### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 10-40192

UNITED STATES OF AMERICA, Plaintiff-Appellee
v. GREGORY POLYDORE, Defendant-Appellant

Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:07-CR-101

Before JONES, Chief Judge, and OWEN and HIGGINSON, Circuit Judges. PER CURIAM: * 

### On September 15, 2004, Defendant Gregory Polydore pleaded guilt y to conspiracy to defraud the United States (wire fraud), in violation of 18 U.S.C. § 371. Polydore was sentenced to 15 months imprisonment, a $3,000 fine, $75,643 in restitu t ion and three years of supervised release. Polydore completed his term of imprisonment and began serving his term of s u p ervised release on September 6, 2006. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

## F I L E D Sep tem ber 2 5, 2 012 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. 

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### No. 10-40192

In June 2008, Polydore’s supervised release was revok e d and he was sentenced, inter alia, to one day of imprisonment and 30 months of supervised release, the first six months of which were to be served in home detention with electronic monitoring. In January 2010, Polydore’s supervised release was revoked a second time following his failure to adhere to certain conditions of the s u p e rvised release imposed following his first revocation. This second r evocation is the subject of Polydore’s instant appeal. At his second revocation hearing, Polydore w as sentenced to six months imprisonment and 29 months of supervised release. On July 30, 2010, P o l ydore was released from prison, but his case is not moot because he is still serving his 29-month term o f s upervised release

. United States v. Larez-Meraz , 452 F.3d 352, 355 (5th Cir. 200 6). Polydore challenges the 29-month s u p e rvi s e d r e l e a s e t e r m i m p o s e d a s part of his current revocation sentenc e , c o n t ending that the district court erred by failing to give him credit for the six-month term of home detention imposed as part of his first revocation sentence when calculating the maximum t e r m o f
supe rv i s e d release that may be imposed as part of his second revocation sentence. Under 18 U.S.C. § 3583(h), f o l l o w i n g the revocation of supervised release and the imposition of a term of imprisonment, a d i strict court may require the defendant to serve an additional term of supervised release. 18 U.S.C. § 3583(h). However, this additional term of supervised release may not 1 

### exceed the maximum term of supervised release for the original offense less any

18 U. S. C. § 3 583(h) pr ovide s: 1 Sup ervis ed rele ase fol low ing revoc atio n. – When a ter m of sup ervis ed rele ase d is revok ed and the def enda nt is requ ired to se rve a t e rm of im pr iso nme nt, the cour t may inclu de a re q uire me nt that the def enda nt be plac ed on a ter m of sup ervis ed rele ase aft er im pr iso nme nt. The length of suc h
a ter m of sup ervis ed rele ase sha ll not excee d the ter m of sup ervis ed rele ase autho rized by st a t u te for the off ens e that res ulte d in the origi nal ter m of sup ervis ed rele ase , les s any ter m of im pr iso nme nt that wa s i m p o s ed upon revoc atio n o f sup ervis ed rele ase
. 

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term of imprisonment imposed on revocation. Id. A term of imprisonment that

was imposed f

o l l o w i n g a prior revocation also must be deducted from the maximum term of supervised release. United States v. Vera , 542 F.3d 457, 462 (5th Cir. 2008). This court revi e w s de novo whether a defendant received a sentence in

excess of the sta t u t o r y m a x imum. Vera , 542 F.3d at 459; United States v. Ferguson , 369 F.3d 847, 849 (5th Cir. 2004) ( “ [W] e review de novo a sentence that allegedly exceeds the statutory maximum term”). A sentence that exceeds the statutory maximum is an illegal sentence and, we held in Vera , constituted plain error. 542 F.3d at 459. In Vera , we held that “under 3583(h) the maximum allowable supervised release following multiple revocations must be reduced by the aggregate length of any terms of imprisonment that have been imposed upon revocation.” Id. at 462 (internal quot a t i on marks omitted). Thus, any terms of imprisonment imposed in Polydore’s first and second revocation must be aggregated and subtracted from the maximum allowable term of supervised release. Polydore’s underlying offense carried a maximum statutory penalty of five
years of imprisonment, which make s it a Class D felony. 18 U.S.C. § 371; 18 U.S.C. § 3559(a)(4). The maximum term of supervised release for a C l a s s D felony is 36 months. See 1 8 U

. S

. C

. § 3583(b)(2). Following the instant revocation, Polydore was sentenced to six months imprisonment and 29 months supervised release. He previously was sentenced to one d a y imprisonment following the June 2008 revocation of his supervised release. The government

c o n t e nds that the district court correctly applied the statute and our casela w holding that o n l y t h e sum of these two prior terms of imprisonment are subtracted from the 36-month maximum term of supervised release, leaving 29 months and 29 days as the maximu m a v a i l able term of supervised release.

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Thus, the imposition of a 29-mon t h t e r m of supervised release following the instant revocation would not be erroneous. We agree. The issue before us is whether the first six months, served on home detention, of the 30-month term of superv i sed release that Polydore was sentenced to at his June 2008 revocation judgment, must be considered a term of imprisonment for the purposes of § 3583(h). If we accept Polydore’s argument that the six months of home detention is a term of imprisonment for the
p u rposes of calculating the maximum authorized term of supervised relea s e , then the previously imposed one day term of imprisonment and the six-month term of home detention would be added to the six-month term of imprisonment imposed at his second revocation and would all be deducted from the 36-month maximum term of supervised re l e a s e , leaving a maximum available term of supervised release of only 23 months and 29 days. In United States v. Ferguson , we held that, following the revo c a t i o n of supervised release, a court may not impose a term of incarceration and a term of home detention during supervised release that, when added together, would exceed the allowable maximum term of incarceration. 369 F.3d at 851–52. Following the revocation of his supervised release, the district court sentenced Ferguson to 23 months of imprisonment and i m p o s e d a term of 13 months of supervised release, the first six mo n t hs of which were to be served on home detention. Id. at 848–49. Ferguson argued that the combination of the 23-month terms of imprisonment plus the six-month term of home detention exceeded the applicable statutory maximum term of 24 months of imprisonment. Id. at 850. Citing § 3563(b)(19), we noted that home detention is a condition of supervised release that a court may impose o n l y a s an alternative to incarceration. Id. at 849–51; see18 U.S.C. § 3563(b)(19). 2

We note that tw o othe r cir cuit s have indi cat ed agree me nt wi th Fergus on
. See Uni ted 2 States v. Ma rca no , 525 F.3d 72, 73–74 (1s t Cir. 2008) (c itin g Fergus on in sup por t of its hold ing


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Our court in Fer

g uson , however, did not address the precise question raised by the instant case: whether a previously imposed term of home detention is a term of imp r i s o n ment for purposes of determining the maximum term of supervised release that may be imposed following a subsequent rev o c a t ion. Ferguson held that home detention may be credited against the maximum term of imprisonment that may be imposed following the revocation o f supervised

r e l e a s e. Ferguson , 369 F.3d at 849–52. We decline Polydore’s invitation to expand Ferguson to hold that home detention is a term of imprisonment for the
purposes of calculating the maximum term of supervise d r e lease that may be imposed upon revocation. Plain meaning analysis, the same a n a l ysis we used in Ferguson , requires this conclusion. See id. at 851–52. The statutory language of § 3583(h) does not include home detention in the calculation for maximum supervisory release that may be imposed upon revocation. Instead, § 3583(h) imposes the following limits o n s u p ervised release: “The length of

