within the United States, he should name his warden

as respondent and file the petition in the district of confinement.”).

7 Zalaw adia v. Ashcroft

, 371 F.3d 292, 297 (5th Cir. 2004) (“The Supreme Court has made

it clear that the ‘in custody’ determination is made at the time the habeas petition is filed.”).

8 Id. at 434 n.7 (using the term “jurisdiction” “in the sense that it is used in the habeas statute,

28 U.S.C. § 2241(a), and not in the sense of subject-matter jurisdiction” when determining whether

the habeas petitioner had ident ified the proper respondent and whether the district court had

jurisdiction over that respondent); see also id. at 452 (Kennedy, J., concurring) (“Because the

immediate-custodian and territorial-jurisdiction rules are like personal jurisdiction or venue rules,

objections to the filing of petitions based on those grounds can be waived by the Government.”).

5 facility in which she was confined. 6 The “‘in custody’ determination is made at the time the

habeas petition is filed.” 7 The district court had jurisdiction to act on Moreland’s petition

when it rendered judgment, and w e have jurisdiction over the appeal from that judgment.

The issue before us is whether habeas relief should have been granted. If it was improperly

granted, the Bureau may re-imprison Moreland, regardless of whether it should have been

named as a party in this proceeding.

Moreover, whether the Bureau and the director of the Bureau should have been joined

as parties raises questions of personal jurisdiction, not subject-matter juri sdiction. 8 Moreland

named these governmental entities as respondents in the district court and did not challenge

the propriety of her own actions until this appeal. Neither the Bureau nor the director

question the court’s jurisdiction over them, and the district court’s final judgment explicitly

directs the Bureau to calculate Moreland’s good-conduct credit in a particular manner. The

Bureau appeals from that judgment, and Moreland has waived any contention that she should

not have joined, or obtained a judgment against, the Bureau.9 See Eagles v. United States

, 329 U.S. 304, 307-08 (1 946) (“Though the writ has been

granted and the prisoner released, the appellate court by what it does is not rendering an opinion and

issuing an order which cannot affect the litigants in the case before it

. . . . Reversal undoes what the

habeas corpus court did and makes lawful a resumption of the custody .”); Campbell v. U. S. Parole

Comm’n

, 704 F.2d 106, 109 n.2 (3d Cir. 1983) (holding that compliance with district court order did

not render appeal moot “since the effect of our reversal of the district court i s to perm it the

Commission to return [the habeas petitioner] to custody”).

6 Finally, Moreland contends that this case is moot since she has been released from

prison. As noted above, the Bureau intends to return Moreland to community confinement

to serve the remainder of her term if it prevails in this appeal. Therefore, the case is not

moot. 9

III

Moreland contends and the district court held that a prisoner may earn up to 54 days

of credit for each year or partial year of the sentence imposed. As discussed above, the

district court multiplied Moreland’s 17.5-year sentence by 54 days and ordered that she be

given 945 days of credit, directing that each year of her sentence be reduced to 311 days.

The starting point of our analysis is the statute itself:

(a) Date of release. –A prisoner shall be released by the Bureau of Prisons on

the date of the expiration of the prisoner’s term of imprisonment, less any time

credited toward the service of the prisoner’s sente nce as provided in

subsection (b). . . .

(b) Credit toward service of sentence for satisfactory behavior.

–

(1) Subject to paragraph (2), 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 s ervice 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 of10 18 U.S.C. § 3624(a)-(d).

11 See Tatu v. Rasbeary

, 142 Fed. Appx. 215, 215 (5th Cir. 2005); Sample v. Morrison , 406

F.3d 310, 312-13 (5th Cir. 2005).

7 the term, subject to determina tion by the Bureau of Prisons that, during that

year, the prisoner has displayed exemplary compliance with institutional

disciplinary r egulations. Subject to paragraph (2), if the Bureau determines

that, during that year, the prisoner has not satisfac torily complied with such

in stitutional 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. Subject to paragraph (2), 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.

(2) Notwithstanding any other law, credit awarded under this subsection after

the date of enactment of the Prison Litigation Reform Act shall vest on the

date the prisoner is released from custody.

* * *

(c) Pre-rel ease custody.

