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 guilty 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 restitution and three years of supervised release. Polydore completed his

term of imprisonment and began serving his term of supervised release on

September 6, 2006.

United States Court of Appeals

Fifth Circuit

F I L E D

September 25, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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In June 2008, Polydore’s supervised release was revoked and he was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In January 2010, Polydore’s supervised release was revoked a second time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 supervised release

imposed following his first revocation. This second revocation is the subject of

Polydore’s instant appeal. At his second revocation hearing, Polydore was

sentenced to six months imprisonment and 29 months of supervised release. On

July 30, 2010, Polydore was released from prison, but his case is not moot

because he is still serving his 29-month term of supervised release. United States

v. Larez-Meraz, 452 F.3d 352, 355 (5th Cir. 2006).

Polydore challenges the 29-monthsupervised release term imposed as part

of his current revocation sentence, contending 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 term of

supervised release that may be imposed as part of his second revocation

sentence. Under 18 U.S.C. § 3583(h), following the revocation of supervised

release and the imposition of a term of imprisonment, a district 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. § 3583(h) provides: 1

Supervised release following revocation. – When a term of supervised

released is revoked and the defendant is required to serve a term of

imprisonment, the court may include a requirement that the defendant be

placed on a term of supervised release after imprisonment. The length of such

a term of supervised release shall not exceed the term of supervised release

authorized by statute for the offense that resulted in the original term of

supervised release, less any term of imprisonment that was imposed upon

revocation of supervised release. 

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

was imposed following 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 reviews de novo whether a defendant received a sentence in

excess of the statutory maximum. 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 quotation 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 makes 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 Class D

felony is 36 months. See 18 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 day imprisonment

following the June 2008 revocation of his supervised release. The government

contends that the district court correctly applied the statute and our caselaw

holding that only the 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 maximum available term of supervised release. 

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Thus, the imposition of a 29-month term 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 supervised 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

purposes of calculating the maximum authorized term of supervised release,

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 release, 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 revocation 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 imposed a term of 13 months of

supervised release, the first six months 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 only as an alternative to incarceration. Id. at

849–51; see 18 U.S.C. § 3563(b)(19).2

We note that two other circuits have indicated agreement with Ferguson. See United 2

States v. Marcano, 525 F.3d 72, 73–74 (1st Cir. 2008) (citing Ferguson in support of its holding

4

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Our court in Ferguson, however, did not address the precise question

raised by the instant case: whether a previously imposed term of home detention

is a term of imprisonment for purposes of determining the maximum term of

supervised release that may be imposed following a subsequent revocation. 

Ferguson held that home detention may be credited against the maximum term

of imprisonment that may be imposed following the revocation of supervised

release. 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 supervised release that may be

imposed upon revocation. Plain meaning analysis, the same analysis 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 on supervised

release: “The length of . . . supervised release shall not exceed the term of

supervised release authorized by statute for the offense that resulted in the

original term of supervised release, less any term of imprisonment that was

of no plain error because combined term of incarceration and home detention were less than

statutory maximum); United States v. Boecker, 280 F.3d 824, 826 (8th Cir. 2002) (holding that

the lower court "was entitled to sentence Boecker to up to 21 months in prison (not [the

maximum] 24 month [under § 3583(e)(3)] because Boecker had spent 3 months in home

detention)"). However, the Third and Fourth Circuits have indicated disagreement with

Ferguson. See United States v. Williams, 387 F. App'x 282 (3d Cir. 2010) (unpublished) (noting

circuit split and declining to find plain error based on Ferguson holding); United States v.

Hager, 288 F.3d 136, 137–38 (4th Cir. 2002) (holding that, because home detention "is more

properly viewed as a condition of supervised release" rather than a term of incarceration, home

detention is not credited against the maximum term of imprisonment that may be imposed

following the revocation of supervised release).