. . . supervised release shall not exceed the term of supervised release authorized by statute for the offense that r e sulted in the original term of supervised release, less any term of imprisonment t h a t w as

of no plai n err or because com binedterm of incar cer atio n and hom e det enti on we re les s than st atut ory maxim um) ; Uni ted States v. Boec ker , 280 F.3d 824, 826 (8t h Cir. 2002) (ho ldi ng that the low er cour t "w as enti tle d to se nte n c e Boeck er to up to 21 mo nths in pr iso n (no t [t he maxim um] 24 mo nth [und er § 3583( e)( 3)] beca use Boeck er had sp e nt 3 mo nths in hom e det enti on) ")

. Ho we ver, the Th i r d a n d Fourt h Circ uits have indi cat ed dis agree me nt wi th Fergus on. See Uni ted States v. Wil li am s , 387 F. App 'x 282 (3d Cir. 2010) (unp ublis hed) (no ting cir cuit sp lit and dec lining to find plai n err or bas ed on Fergus on hold in g) ; U nited States v. Ha ger , 288 F.3d136 , 137–38 (4t h Cir

. 2002) (hold ing t hat, be caus e h om e det enti on "is mo re pr ope rly view ed as a cond itio n of sup ervis ed rele ase " rat her than a ter m of incar cer atio n, hom e det enti on is not cre dit ed agains t the maxim um ter m of im pr iso nme nt that m ay be im pos ed fol low ing t he revoc atio n o f sup ervis ed rele ase ). Polydo re poi nts out that the cour t in Ha ger did not a t t a c k t h e dis tri ct cour t’s
cons ide rat ion of Ha ger’s six mo nths of hom e det enti on as a ter m of im pr iso nme n t for the pur pos es of im pos ing a maxim um ter m of sup ervis ed rele ase unde r 18 U. S. C. § 3583(h) in his fir st revoc atio n se nten ce. 288 F.3d at 138

– 39. Ho we ver, the dis tri ct cour t’s tre atm ent of § 3583(h) wa s not bef

ore t he cour t in Ha

ger and ther efo re the cour t wa s not requ iredt o r each thatis sue
. See id. at 137. 

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imposed upon revocation of supervised release.” 18 U.S.C. § 3583(h) (emphasis added). “Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not t o b e i m plied, in the absence of evidence of a contrary legislative intent.” United States v. Smith , 499 U.S. 160, 167 (1991) (internal quotation marks and citations omitted). The language of § 3583(h) makes n o m e n tion of home detention as a factor in the equation to determine the maximum term of supervised release that may be imposed upon

a defendant. Moreover, Polydore has not argued that there is any contrar y legislative intent. The Second Circuit has held t h a t t h e language of § 3583(h) “plainly indicates that courts are only required to credit time spent in prison.” United States v. Pettus , 303 F.3d 480, 484–85 (2d Cir. 2002) (holding that, for the
purposes of § 3583(h), a defendant is not entitled to a credit against his reimposed term of supervised rel ease for any time he previously spent on supervised release). Polydore argues that any term of home detention imposed under 18 U.S.C. § 3583 is considered the equivalent of a term of imprisonment because 18 U.S.C. § 3583(e)(4) states that “an order under this paragraph [ordering h o m e detention] may be impose d o n l y as an alternative to incarceration” and § 18 U.S.C. § 3563(b)(19) likewise provides that home dete nti o n “ m ay b e i m p o s e d only as an alternative to incarceration.” Under these two statutes, home detention is a referred to as an alternative to incarceration and, thus, home detention and imprisonment share the same time limitation. However, neither statute makes 3

In Fergus on , we use d a plai n language analys is of the t e r m “ a l t e r native ” in § 3 3583( e)( 4) and § 3563(b)( 19) t o c o n c l u d e that a ter m of incar cer atio n and sub se quent hom e det enti on im pos ed upon revoc atio n of sup ervis ed rele ase c a n n ot excee d the allow able
m aximu m incar cer atio n ter m. 369 F.3d at 851 (no ting that , “We bst er’ s Third N e w Inter natio nal Di cti onar y def ines ‘alt erna ti v e ’ a s ‘ a pr opo sit ion or sit uatio n off erin g a choi ce betw een tw o t hings w here in if one thing is chos en the othe r is rejec ted .’ ”)

. 

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the statement, nor should it be inferred, that home detention and incarceration are the same. 4 

### Furthermore, though Congress made the decision to link home detention and incarceration in 18 U.S.C. § 3563(b)(19) and 18 U.S.C. § 3583(e)(4), Congress made the decision to omit home detention from the formula for post-revocation supervised release in § 3583(h). When Congress includes particular la n g u age in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress act s i n tentionally and purposefully in the disparate inclusion or exclusion. See Pettus , 303 F.3d at 485 (internal citations omitted). Finally, Polydore’s home detention would not be considered a term of incarceration for the purposes of § 3583(h) because the terms of Polydore’s home detention were not as severe as or analogous to a ter m o f i n carceration. 5 

### Incarceration results in a total l o s s o f liberty. The terms of Polydore’s home

Not ably in Ha

ger , the Fourt h Circ uit held that hom e det enti on is not cre dit ed agains t 4 the m a x i m u m ter m of im pr iso nme nt that may be im pos ed fol low ing the revoc atio n of sup ervis ed rele ase
. De fen dant Ha ger unsu cce ss full y mad e an a rgum ent very sim ilart o t he
one Polydo re att em pt s to mak e here

. Ha ger argued that beca use 18 U. S. C. § 3583( e)( 4) st ates that hom e det enti on may be im pos ed only as an alte rnat ive to im pr iso nme nt, hom e det enti on is equivale nt to pr iso n. Ha ger , 288 F.3d at 137. The cour t dis agree d and obs erved , “Congr es s’ choi ce of the wo rd ‘alt erna tive’ doe s not indi cat e that hom e conf inem ent and incar cer atio n are equivale nts unde r the st atut e
. . . . The wo rd alte rnat ive sim ply doe s not im ply that tw o things
are the sam e o r equivale nt. ” Id. at 137–38.
The t erm s of Polydo re’ s hom e d ete ntio n w ere as f ollo ws : 5 The def enda nt sha ll be plac ed on hom e det enti on for a per iod not to excee d six (6) mo nths , to com me nce im me diat ely upon the com me ncem ent of sup ervis ed rele ase
. Du ring this tim e, the def enda nt sha ll rem ain at his plac e of res ide nce excep t for me dic a l r e a s o n s, tw o hours per we ek to att end chur ch, and app oint me nts wi th the U

. S

. Proba tion Of fic er. The def

enda nt sha ll mai ntain
a tel epho ne at his plac e of res ide nce wi thou t "ca ll for wa rd i n g , " " a mo dem ", "Calle r I.D ." , "ca ll wa itin g", or por tabl e cor dle ss tel epho ne for the above per iod

. At the dir ect ion of the pr obat ion off icer , the def

enda nt sha ll we ar an elec tro nic
mo nito ring devic e and fol low elec tro nic mo nito ring pr oce dur es sp ecif ied by the pr obat ion off

icer

. The def

enda nt is to pay the cos t ass ocia ted wi th his pr ogram of elec tro nic mo nito ring. 