– The Bureau of Prisons shall, to the extent

practicable, assure that a priso ner serving a term of imprisonment spends a

reasonable part, not to exceed six months, of the last 10 per centum of the term

to be served u nder conditions that will afford the prisoner a reasonable

opportunity to adjust to and prepare for the priso ner’s re-entry into the

community. . . .

(d) Allotment of clothing, funds, and transportation. –Upon the release of a

prisoner on the expiration of the prisoner’s term of imprisonment, the Bureau

of Prisons shall furnish the prisoner with–

(1) suitable clothing;

(2) an amount of money, not more than $500, . . .; and

(3) transportation . . . . 10

This court has opined o n how good-conduct credit is to be calculated and applied

under this statute on at least two prior occasions, concluding that the Bureau’s interpretation

of the statute is correct and rejecting the same arguments Moreland puts forth. 11 However,12 406 F.3d 310 (5th Cir. 2005).

13 Id . at 313.

14 Id

.

15 Id . at 312.

16 Id

.

8 neither of those decisions is binding precedent.

In Sample v. Morrison

, 12 the court concluded that section 3624(b)(1) “plainly states

that a prisoner cannot earn any good time credit until he has served at least one year of his

prison term. At that time, and thereafter ‘at the end of each year’ of the inmate’s prison term,

he ‘may’ be awarded ‘up to 54 days’ of good time credit.” 13 The court explicitly rejected

Moreland’s method of calculating credit: “The statute, however, contains no language that

would permit him to receive additional good time credit based on the original prison term

‘as imposed’ by the court, and it provides no method for computing such credit.” 14 But this

conclusion was dicta because the petition in Sample was dismissed for lack of subject-matter

jurisdiction. 15 The court analyzed how credits are calculated only after stating, “[e]ven if we

were to assume arguendo that we have subject-matter jurisdiction,” the district court did not

err in agreeing with the Bureau’s calculation. 16 This was not an alternative holding because

it could not support the actual judgment in that case, which was dismissal for lack of subjectmatter jurisdiction rather than an affirmance of the district court’s judgment.

In an unpublished opinion, Tatu v. Rasbeary

, this court cited with approval Sample ’s17 142 Fed. Appx. 215, 215 (5th Cir. 2005) (“This court determined [in Sample ] that the plain

language of 18 U.S.C. § 3624(b) supports the [Bureau’s] method of calculating good time credit.”);

see also Bounds v. Reese

, No. 04-4 0902, 2005 WL 1870411, at *1 n.1 (5th Ci r. Aug. 5, 2005)

(holding that the court lacked jurisdiction over the issue of the Bureau’s calculation of good-conduct

credits, but noting that a similar challenge was rejected in Sample )

.

18 Tatu , 142 Fed. Appx. at 215.

19 5 TH C IR

. R. 47.5.4.

20 18 U.S.C. § 3624(b)(1) (emphasis added).

9 discussion of how good-conduct credits are calculated. 1 7 Tatu squarely held that the

Bureau’s construction of section 3624(b)(1) was correct. 18 Unpublished opinions are not

binding precedent but may be persuasive. 19

We are persuaded that Sample and Tatu correctly concluded that section 3624(b)(1)

unambiguously directs how good-conduct credits are to be calculated and applied, which is

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.” 20 Given its context, this language has a temporal

meaning and can only refer to the end of each year the prisoner serves. The word “year” has

a commonly understood meaning of 365 (or 366) days, not 311 days. The statutory language

provides no indication that “year” has an unusual or extraordinary meaning for purposes of

section 3624. Nor does it indicate that good-conduct credit should be retroactively applied

to reduce each “year” the prisoner serves from 365 to 311 days.

The temporal meaning of “the end of each year of the prisoner’s term of

imprisonment” and “beginning at the end of the first year” is brought into even sharper focus

when other parts of section 3624(b )(1) are considered. Good-conduct credit cannot be21 Id

.

22 Id

.

23 See Yi v. Fed. Bureau of Prisons

, 412 F.3d 526, 532 (4th Cir. 2005) (noting that section

3624 “assumes that the prisoner has been incarce rated d uring the year

, such that” the Bureau can

determine whether the prisoner’s behavior merits the full amount of good-conduct credit).