Polydore points out that the court in Hager did not attack the district court’s

consideration of Hager’s six months of home detention as a term of imprisonment for the

purposes of imposing a maximum term of supervised release under 18 U.S.C. § 3583(h) in his

first revocation sentence. 288 F.3d at 138–39. However, the district court’s treatment of §

3583(h) was not before the court in Hager and therefore the court was not required to reach

that issue. 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 to be implied, 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 no mention 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 contrary

legislative intent. The Second Circuit has held that the 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 release 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 home

detention] may be imposed only as an alternative to incarceration” and § 18

U.S.C. § 3563(b)(19) likewise provides that home detention “may be imposed 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 Ferguson, we used a plain language analysis of the term “alternative” in §

3

3583(e)(4) and § 3563(b)(19) to conclude that a term of incarceration and subsequent home

detention imposed upon revocation of supervised release cannot exceed the allowable

maximum incarceration term. 369 F.3d at 851 (noting that, “Webster’s Third New

International Dictionary defines ‘alternative’ as ‘a proposition or situation offering a choice

between two things wherein if one thing is chosen the other is rejected.’”). 

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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 language

in one section of a statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally 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 term of incarceration.5

Incarceration results in a total loss of liberty. The terms of Polydore’s home

Notably in Hager, the Fourth Circuit held that home detention is not credited against

4

the maximum term of imprisonment that may be imposed following the revocation of

supervised release. Defendant Hager unsuccessfully made an argument very similar to the

one Polydore attempts to make here. Hager argued that because 18 U.S.C. § 3583(e)(4) states

that home detention may be imposed only as an alternative to imprisonment, home detention

is equivalent to prison. Hager, 288 F.3d at 137. The court disagreed and observed, “Congress’

choice of the word ‘alternative’ does not indicate that home confinement and incarceration are

equivalents under the statute . . . . The word alternative simply does not imply that two things

are the same or equivalent.” Id. at 137–38.

 The terms of Polydore’s home detention were as follows:

5

The defendant shall be placed on home detention for a period not to exceed six

(6) months, to commence immediately upon the commencement of supervised

release. During this time, the defendant shall remain at his place of residence

except for medical reasons, two hours per week to attend church, and

appointments with the U.S. Probation Officer. The defendant shall maintain

a telephone at his place of residence without "call forwarding," "a modem",

"Caller I.D.", "call waiting", or portable cordless telephone for the above period. 

At the direction of the probation officer, the defendant shall wear an electronic

monitoring device and follow electronic monitoring procedures specified by the

probation officer. The defendant is to pay the cost associated with his program

of electronic monitoring.

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detention allowed him to be at home, albeit with restrictions and confines, yet

still enjoying the comforts of that goodly home with access to family and friends. 

Polydore was allowed to leave his home for church, visits to the doctor, and

appointments with his probation officer. Polydore’s home detention was not a

term of incarceration.

For the reasons stated above, defendant Polydore’s sentence is

AFFIRMED.

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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 alternative

to incarceration” and to consider in more 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 maximum 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 term ofimprisonmentthat may be imposed upon

revocation of supervised release. Although the holding in Ferguson does not 2

control the present case, its logic supports the conclusion that home detention

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

supervised 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.3d 847 (5th Cir. 2004). 1

 Id. at 851 (“[T]he plain meaning of ‘alternative’ leads to the conclusion that a court

2

could not impose both a term of incarceration (upon revocation of supervised release) and

subsequent home detention during a reimposed term of supervised release that, when

combined, exceeds the allowable maximum incarceration term.”).