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### No. 10-40192

detention allowed him to be at home, albeit w i th restrictions and confines, yet still enjoying the comforts of that goodly home with access to family and friends. Polydore was allowed t o l eave his home for church, visits to the doctor, and appointments with his probation officer

. P o l ydore’s home detention was not a term of incarceration. For the reasons stated above, defendant Polydore’s sentence is AFFIRMED.

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### 10-40192

OWEN, Circuit Judge, concurring. I fully join the panel’s opinion. I write separately to address the phrase in 18 U.S.C. § 3583(e)(4) that provides: “except that an order under this paragraph [permitting imposition of home detention] may be imposed only as an alt e rn ative to incarceration” and to cons i d e r i n m ore detail the argument that under the provision in § 3583(h) requiring credit for “any term of imprisonment that was imposed upon revocation of supervised release,” the maxi m u m term of supervised release must be reduced by time spent subject to home detention. I also write separately to consider the tension between our decision today and a prior decision of our court, United States v. Ferguson , construing the “only 1



### as an alternative to incarceration” phrase. We held in Ferguson that because of that phrase, courts are required to credit time spent subject to home detention against the statutory maximum ter m o f i m p r is o n m e n t th at may be imposed upon revocation of supervised release. Although the holdin g i n F erguson does not 2



### c o ntrol the present case, its logic supports the conclusion that home de t e n t i o n should be treated the same way in determining the maximum length of a term of supervised release that a sentencing court may impose after revocation of

s u p e rv i s ed release. I respectfully submit that Ferguson ’s construction of the “only as an alternative to incarceration” language in 18 U .S.C. § 3583(e)(4) is plausible when that phrase is considered in isolation. But when considered in 3

369 F.3d847 ( 5th Cir. 200 4). 1
Id. at851 (“[ T]he plain m eaning of ‘ alte rnat ive’ lead s to the conc lus ion thata cour t 2 coul d not im pos e both a ter m o f i n c a r c erat ion (up on revoc atio n of sup ervis ed rele ase ) and sub se q u ent hom e det enti on dur ing a reim pos ed ter m of sup ervis ed rele ase that , wh en com bined , excee ds t he allow able maxim um incar cer atio n t erm .” ).

See gener al ly Reno v. Kora y , 515 U. S. 50, 56 (199 5) (exam ining the argum ent that the 3 phr ase “of

fic ial det enti on” in 18 U. S. C. § 3585(b) inclu des conf inem ent in a com mun ity tre atm ent cent er wh ile rele ase d on bail and obs erving that “[v]iew ing the phr ase in iso lati on, it may be s a i d t h a t [ s u c h a] read ing is plau sib le” ); see also id. at 62 (“ This cont enti on is a plau sib le one if t h e p hras e is read in iso lati on: res pond ent wa s subject ed to res tri cti ve cond itio ns wh en rele ase d on bail, thes e c o n d i t i o n s we re im pos ed by a cour t ord er, and his


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### 10-40192

c o n t e x t and in conjunction with other statutes enacted at the same time, o u r 4 

### decision in Fergusonappears to have misconstrued §§ 3583(e)(4) and 3583(h). I Polydore was convicted of a Class D felony and sentenced to imprisonment and a term of supervised relea s e a f t e r imprisonment. The question before us

concerns the options a court has under 18 U

. S

. C

. § 3583(e) when it decides to modify or revoke supervised release. S p e c i fically, the question is how time served subject to home detention, as described in § 3583(e)(4), should be treated in calcul a t ing the maximum term of supervised release that may be imposed after revocation of supervised release. Polydore was originally sentenced to fifteen months of imprisonment to be followed by three years of supervised release. The maximum term of supervised release that the original sentencing court could impose for such a conviction was thirty-six months. Polydore served his initial p r ison sentence and began 5



### se rvi n g h i s initial term of supervised release. He violated the terms of supervised release, and supervised release was rev o k ed. Upon revocation, Polydore was sentenced to serve one day in prison to be followed by twenty-nine months of supervised re l e a se. The twenty-nine months of supervised release

sojourn in the com mun ity tre atm ent cent er ther efo re amo unte d to ‘of fic ial det enti on. ’”)

. See gener al ly id. at 56 (“ [I]t is a ‘f undam enta l pr incip le of st atut ory cons tru cti on (and , 4 inde ed, of language itse lf) that the meani ng of a wo rd canno t be det erm ined in iso lati on, but
mus t be dr aw n fr om the cont ext in wh ich it is use d. ’” (quo ting De al v. Uni ted States , 508 U. S. 129, 132 (199 3)) ); id. (no ting that the Bail Refo rm Act of 1984 wa s enac ted in the sam e st atut e as the Sent enci ng Refo rm Act of 1984 and that “‘[ i]t is not uncom mo n to ref er to othe r, rela ted legis la t i v e e n act me nts wh en inte rp ret ing sp ecia lized st atut ory ter ms ,’ sin ce Congres s is pr es ume d to have ‘legis late d wi th ref ere nce to’ thos e ter ms ” (quo ting Go zlon- Pere tz v. Uni ted States , 498 U. S. 395 , 407- 408 (199 1)) ).

18 U. S. C. § 3583(b)( 2) (“ Excep t a s o t h e r wi se pr ovide d, the autho rized ter ms of 5 sup ervis ed rele ase ar e .
. . f or a Cla ss C or D fel ony, not mo re than thr ee years
. . . . ”)

.



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### 10-40192

included six months of home detention, as defined in § 3583(e)(4). During this 6 

### period of supervised release, after Polydore had spent six months in home d etention, his supervised release was again revoked. The district court then sentenced Polydore to six months of imprisonment to be followed by twenty-nine months of supervised release. Polydore contends that the maximum time that the district court could sentence him to post-revocation supervi s e d r elease for this violation of supervised release was twenty-fo u r m o n t hs. Polydore arrives at this calculation by insisting that he receive credit for the six months that he

was subject to home detention. Polydore argues that these six months are to be added to the six-month term of imprisonment that he served and then that total of twelve months must be subtracted from the maximum term of supervised release, thirty-six months, that could have been imposed. He argues that under § 3583(e)(4), home detention is considered the equivalent o f a t e rm of imprisonment and that unde r § 3 5 83(h), the district court was required to aggregate all the prison terms imposed f o r t h e prior revocations of supervised release and subtract that tot a l f r o m the thirty-six-month term of supervised release authorized for the Class D offense that resulted in the original term of supervised release. Polydore’s position fails for at least two reasons. First, time spent subject to home deten t ion is not a “term of imprisonment” within the meaning of § § 3 5 8 3 (h) and 3583(a). Second, the phrase “only as an alternative t o incarceration” was added to § 3583(e)(4) at the same time it was added to other statutes, and it is clear from the p h r a se’s use in the other statutes that home

Id. § 3583( e)( 4) (p rovid ing that upon mo dif icat ion or revoc atio n of sup ervis ed rele ase , 6
a cour t may “or der the def enda nt to rem ain at his plac e of res ide nce dur ing nonw ork ing hours and, if t he cour t so dire cts , to have co mp lianc e moni tor ed by tele phon e or elec tro nic de vices , excep t that an ord er unde r this par a gr a ph may be im pos ed only as an alte rnat ive to incar cer atio n”)

. 