10 awarded unless the Bureau determines that “during that year, the prisoner has displayed

exemplary compliance with institutional disciplinary regulations.” 21 Likewise, if the Bureau

de termines “that, during that year, the prisoner has not satisfactorily complied with such

institutional regulations, the prisone r 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.” 22 The statute contemplates a determination of how much, if any, credit is due

will be made after “that year” has expired and the prisoner’s conduct during “that year” can

be assessed. The statute does not say that conduct will be assessed at the end of 311-day

periods, or any other periods less than 365 days. 23 Violent conduct after the 311th day of a

given year could mar an otherwise “exemplary” year of compliance and warrant the award

of little or no credit.

Moreland’s interpretation of section 3642(b)(1) finds no support in the text of the

statute. Moreland insists that she is entitled to 54 days for each year of the 17.5-year

sentence she received. But all agree that because of her good conduct, Moreland will not

serve at least the last two years of her 17.5-year sentence. Section 3642(b)(1) refers to “up

to 54 days at the end of each year of the prisoner’s term of imprisonment, beginning at the24 18 U.S.C. § 3624(b)(1).

25 Id .; see also Pache co-Camacho v. Hood , 272 F.3d 1266, 1268-69 (9 t h Cir. 2001), cert.

denied

, 535 U.S. 1105 (2002) (“Whereas the model prisoner will ordinarily receive his fifty-four-day

credit after

complying with prison disciplinary rules for 365 days, under [the prisoner’s] reading, a

prisoner who serves 311 days would receive the same number of credits for exhibit ing good behavior

over only eighty-five percent of the year.”).

26 See Yi

, 412 F.3d at 532 (“An inmate who is not in prison cannot ‘earn’ credit for compliance

with prison disciplinary regulations.”); White v. Scibana , 390 F.3d 997, 1001 (7th Cir. 2004), cert.

denied sub nom.

, White v. Hobart

, 125 S. Ct. 2921 (2005) (“The Bureau cannot evaluate a prisoner’s

behavior and award credit for good conduct if the prisoner is not still in prison.”).

27 See Scibana

, 390 F.3d at 1002 (“To interpret ‘term of imprisonment’ as ‘sentence imposed’

for purposes of awarding good-time credit would entitle an inmate to receive credit for good conduct

in prison for time

– perhaps several years of time

– that he was not in prison.”); see also O’Donald

v. Johns

, 402 F.3d 172, 174 (3d Cir. 2005) (“To calculate [good-conduct time] based on the sentence

imposed would allow an inmate to earn GCT for time he was not actually incarc erated.”).

28 Sample v. Morrison

, 406 F.3d 310, 313 (5th Cir. 2005); see also Sash v. Zenk

,

__ F.3d

__, __ n.3 (2d Cir. 2005) (“In a ten-year sentence, for example, more than one year might be taken off

for good behavior, in which case the [Bureau of Prisons] would have to determine the extent of the

11 end of the first year of the term.” 24 When is the “end” of the last two years of the sentence

imposed when those two years will never be served? How does “during that year” apply to

the two year s of her sentence that she will not serve for purposes of determining whether

Moreland “displayed exemplary compliance with institutional disciplinary regulations,” or

conversely, “during that year, the prisoner has n ot satisfactorily complied with such

institutional regulations”? 25 How can the Bureau evaluate Moreland’s conduct for two years

she did not serve? 26 Are we to assume that every prisoner automatically gets the maximum

54 days credit for years that he or she will not serve because of prior good-conduct credits? 27

As this court astutely observed in Sample

, the statute “provides no method for computing

such credit.” 28prisoner’s compliance during a wholly nonexistent year. Perhaps it would be reasonable to assume

that a well-behaved prisoner would continue behaving well during this hypothetical time, but nothing

in the statute directs the [Bureau] to make such an assumption.”).

29 18 U.S.C. § 3624(b)(1).

30 See Sample

, 406 F.3d at 313 (“It is plain from the statute that an inmate must earn good

time credit.”); see also Yi

, 412 F.3d at 532 (“An inmate who is not in prison cannot ‘earn’ credit for

compliance with prison disciplinary regulations.”).