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### 10-40192

detention w a s n o t i n t ended by Congress to be the equivalent of a term of imprisonment. II In subsection 3583(e), Congress has provided several alternatives when a court chooses to modify or revoke supervised release. The first alternative, set 7

Id. § 3583( e), w hich pr ovide s: 7 (e) M ODI FICAT IO N OF C ONDI T IO N S OR R EVOCAT IO N .—The cour t may, aft er cons ide ring the fac tor s se t for th in se cti on 3553( a)( 1), (a) (2) (B) , (a) (2) (C ), (a) (2) (D ), ( a)( 4), ( a)( 5), ( a)( 6), and( a)( 7)— (1) ter mi nate a ter m of sup ervis ed rele ase and disc harge the def enda nt rele ase d at any tim e aft er the e x p i r a t i o n of one year of sup ervis ed rele ase , pur sua nt t o the pr ovis ions of the Fede ral Rules of Crim inal Proc edur e rela ting to the mo dif icat ion of pr obat ion, if it is sat isf ied that
suc h act ion is wa rra nted by the cond uct of the d e fen dant rele ase d and the inte res t of just ice; (2) exten d a ter m of sup ervis ed rele ase if les s than the maxim um autho ri zed ter m wa s pr evious ly im pos ed, and may mo dif y, red uce, or enlar ge the cond itio ns of sup ervis ed rele ase , at any t i m e pr ior to the expir atio n or ter mi natio n of the ter m of sup ervis ed rele ase , pur sua nt to the pr ovis ions of the Fede ral Rules of Crim inal Proc edur e rela ting to the
mo dif icat ion of pr obat ion and the p r o v i s i ons app licable to the init ial
se tti ng of

t he ter ms andc ondi tio ns of pos t- rele ase s uper visi on; (3) revok e a ter m of sup ervis ed rele ase , and r e q uire the def enda nt to se rve in pr iso n all or par t of the ter m of sup erv i s e d rele ase autho rized b y s t atut e for the off ens e that res ulte d in suc h ter m of sup ervis e d rele ase wi thou t cre dit for tim e pr eviou s l y se rved on pos tre leas e sup ervis ion, if the cour t, pur sua nt to the Fede ral Rules of Crim inal Proc edur e app l i c able to revoc atio n of pr obat ion or sup ervis ed rele ase , find s by a pr epo nder ance of t he evide nce thatt he def enda nt violat ed a cond itio n of sup ervis ed r e l e a se , excep t that a def enda nt wh os e ter m is revok ed unde r this par agrap h may not be requ ired to se rve on any suc h
revoc atio n mo re than 5 years in pr iso n if the off ens e that res ulte d in the ter m of sup ervis ed rele ase is a clas s A fel ony, mo re tha n 3 years in pr iso n i f suc h o ff

ens e i s a c las s B f

elony, m ore t han 2 yea rs inp ris on if
suc h off ens e is a clas s C or D fel ony, or mo re than one year in any othe r cas e; or ( 4 ) ord er the def

enda nt to rem ain at his plac e of res ide nce dur ing
nonw ork ing hours and, if the c o u r t so dir ect s, to have com pli ance mo nito red by te l epho ne or elec tro nic signa ling devic es , excep t that an 

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### 10-40192

forth in the first paragraph of § 3583(e), is that a court may “terminate a term of supervised release and discharge the defendant released at any time after the expiration of one year of supervised release

. . . .” The second alternative is set 8 

### forth in the second paragraph of § 3583(e). Under that alternative, a court may “extend a term of supervised release if less than the maximum authorized term

was previously imposed

. . . .” A court may also “modify, reduce, or enlarge the 9 

### conditions of supervised release” under this alternative. 1 0 

### We are today concerned with the third and fourth paragraphs of § 3583(e). Under the third paragraph, a court may “revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized b y statute for the offense that resulted in such term of supervised release without credit for time previously served o n postrelease supervision

. . . .” The fourth paragraph of § 3583(e) provides that a court may 1 1 

### “order the defendant to remain at his place of res i d ence during nonworking hours and, if the court so directs, to have compliance monitored by telephone or electronic signaling devices, except that an order under this paragraph may be imposed only as an alternative to incarceration .” 1 2 

### Polydore’s argument seems to be that home detention is not an alternative
to modify i ng or extending supervised release

. Under this construction, home detention is an alternative only to incarceration

. This would mean that under

ord er unde r this par agra p h m a y be im pos ed only as an alte rnat ive to incar cer atio n. Id. § 3583( e)( 1). 8
Id. § 3583( e)( 2). 9
Id. 1 0
Id. § 3 583( e)( 3) (em phas is add ed)

. 1 1
Id. § 3 583( e)( 4) (em phas is add ed)

. 1 2


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### 10-40192

subsection (3), when a court is given the authority to “revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release without credit for time previousl y s erved on postrelease supervision,” a court can order a defendant to serve in home 1 3 

### detention rather than in prison all or part of the maximum amount of time o f supervised release authorized by statute for the offense. Time subject to home detention would not be part of supervised release but would instead be the locale of the term of imprisonment, as an alternative to i n carceration in a Bureau of Prisons (BOP) facility. A corollary argument that supports Polydore’s position is that because home detention is to be treated only as an alternative to “incarceration” under subsection (4) o f § 3583(e) and because, Polydore argues, the time that would otherwise be spent “in prison” under subsection (3) of § 3583(e) can be spent in home detention by virtue of subsection (4), home detention is to be treated as a “term of imprisonment” wi t h i n the meaning of the crediting provision in § 3583(h). This construction is problematic for several reasons.

1 4 

### One is that § 3583(d) also authorizes a court to impose any condition upon supervised release that it may impose a s a condition to probation under § 3563(b). A court has the same authority to impose the conditions set forth in

Id. § 3583( e)( 3) (em phas is add ed)

. 1 3
Id. § 3583(h), w hich pr ovide s: 1 4 (h) S U P E R

VISE D R E L EASE F O LL O WI NG R EVO CA TI O N .—Wh en a ter m of sup ervis ed rele ase is revok ed and the d e f e n d a n t is requ ired to se rve a ter m of im pr iso nme nt, the cour t may inclu de a requ irem ent t h at the def enda nt be plac ed on a ter m of sup ervis ed rele ase aft er im pr iso nme nt. The length of suc h
a ter m of sup ervis ed rele ase sha ll not excee d the ter m o f sup ervis ed rele ase autho rized by st atut e for th e off ens e that res ulte d in the origi nal ter m of
s u p e rvise d rele ase , les s any ter m of im pr iso nme nt that wa s im pos ed up o n revoc atio n o f sup ervis ed rele ase
. 

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### 10-40192

§ 3563(b) when it revokes supervised release and orders a term of imprisonment that is to be followed by another ter m o f supervised release. Accordingly, 1 5 

### § 3583(d), by referencing § 3563(b)(10), permits a court to require a defendant,

as a condition of supervised release, to “remain in the custody of the Bureau of Pr isons during nights, weekends, or other intervals of time, totaling no more than the lesser of one year or the term of imprisonmen t a u t h o r i z ed for the offense, during the first year of the term of probation

. . . .” However, there is 1 6



### no proviso like the one in the home detention subsection that provides that time spent in the custody of the BOP during nights and weekends or other intervals of time “may be imposed only as an alternative to incarceration.” If Congress 1 7 

### intended for time s p e n t i n home detention to be considered the same as time spent serving a term of imprisonment following revocation of supervised release, it is exceedingly odd that Congress failed to provide a crediting mechanism for time spent in the custody of the BOP as a condition of supervised release. The existence of provisions in the probation and supervised rel e a s e statutes that permit a court to require intermit t e n t incarceration in BOP custody as a condition of probation or supervised release do, however, serve as

an explanation for the inclusion of the “only as an alternative to incarceration” provisos applicable to home detention. Congress recognized that someone who spends night, weekends or other intervals of time in the custody of the BOP as

a condition of probation or supervised release is actually incarcerated for those periods of time, though not serving a “term of imprisonment.” The “only as an alternative to incarceration” exception can r e a s o n ab ly be construed to mean that home detention should only be used as an alte r native to intermittent

See Johns on v. U

nitedState s , 529 U. S. 694 , 708 (200 0). 1 5
18 U .S .C. § 3563(b)( 10); id. § 3583( d)

. 1 6
Id. § 3583( e)( 4). 1 7


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### 10-40192

incarceration while in the custody of the BOP, which is authorized as a condition of probation in § 3563(b)(10) and as a condition of supervised release in § 3583(d) through its ref

e r e n c e t o § 3563(b)(10). The “only as an alternative to 1 8 

### incarceration” phrase al s o emphasizes to a sentencing judge that home confinement is very a restrictive condition. Another reason that Polydore’s construction of §§ 3583(e)(4) and 3583(h) is problematic is that the phrase “term of imprisonment” generally has a specific meaning as used in the statutes that govern sentencing. Congress has defined 1 9 

### when and how a term of imprisonment commences to run. “A sentence to a term of imprisonmen t c o m mences on the date the defendant is received in custody awaiting transportation to, or a rrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.” 2 0 

### A defendant sentenced to a term of imprisonment is “committed to the custody of the Bureau of Prisons . . . .” A defendant who is subject to home detention 2 1 

### is not in the custody of the BOP. The Supreme Court explained in Reno v. Koray that Congress has drawn

a distinction between being in the custody of the BOP in “‘official detention’” and being released from the c u s t ody of the BOP while on probation or supervised

But see Uni ted States v. Fergus on , 369 F.3d 847, 851 (5t h Cir. 2004) (r eject ing the 1 8 Go vernm ent’ s argum ent that “alt erna tive to incar cer atio n” pr ovis o in the hom e det enti on pr ovis ions “ ref

ers t o i nter mi tte nt det enti on and com mun ity cor rec tio n f acil itie s” ).
But see Barb e r v
. T

h o m a s , 130 S. Ct. 2499, 2506 (201 0) (r eco gnizing that the 1 9 pr es ump tio n that a gi v e n t e r m is to me an the sam e thing thr oughout a st atut e “is not abs olut e” and “yiel ds read ily to indi cat ions that the sam e phr ase use d in dif fer ent par ts of the
sam e st atut e me ans dif fer ent things, par tic ularl y wh ere the phras e is one that sp eak ers can eas ily use in dif

fer ent wa ys wi thou t ris k of conf usi on” and conc ludi ng that “[ t] he phr ase ‘te rm of im pr iso nme nt’ is just suc h a phr ase ” as use d in 18 U. S. C. § 3 6 2 4 , w hich per tains to the calc ulati on of goodt im e c red its ( cit atio ns om itt ed) ).

18 U .S .C. § 3585( a). 2 0
Id. § 3621( a). 2 1


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### 10-40192

release. The issue in Koray was whether a defendant was entitled to credit for

2 2 

### time spent confined to a community treatment center while he was released on bail after he pleaded guilty but before he was sentenced. The Court construed 2 3 

### § 3585(b), which governs credit given for time spent in “official detention prior to the date the sentence commences,” and held that “official detention” as used 2 4 

### in that section does not include time spent in a treatment center while released

on bail. Although the Supreme Court was not presented with the issue that we

2 5


### must decide today, the Court did reason that “[i]t would be anomalous to interpret § 3585(b) to require sentence credit for time spent confined in a community treatment center where the defendant i s n o t s ubj e ct t o B O P ’ s c ontrol, since Congress generally views such a restriction on liberty as part of a sentence of ‘probation,’ or ‘supervised release,’ see § 35 8 3 ( d) , r a ther than part of a sentence of ‘imprisonment.’” 2 6 

### The defendant in K

o r a y a r g ued that a prisoner still serving a prison sentence in the custody of the BOP could be directed to spend part of a term of imprisonment in a community treatment center and th e r e fore that “it [was] improper to focus on the release/detention dichotomy.” T h e Supreme Court 2 7



### r ej ected this argument, recognizing that although “a defendant ‘released’ t o a community treatment center could b e s u bj ect to restraints which do not materially differ from those imposed on a ‘detained’ defendant committed to the custody of the Attorney General” and then assigned to a treatment center, the

515 U. S. 50, 59 (199 5). 2 2
Id. at 53-5 4. 2 3
18 U .S .C. § 3585(b). 2 4
Ko ra y , 515 U. S. at52. 2 5
Id. at59 (c itat ions om itt ed)

. 2 6
Id. at 62. 2 7


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### 10-40192

identity of the custodian was “an important distinction.” The Court reasoned 2 8


### t h a t “ [ a] d efendant who is ‘released’ is not in BOP’s custody, and he cannot b e summarily reassigned to a different place of confinement unless a judicial officer revokes his release . . . or modifies the conditions of his release.” 2 9 

### The Supreme Court’s opinion in Koray refle c ts that the Third Circuit Court of Appeals had attempted to equalize treatment of defendants confined by

some branch of government i n a community treatment center, and the Third 3 0 

### Circuit had held that “‘official detention’ for purposes of credit under 18 U.S.C. § 3585 i n cludes time spent under conditions of jail-type confinement.” The 3 1 

### Supreme Court rejected the Third Circuit’s “jail-type confinement” test. The 3 2 

### Court observed that while “[i]t may seem unwise policy to tre a t d e f e n d ants differ ently for purposes of sentence credit under § 3585(b) when they are similarly situated in fact,” the Third Circuit’s attempt to equalize treatment of 3 3 

### “detained” inmates and “released” defendants had “its own grave difficulties.” 3 4

Id. at 62-6 3; see also id. at 63 ( “U nlik e def enda nts ‘re leas ed’ on bail, def enda nts wh o 2 8
are ‘de taine d’ or ‘s ente nced ’ al wa ys rem ai n subje ct to the control of the Burea u .” (em phas is in origi nal) ( cit ing Rand al l v. W helan , 738 F.2d522 , 525 (4t h Cir

. 1991) ))

. Id. at63. 2 9
Renov
. Kora

y , 515 U. S. 50, 53 (199 5). 3 0
Kora y v
. Sizer , 21 F. 3d 558, 567 ( 3d Cir. 199 4), rev ’d , 515 U. S. 50 (199 5). 3 1
Kora y , 515 U. S. at64. 3 2
Id. 3 3
Id. (“ It m a y s e e m unw ise pol icy to tre at def enda nts dif

fer entl y for pur pos es of 3 4
se nten ce cre dit unde r § 3585(b) when they are sim ilar ly sit uate d in fac t—the one is conf ined to a com mun ity tre atm ent cent er aft er having been ‘de taine d’ and com mi tte d to the Bureau ’s
cus tod y, wh ile the othe r is ‘re leas ed’ to suc h a cent er on bail. But the alte rnat ive cons tru cti on ado pt ed by the Court of App eals in this c ase has its ow n grave dif fic ulti es
. To det erm ine in each cas e wh ethe r a def enda nt ‘re leas ed’ on bail wa s subject ed to ‘jail- type conf inem ent’ wo uld requ ire a fac t- inte nsi ve inquir y i n t o t h e cir cum st ance s of conf inem ent, an inquir y bas ed on info rm atio n i n the hands of pri vate ent itie s notavailable to the Bureau as a matt er of right. Even we re suc h info rm atio n mo re read ily availabl e, it se em s cer tain that the phr ase ‘jail- type