31 18 U.S.C. § 3624(b)(1).

32 Id

.

12 Similarly, section 3624(b)(1) directs: “Credit that has not been earned may not later

be granted.” 29 Moreland cannot e arn credit during the two years of the sentence imposed

that she will not serve because of her prior good-conduct credit. 30

Section 3624(b)(1) a lso directs how credit is to be calculated “for the last year or

portion of a year of the term of imprisonment.” 31 It is to be “prorated and credited within the

last six weeks of the sentence.” 32 In this proration provision, “term of imprisonment” could

arguably mean either the time actually served or the sentence imposed upon conviction if it

were read in isolation. A prisoner could be sentenced to 17.5 years, like Moreland, and

actually serve 15.7 years, and “portion of a year of the term” could mean either the final 0.5

year of the sentence imposed or the final 0.7 year of the time that will actually be served.

But in context, the only reasonable construction of the proration provision is to construe

“term of imprisonment” as the time the prisoner is actually imprisoned since credit may only

be earned and awarded for good conduct during time served.

Moreland and the district court’s opinion point out that the phrase “term of33 See Brown v. Gardner

, 513 U.S. 115, 118 (1994) (noting that this canon of construction

is “most vigorous[ly]” applied to terms repeated in the same sentence).

34 Gen. Dynamics Land Sys., Inc. v. Cline

, 540 U.S. 581, 595 (2004) (quo ting Atlantic

Cleaners &

Dyers, Inc. v. United States , 286 U.S. 427, 433 (1932)).

35 Id . at 596 n.8 (quoting Cook, “Substance” and “Procedure” in the Conflict of Law s , 42

Y ALE L.J. 333, 337 (1933)).

36 18 U.S.C. § 3624(b)(1).

13 imprisonment” is used many times in section 3624. They recite the familiar canon of

construction that a term should be given the same meaning throughout a statute, particularly

when a term is repeated within a given sentence. 33 But this canon is merely a sometimeshelpful aid to construction, not an absolute directive to be applied reflexively. The language

used in an enactment and its context are paramount. As the United States Supreme Court has

held on more than one occasion, the “‘presumption is not rigid and readily yields whenever

there is such variation in the connection in which the words are used as reasonably to warrant

the conclusion that they were employed in different parts of the act with different intent.’” 34

The Supreme Court has colorfully compared the canon of construction on which Moreland

relies to “original sin” with regard to its longevity and the need to guard against it:

“The tendency to assume that a word which appears in two or more legal rules,

and so in connection with more than one purpose, has and should have

precisely the same scope in all of them, runs all through legal discussions. It

has all the tenacity of original sin and must constantly be guarded against.” 35

Moreland concedes that the phrase “term of impriso nment” has two distinctly

different meanings within section 3624. Section 3624(b)(1) provides that “a prisoner who

is serving a term of imprisonment of more than 1 year” may receive good-conduct credit. 3637 Id . § 3624(d).

38 O’Donald v. Johns

, 402 F.3d 172, 173-74 (3d Cir. 2005); Yi v. Fed. Bureau of Prisons

, 412

F.3d 526, 532-33 (4th Cir. 2005); Perez-Oliv o v. Chavez

, 394 F.3d 45, 49 (1st Cir. 2005); White v.

Scibana

, 390 F.3d 997, 1002-03 (7th Cir. 2004), cert. denied sub nom., White v. Hobart

, 125 S. Ct.

2921 (U.S. 2005).

39 See supra n.40; see also Brown v. McFadden

, 416 F.3d 1271, 1272-73 (11th Ci r. 2005)

(obse rving that district court’s determination that section 3624 was unambiguous was “arguably

corr ect ,” but deciding to follow other circuit court opinions that have concluded the statute is

ambiguous); Sash v. Zenk

,

__ F.3d

__ ,

__ (2d Cir. 2005) (finding section 3624 ambiguous); Mujahid

v. Daniels

, 413 F.3d 991, 999 (9th Cir. 2005) (same); James v. Outlaw

, 126 Fed. Appx. 758, 759

(8th Cir. 2005) (same) ; Pacheco-Camacho v. Hood , 272 F.3d 1266, 1271 (9th Cir. 2001) (same).