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### 10-40192

The Court instead accepted the Government’s construction of what constituted “detention,” concl u ding that this interpretation provided “clear notice of the consequences of a § 3412 ‘release’ or ‘detention’ order.” 3 5 

### Although confinement in a community center was at issue in Koray , and the statute under scrutiny was § 3585, the rationale of Koray applies with equal force to home detention as a condition of su p e rv i sed release under § 3583. A defendant subject to home detention as a condition of supervised release is not in the custody of the BOP. A defendant subject to home detention cannot be summaril y o rdered to a different place or manner of confinement by the BOP. Only a court may revoke or modify the home detention condition. Ho m e 3 6 

### detention is not the equivalent of official d e t e n t i o n by the BOP or a “term of 3 7 

### imprisonment.” Polydore’s contention that home confinement should be treated as a “term of imprisonment” for purposes of the crediting provi s i o n in § 3583(h) must be rejected. III The history of the phrase “only as an alternative to incarceration” provides another strong indication that Congress did not intend for time spent subject to

conf inem ent’ wo uld rem ain suf fic ient ly vague and amo rp hous so that muc h the sam e ki nd of dis par ity in tre atm ent for sim ilar ly sit uate d def enda nts wo uld aris e. The Go ve r n m ent’ s cons tru cti on of § 3585(b), on the othe r hand, p r o v i d e s both it and the def enda nt wi th clea r noti ce of the cons equenc es of a § 3 142 ‘re leas e’ or ‘de tent ion’ or der .” ).
Id. 3 5
See18 U. S. C. § 3 583( e). 3 6
See Uni ted States v. Zack ula r , 945 F.2d 423, 425 (1s t Cir. 1991) (c ons tru ing § 3585 3 7 and holding that“[w ]e do not belie ve that the ‘off icia l det enti on’ require me nt of sect ion 3585
can be fulf

illed by hom e conf

inem ent. While a def enda nt’ s mo veme nt m a y b e se verel y cur tail ed by the cond itio ns of his hom e conf inem ent, it canno t se ri o usl y be doub ted that conf inem ent to the com for t of one’ s ow n hom e is not the func tio nal equivale nt of incar cer atio n in eit her a p rac tic al or a p syc hologic al se nse .” ).


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### 10-40192

home detention to be treated the same as time spent serving a ter m of imprisonment. The Anti-Drug Abuse Act of 1988 added virtually identical home detention provisions to the then-existing pr o b a tion, parole, and supervised release statute s
. Each of the home detention provisions added in 1988 3 8 

### contained the phrase “except that a c o n d i t i o n under this paragraph may be imposed only as an alternative to incarceration.” The title of the section of the 3 9 

### Anti-Drug Abuse Act that added the home detention prov i sions was “HOUSE PROBATION A S A CONDITION FOR PROBATION, PAROLE, OR SUPERVISED RELE A S E

. ” While the title of the section is certainly not 40 

### dispositive, th e d e s c rip ti o n o f th e h o m e d e t e nti o n provisions as “house probation” is consistent with the fact that a term of imprisonment was entirely distinct from probation, parole, and supervised release. In 1988, when the “only as an alternative to incarceration” p h r a se was added, the probation statutes expressly prohibited a court from imposing a term of probation if the court sentenced the defendant to “a term of imprisonment” at the same time. That prohibition has remained unchanged. If home detention 4 1 4 2



### w e re the same as “a term of imprisonment,” a sentence of probation inclu d i n g home deten t i o n a s an element or condition would violate § 3561(a)(3). But Congress, since 1988, has expressly permitted a court to include home detention

as a “condition[] of a sentence of probation.” The “except that a condition under 4 3

Pub. L. No. 100 -690 , § 7 305, 102 S tat

. 4181, 446 5-66 ( 1988)

. 3 8
Id. 3 9
Id. at 4465. 4 0
18 U .S .C. § 3561( a)( 3) (198 8) (c urr ent vers ion at 18 U .S .C. § 3561( a)( 3) (200 6))

. 4 1
18 U. S. C. § 3561( a)( 3) (“A def enda nt wh o has been fou nd guilty of an off ens e may be 4 2
se nten cedto a term of pro bati on unles s . . . the def enda nt is se nten ced at the same tim e to a ter m of im pr iso nme nt fort he sam e o r a d iff ere nt off ens e t hat is not a p ett y of fen se .” ).
Id. § 3 563(b)( 19). 4 3


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### 10-40192

this paragraph may be imposed only as an alternative to incarceration” proviso in the home detention provision could not convert home detention as a condition of probation into a te r m o f i m p risonment without conflicting with an express prohibition regarding probation. Similarly, 18 U.S.C. § 4209(c)(2) governs parole. The Supreme Court has described parole as a pre-Guidelines “nondetentive monitoring” option, closely “analogous to superv i s e d release.” The Court explained that “parole

. . . by 4 4 

### definition was a release under supervision of a parole officer following service of

some term of incarceration.” Here again, Congress authorized home detention

as a permissible condition of parole. The proviso “except that a condition under this paragraph may be imposed only as an alternative to incarceration” did not convert this condition of parole into a term of imprisonment. We should generally presume that when Congress uses the same phrase

m o r e t h an once within an enactment or a section of an enactment, the phr a s e has the same meaning throughout the provision. It would be unreasonable to 4 5 

### conclude that in adding home detention provisions to the probation and parole statutes, Congress intended the home detention provis i o n s it simultaneously added to the supervised release statutes to mean something different. There is

no basis for concluding that by including the “only as an alternative to incarceration” language in the pr o visions governing supervised release that Congress intended home detent i o n t o b e the equivalent of a term of imprisonment rather than a condition of supervised release. IV

Johns on v. U

nitedState s , 529 U. S. 694 , 710- 11 ( 2000)

. 4 4
Se e B a r b e r v. Thom as , 130 S. Ct. 2499, 2506 (201 0) (“ [W] e have rec ognized a 4 5 ‘pr es ump tio n that a given ter m is use d to me an the sam e thing t h r o u gh o u t a st atut e.’ ”) (quo ting Brow n v
. Ga rdne r , 513 U. S. 115 , 118 (199 4))

. 