But see Williams v. Lamanna

, 20 Fed. Appx. 360, 361 (6th Cir. 2001) (concluding “[t]he statute

clearly states that good conduct time is awarded on time served by the inmate, not on the time that

14 It is beyond debate that in this context, “term of imprisonment” means the sentence imposed

for a conviction. But it is also beyond debate that in section 3624(d) the same phrase means

the time the prisoner has actually served, not the sentenced imposed. Section 3624(d) says:

“Upon the release of a prisoner on the expiration of the prisoner’s term of imprisonment, the

Bureau of Prisons shall furnish the prisoner with

– (1) suitab le clothing; (2) an amount of

money, not more than $500

. . . ; and (3) transp ortation . . . .” 3 7 As these provisions

demonstrate, t he same phrase may be used to refer to different things, even in the same

statute, and each time the phrase’s meaning must be derived from its context.

Other federal appellate courts have si milarly concluded that in section 3624, the

phrase “term of imprisonment” unambiguously means the time served in one usage and the

sentence imposed upon conviction in another. 38 These courts, however, have concluded that

the phrase “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” is ambiguous. 39 Few have explained in anymight potentially be served by the inmate”).

40 But see Perez-Oliv o , 394 F.3d at 49 (concluding that “term of imprisonment” could mean

either time served or the sentence imposed as used in the phrase “credit for the last year or porti on

of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the

sentence” and, therefore, how to calculate the 54-day credit was ambiguous).

41 See, e.g., Sash , __ F.3d at __; Yi , 412 F.3d at 532.

42 See, e.g., Sash , __ F.3d at __; O’Donald v. Johns , 402 F.3d 172, 174 (3d Cir. 2005).

43 18 U.S.C. § 3624(a), (b), (d).

44 Id . § 3624(b)(1).

15 detail how they reached that conclusion given the context within which this phrase is used. 40

Some recognize that the construction proffered by prisoners is not supported by section

3624’s text, observing that the Bureau cannot evaluate a prisoner’s conduct during a time that

is not served 4 1 or similarly cannot award credit based on good conduct for a part of a

sentence t hat was not served. 4 2 They nevertheless conclude that the phrase is ambiguous

based on the fact that “term of imprisonment” is used differently in different places within

section 3624. Using a phrase unambiguously in one part of a statute, then using it

differently, but unambiguously in another part, does not dictate that its use in yet another part

of the statute is ambiguous. Given its context, 43 we fail to see any ambiguity in the phrase

“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.” 44

We hold that the district court erred in granting Moreland’s petition for habeas corpus.

Ac cordingly, the district court’s judgment is REVERSED, and judgment is RENDERED

DENYING the petition for writ of habeas corpus.16

ENDRECORD17

CARL E. STEWART, Circuit Judge, specially concurring:

I concur in the pane l majority judgment which reverses the district court’s grant of

Moreland’s petition for habeas c orpus. I disagree, however, with that part of the panel

majority’s analysis that relates to its conclusion that 18 U.S.C. § 3624(b) is unambiguous.

I would reverse the district court’s grant of habeas relief for the following reasons.

First, the decisions of the district court and magistrate judge are carefully reasoned.

Even though I concur in reversing the judgment granting habeas relief to Moreland, I find

that the district court’s reading of § 3624(b) is both principled and reason able. Secondly,

even though not binding precedent, at least two panels within this circuit have noted that the

language of § 3624(b) supports the BOP’s method of calculating good time credit or,

“[a]lternatively,

. . . is ambiguous and that the BOP’s interpretation is entitled to deference

pursuant to Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.

, 467 U.S. 837 (1984).”

Bounds v. Reese

, 2005 WL 1870411 n.1 (5th Cir. 8/5/2005) (citing Sample v. Morrison

, 406

F.3d 310, 312-13 (5th Cir. 2005)). Thus, there are at least two reasonable interpretations of

this statutory language. I join a number of judges from our sister circuit courts of appeals,

and the district judge and magistrate judge below, in concluding that the pertinent statutory

language is ambiguous.