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### 10-40192

The phrase “exc e pt that an order under this paragraph may be imposed only as an alternative to incarceration” w a s t h e p r incipal basis for this court’s holding in United States v. Ferguson

. We held in that case that in calculating 4 6


### t h e maximum time a defendant may be imprisoned following revocation o f supervised release, home detention must be counted as time incarcerated. 4 7 

### T h e decision in Ferguson reasoned that a “court’s power to order home detention as a condition of supervised release stems from § 3583(d), which in
turn refers to § 3563(b)(19).” The opinion i n F e r guson observed that under 4 8 

### § 3583(d), in imposing conditions of supervised release as part of a sentence, a court may impose “any condition set forth as a discretionary c o n d ition of probation in section 3 5 6 3 (b )

. ” The court reviewed the list of conditions 4 9 

### enumerated in § 3563(b) that may be imposed, including that a defendant “reside at

. . . a community corrections facility (including a facility maintained

or under contract to the Bureau of Prisons) for all o r p a r t of the term of probation,” “work in community service a s d i r e c ted by the court” or that a

5 0 5 1 

### defendant “reside in a specified place or area, or refra i n from residing in a speci f i e d place or area.” None of these conditions, however, has the 5 2 

### “alternative to incarceration” proviso, and we found that to be compelling. After

369 F.3d847 ( 5th Cir. 200 4) (p er cur iam ). 4 6
Id. at 85 0

- 5 1 ; s ee also Uni ted States v. Boec ker , 280 F.3d 824, 826 (8t h Cir. 2002) 4 7 (ho ldi ng that upon revoc atio n of sup ervis ed rele ase fol low ing im p r i s o n m e nt for a Clas s C fel ony, “th e cour t wa s enti tle d to se nten ce Boeck er to up to 21 mo nths in pr iso n (no t 24 mo nths [t he st atut ory maxim um] be caus e Bo eck er had sp ent 3 m onth s in hom e d ete ntio n)

. . . .” ).

Fergus on , 396 F.3dat851

. 4 8
18 U .S .C. § 3583( d)

. 4 9
Id. § 3 563(b)( 11). 5 0
Id. § 3 563(b)( 12). 5 1
Id. § 3563(b)( 13). 5 2


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### 10-40192

examining the almost identical h o me detention provisos in § 3563(b)(19) and § 3583(b)(4), we concluded that “unlike other discretionary conditions, home detention is unique.” We considered “the language and interplay of § 3583 and 5 3 

### § 3563” and held that “[t]he statutory framework governing rev o c a t i on and punishmen t for violating a condition of supervised release—§ 3583(e)—alone implies that i nc arceration and home detention are alternative punishments that
may not combine in excess of the max imum statutory term of incarceration.” 5 4 

### We observed in Ferguson that an option open to a sentencing court that revokes
superv i s e d release is to “order an incarceration term less than the maximum allowable t e r m a nd reimpose a term of supervised release under § 3583(h).” 5 5 

### We made clear that even if a court imposes a “partial sentence of incarceration,”

a partial sentenc e o f i n c a rceration combined with a period of home detention could not exceed the maximum term of incarceration. 5 6 

### For the reasons discussed ear l i e r r e garding the meaning of the phrase “term of imprisonment” and because of the history of the “only as an alternative
t o incarceration” phrase, I am compelled to conclude that our reaso n i n g i n Ferguson was flawed, and we should not e x t e n d t h e logic of Ferguson to the present case.

Uni ted Sta tes v. Fe rguso n , 369 F.3d847 , 851 (5t h Cir

. 2004)

. 5 3
Id. at 850. 5 4
Id. at 850- 51. 5 5
Id. at 851 (“ Sec tio ns 3583( e)( 3) and (e) (4) mak e clea r that incar cer atio n and hom e 5 6 det enti on are mut uall y e x c l u sive wh en a cour t im pos es the maxim um se nten ce of incar cer atio n; a cour t coul d not im pos e the maxim um ter m of incar cer atio n unde r sub se cti on (e) (3) and als o im pos e a per iod of hom e det enti on unde r (e) (4)

. Th e governm ent doe s not expla in wh y the sam e lim itat ion wo uld not hold tru e wh en a cour t im pos es a par tial se nten ce of incar cer atio n.” ).


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### 10-40192

Our decision i n Ferguson conflicts with a decision of the Fourth Circuit Court of Appeals. T h a t court held that time served in home detention is not 5 7 

### subtracted from t h e s t atutory maximum term of imprisonment imposed for revocation of supervised release. 5 8 

### Differing views have been expressed by courts in other jurisdictions as to how or whether home detention or community confinement should be considered in determining if a sentence exceeded a federal statutory maximum duration of

a sentence, or if a sentence was outside federal Guideline provisions that are 5 9 

### similar, but not identical, to or as extensive as federal statutes regarding home detention. I cite these decisions only in the margin and will not lengthen this 6 0

See Uni ted Sta tes v. H ager , 288 F.3d136 ( 4th Cir. 200 2). 5 7
Id. at 137- 39. 5 8
U. S. S. G. §§ 5B1.3 (e) (2) (“ Ho me det enti on may be im pos ed as a cond itio n of pr obat ion 5 9 but on l y a s a sub st itut e for im pr iso nme nt. ”) ; 5F1.2 (“ Ho me det enti on may be im pos ed as a cond itio n o f pr obat ion or sup ervis ed rele ase , but only as a s ubs tit ute forim pr iso nme nt. ”)

.

Uni ted Sta tes v. M

ar ca no , 525 F.3d72, 73- 74 ( 1stCir

. 2008) ( per cur iam ) (ho ldi ng 6 0 it wa s not plai n err or for the dis tri ct cour t to im pos e hom e conf inem ent as a co n d i tio n of sup ervis ed rele ase pur sua nt to § 3563(b)( 19) , but noti ng that wh ile in this ins tanc e, the per iod of incar cer atio n and hom e conf inem ent com bined did not excee d the maxim um incar cer atio n ter m, the def

enda nt “m ade a colo rable argum ent that the dis tri ct cour t coul d not have im pos ed
a pe r i o d o f i ncar cer atio n and sup ervis ed rele ase involving hom e conf inem ent in exces s of

. . . the st atut ory maxim um” ); Uni ted States v. Kra vc huk , 335 F.3d 1147, 1159- 60 (10t h Cir. 2003) (ho ldi ng that unde r U. S. S. G. § 5D 1.3( e)( 2) “hom e conf inem ent is only to be sub st itut ed for im pr iso nme nt” and thus , the dis tri ct cour t err ed in fai ling to pr ovide reas ons for incr eas ing his se nten ce beyond the guideline maxim um in req uirin g home confine me nt aft er defend ant had already served the maximu m te rm of impr iso nme nt) ; Uni ted States v. Boec ker , 280 F.3d 824, 826 ( 8 th Cir. 2002) (ho ldi ng that upon revoc atio n of sup ervis ed rele ase fol low ing im pr iso nme nt for a Clas s C fel ony, “th e cou r t w a s e n t i tle d to se nten ce Boeck er to up to 21
mo nths i n p r i s o n ( not 24 mo nths [t he st atut ory maxim um] beca use Boeck er had sp ent 3
mo nths in hom e det enti on) , and up to 33 mo nths of sup ervis ed rele ase d [s ic] , mi nus the pr iso n tim e im pos ed, unde r the ter ms of § 3583( e)( 3) and (h) ,” wi thou t mak ing clea r wh ethe r “p ris on tim e” inclu ded hom e det enti on in calc u l a ting sup ervis ed rele ase ); Uni ted States v. Thom as , 135 F.3d 873, 875 (2d Cir. 1998) (ho ldi ng that sup ervis ed rele ase “p res upp os es a per iod of im pr iso nme nt” and that hom e det enti on canno t be de e m e d “im pr iso nme nt” wi thin the
me aning of se nten cing guide lines for the pur pos e of im pos ing sup er v i s e d r eleas e); Uni ted States v. Leap har t , 98 F.3d 41, 43 (2d Cir. 1996) (ho l ding that having mad e the dec isi on to se nten ce the def

enda nt to the maxim um pos sib le ter m of im pr iso nme nt unde r U. S. S. G.