When a court reviews an agency’s constructio n of the statute which it

administers, it is confronted with two questions. First, always, is the question

whether Congress has directly spoken to the precise question at i s sue. If the

intent of Congress is clear, that is the end of the matter; for the court, as well

as the agency, must give e ffect to the unambiguously expressed intent of

Congress. If, however, the court determines Congress has not directly

addressed the precise question at issue, the court does not simply impose its45 The rule of lenity is not applicable to this question. See Sash v. Zenk

, --- F.3d

----, 2005 WL

2766782, *2-*3 (2nd Cir. 10/26/2005) (finding that t he purposes of the rule of lenity are not

implicated by this question because § 3624(b) is administrative and not criminal in nature).

18 own construction on the statute, as would be neces sary in the absence of an

administrative interpretation. Rather, if 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.

Chevron

, 467 U.S. at 842-843 (footnotes omitted). Congress has not addressed the precise

question at issue, namely which of these two pl ausible calculations is intended by this

language that attributes to the phrase “term of imprisonment” more than one definition within

a single sentence and within a single subsection of § 3624. Cf. Perez-Olivo v. Chavez

, 394

F.3d 45 , 50-51 (1st Cir. 2005) (concluding that neither the statute’s language nor its

legislative history indicates whether Congress intended to calculate good time credit based

on “time served” or “sentence imposed”). Therefore, under C hevron

, the only question

presented herein is whether the BOP’s calculation is based on a permissible construction of

§ 3624(b). 45

Rather than hinge re versal of the district court’s judgment upon whether this

ambiguity is dissolved by the context of the words, I would uphold the BOP interpretation

of the statute because it

is one of at least two reasonable interpretations of § 3624(b). S ee

Sample v. Morrison

, 406 F.3d 310, 313 (5th Cir.2005) (finding in dicta that “the plain effect”

of the annual, discretionary, award of good time credit contemplated by § 3624(b) is

consistent with the BOP’s interpretation of the statute). See also Perez-Olivo

, 394 F.3d a t

52-53; O’Donald v. Johns

, 402 F.3d 172, 174 (3d Cir. 2005); Yi

, 412 F.3d at 534; White

, 39019

F.3d at 1003; Pacheco-Camacho

, 272 F.3d at 1272; Brown

, 416 F.3d at 1273 (each finding

reasonable the BOP’s interpretation of § 3624(b)). Perez-Olivo discusses in some detail the

different meanings that the phrase “term of imprisonment” has within § 3624 and examines

whether the statute’s legislative history casts light upon Congress’ intent about the

calculation at bar. As noted in P erez-Olivo

, 394 F.3d at 51-52, regarding the calculat ion

urged by Moreland, v irtually every other court of appeals that has visited this issue “has

found that ‘term of imprisonment’ is ambiguous as used in § 3624(b)(1) and has upheld the

BOP’s interpretation of that term as meaning ‘time served.’”

I agree with our sister circuits that found ambiguous the § 3624(b) language and that

found applicable Chevron ’s deference. See Perez-Olivo v. Chavez

, 394 F.3d 45, 51 (1st Cir.

2005); O’Donald v. Johns

, 402 F.3d 172, 174 (3d Cir. 2005); Yi v. Fed. Bureau of Prisons

,

412 F.3d 526, 533 (4th Cir. 2005); White v. Scibana

, 390 F.3d 997, 1002-03 (7th Cir. 2004);

Pacheco-Camacho v. Hood

, 272 F.3d 1266, 1270-71 (9th Cir. 2001); Brown v. MacFadden

,

416 F.3d 1271, 1273 (11th Cir. 2005) (each finding § 3624(b) ambiguous under step one of

Chevron ). See also Chevron

, 467 U. S. at 842-43 (stating rule of deference to agency’s

administrative interpretation of ambiguous sta tutory language, in the absence of clear

congressional intent regard i ng the precise issue at bar). Unlike the other courts that have

addr essed this issue, the courts below violated C hevron when they chose Moreland’s

interpretation of this ambiguous statute over the reasonable interpretation of the BOP. For

this reason, I spe cially concur in the judgment which reverses the grant of habeas corpus

relief to Moreland.20