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### 10-40192

opinion with detailed consideration of each. I do note tha t i n c o nstruing the statutory provisions before us, the construction of the Guidelines is not precedent. 6 1 

### V Although we c o n c l u ded in Ferguson that our construction of § 3583 was based on its “plain language,” we also observed that even if the Government’s 6 2 

### “interpretation of § 3583 were as rational as [the defendant’s] interpretation, we may ‘choose the harsher result

. . . only when the legislature has spoken in clear and def i n i te language.’” We therefore held, as an alternate ground for the 6 3 

### decision, t h a t “ [t]he language at issue here does not clearly and definitely provide that a court may combine the term of incarceration and home detention in excess of the maximum term allowed by § 3583(e)(3). Accordingly, we may not choose the harsher result.” 6 4 

### Regardless of whether Fergusoncorrectly applied the rule of lenity, that rule does not apply in t he case before us today. Although the “only as an alternative to incarceration” proviso may be difficult to construe and apply, it does not render either § 3583(e) or § 3583(h) ambiguous.

§ 5B1.4 (b) (20) the magis tra te judge coul d not als o se nten ce him to a per i o d o f h om e conf inem ent) ; Uni ted States v. Adler , 52 F.3d 20, 21 (2d Cir. 1995) (p er cur iam ) (d ecid ing that unde r U. S. S

. G

. §§ 5C2.1 (d) and (e) com mun ity conf inem ent coul d not be sub st itut ed for im pr iso nme nt)

.

See Uni ted States v. Turn er , 305 F.3d 349, 350 (5t h C i r
. 2002) ; Uni ted States v. 6 1 Gu err a , 962 F.2d484 , 487 (5t h Cir

. 1992)

.

Uni ted States v. Ferguso n , 369 F.3d847, 851 (5t h Cir. 2004) (“ [T] he plai n me aning 6 2 of ‘alt erna tive’ lead s us to the conc lus ion that a cour t cou l d n o t i mp os e both a ter m of incar cer atio n (up on revoc atio n of sup ervis ed rele ase ) and sub se quent hom e det enti on dur ing
a reim pos ed ter m of sup ervis ed rele ase that , wh en com bined , excee ds the allow able maxim um incar cer atio n t erm .” ).

Id. at851 -52. 6 3
Id. at852

. 6 4


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### 10-40192

The Supreme Court has admonished that the rule of lenity should not be invoked simply because a statute is not “crystalline.” Th e rule of lenity “is 6 5 

### reserved for cases where, ‘after seizing everything fr o m which aid can be derived, the Court is left with an ambiguous statute.’” A recent Supreme Court decision 6 6 

### is i nstructive. In Barber v. Thomas , the Court was called upon to construe a statute govern i n g g o o d time credit for federal inmates, 18 U.S.C. § 3624(b). 6 7 

### Subsection (b)(1) of that statute used the phrase “term of imprisonment” at least three times. The defendants argued that good time credits must be calculated

6 8 

### “based upon the length of the term of impris o n m ent that the sentencing judge imposes, n o t t he length of time that the prisoner actually serves.” The BOP 6 9 

### construed the statute based upo n time actually served, and the defendants argued that this caused them to lose seven days of good time credit per year of imprisonment. Before this c a se reached the Supreme Court, a number of 7 0


### courts of appeals had struggled with the crediting p r o v i sions in § 3624. The Tenth Circuit concluded that the statute was ambiguous, citing decisions from other circuits that had reached the same conclusion. This court also struggled 7 1

DePie rrev
. Uni ted Sta tes , 131 S. Ct

. 2225, 223 7 ( 2011)

. 6 5
Id. (quo ting Smi th v

. Uni ted Sta tes , 508 U. S. 223 , 239 (199 3))

. 6 6

130 S. Ct

. 2499, 250 2 ( 2010)

. 6 7
See id. (quo ting 18 U. S

. C

. § 3624(b)( 1)) (“ ‘[A] pr iso ner wh o is se rving a ter m of 6 8 im pr iso nme nt of mo re than 1 year .
. . may receive credi t tow ard the servic e of the pr iso ner’ s se nten c e , b e y o n d the tim e se rved , of up to 54 days at the end of each year of the pr iso ner’ s ter m of imp ris onm ent, beginning at the end of th e fir styear of the term

. . . . [C] red it fo r the las t year or por tio n of a year of the ter m of imp ris onm ent sha ll be pr orat ed and cre dit ed wi thin the las t six we ek s of the se nten ce. ’”)

.

Id. at 2503. 6 9
Id. 7 0
Wri ght v. Fed. Burea u of Pri sons , 451 F.3d 1231, 1235- 36 (10t h Cir

. 2006) ( “As f or 7 1 the iss ue at hand, we hold , in acc ord ance wi th near ly every cir cuit cour t to cons ide r the iss ue, that ‘te rm of im pr iso nme nt’ is amb iguous as it is sus cep tibl e to mo re than one inte rp ret atio n. 

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### 10-40192

with interpreting § 3624, although we ultimately c oncluded that the phrase

“ t e r m o f imprisonment” meant different things when read in context and that the statute was unambiguous. 7 2 

### Although numerous circuit courts had found § 3624 to be ambiguous, the Supreme Court held that there was no “grievous ambiguity” and that the rule of lenity did not apply. The Court explained that “the rule of lenity only applies 7 3 

### if, after considering text, structur e , h i s t ory, and purpose, there remains a ‘grievous ambiguity or uncertainty in the statute’

. . . such that the Court must simply ‘guess as to what Congress intended.’” 7 4 

### After considering the structure, histo r y , a nd purposes of the statutes regarding supervised release, and the related structure, history and purposes of statutes regarding probation, we are not left simply to gues s w h a t C o ngress intended regarding home detention. Whatever else Congres s m ay h av e i nt ended by adding the proviso “ only as an alternative to incarceration,” there is no grievous ambiguity regarding the separate treatment of a term of imprisonment and conditions placed on a term of supervised release. * * * * * I concur and join the opinion of the panel.

See Berni tt v. Ma rtinez , 432 F.3d 868, 869 (8t h Cir. 2005) ; Sash , 428 F.3d at 136; Petty v. Stine , 424 F.3d 509, 510 (6t h Cir. 2005) ; Br o wn v. McFadde n , 416 F.3d 1271, 1272- 73 (11t h Cir. 2005) ; Yi , 412 F.3dat533 ; O’ Do nal d v. Johns , 402 F.3d172, 174 (3dCir. 2005) ; Perez- Ol iv o , 394 F.3d at 52; Whi te , 390 F.3d at 1002- 03; Pach eco -Ca ma cho v. Ho od , 272 F.3d 1266, 1269- 70 (9t h Cir. 2001) ; but see Mo rel and v. Fed. Burea u of Pri sons , 431 F.3d 180, 186 (5t h Cir. 2005) (ho ldi ng that § 3624(b)( 1) unam biguous ly dir ect s good tim e cre dit s to be calc ulate d at the end of eachyearof

t im e s erved). ”)

. Mo rel and v. Fe d. Burea u of Pri sons , 431 F.3d180 , 186, 189 ( 5th Cir. 200 5). 7 2
Barb er , 130 S. Ct

. at 2509. 7 3
Id. at 2508- 2509. 7 4


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