See generally Reno v. Koray, 515 U.S. 50, 56 (1995) (examining the argument that the 3

phrase “official detention” in 18 U.S.C. § 3585(b) includes confinement in a community

treatment center while released on bail and observing that “[v]iewing the phrase in isolation,

it may be said that [such a] reading is plausible”); see also id. at 62 (“This contention is a

plausible one if the phrase is read in isolation: respondent was subjected to restrictive

conditions when released on bail, these conditions were imposed by a court order, and his

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context and in conjunction with other statutes enacted at the same time, our

4

decision in Ferguson appears 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 release after 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. Specifically, the question is how time

served subject to home detention, as described in § 3583(e)(4), should be treated

in calculating 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 prison sentence and began 5

serving his initial term of supervised release. He violated the terms of

supervised release, and supervised release was revoked. Upon revocation,

Polydore was sentenced to serve one day in prison to be followed by twenty-nine

months of supervised release. The twenty-nine months of supervised release

sojourn in the community treatment center therefore amounted to ‘official detention.’”).

See generally id. at 56 (“[I]t is a ‘fundamental principle of statutory construction (and,

4

indeed, of language itself) that the meaning of a word cannot be determined in isolation, but

must be drawn from the context in which it is used.’” (quoting Deal v. United States, 508 U.S.

129, 132 (1993))); id. (noting that the Bail Reform Act of 1984 was enacted in the same statute

as the Sentencing Reform Act of 1984 and that “‘[i]t is not uncommon to refer to other, related

legislative enactments when interpreting specialized statutory terms,’ since Congress is

presumed to have ‘legislated with reference to’ those terms” (quoting Gozlon-Peretz v. United

States, 498 U.S. 395, 407-408 (1991))).

18 U.S.C. § 3583(b)(2) (“Except as otherwise provided, the authorized terms of 5

supervised release are . . . for a Class C or D felony, not more than three years . . . .”).

10

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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

detention, 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 supervised release for

this violation of supervised release was twenty-four months. 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 of a term of

imprisonment and that under § 3583(h), the district court was required to

aggregate all the prison terms imposed for the prior revocations of supervised

release and subtract that total from 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 detention is not a “term of imprisonment” within the meaning of

§§ 3583(h) and 3583(a). Second, the phrase “only as an alternative to

incarceration” was added to § 3583(e)(4) at the same time it was added to other

statutes, and it is clear from the phrase’s use in the other statutes that home

Id. § 3583(e)(4) (providing that upon modification or revocation of supervised release,

6

a court may “order the defendant to remain at his place of residence during nonworking hours

and, if the court so directs, to have compliance monitored by telephone or electronic devices,

except that an order under this paragraph may be imposed only as an alternative to

incarceration”).

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detention was not intended 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), which provides: 7

(e) MODIFICATION OF CONDITIONS OR REVOCATION.—The court may, after

considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C),

(a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)—

(1) terminate a term of supervised release and discharge the defendant

released at any time after the expiration of one year of supervised

release, pursuant to the provisions of the Federal Rules of Criminal

Procedure relating to the modification of probation, if it is satisfied that

such action is warranted by the conduct of the defendant released and

the interest of justice;

(2) extend a term of supervised release if less than the maximum

authorized term was previously imposed, and may modify, reduce, or

enlarge the conditions of supervised release, at any time prior to the

expiration or termination of the term of supervised release, pursuant to

the provisions of the Federal Rules of Criminal Procedure relating to the

modification of probation and the provisions applicable to the initial

setting of the terms and conditions of post-release supervision;

(3) 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 previously served on postrelease

supervision, if the court, pursuant to the Federal Rules of Criminal

Procedure applicable to revocation of probation or supervised release,

finds by a preponderance of the evidence that the defendant violated a

condition of supervised release, except that a defendant whose term is

revoked under this paragraph may not be required to serve on any such

revocation more than 5 years in prison if the offense that resulted in the

term of supervised release is a class A felony, more than 3 years in

prison if such offense is a class B felony, more than 2 years in prison if

such offense is a class C or D felony, or more than one year in any other

case; or 

(4) order the defendant to remain at his place of residence during

nonworking hours and, if the court so directs, to have compliance

monitored by telephone or electronic signaling devices, except that an

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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.10

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 by statute for the offense that resulted in such term of

supervised release without credit for time previously served on postrelease

supervision . . . .” The fourth paragraph of § 3583(e) provides that a court may 11

“order the defendant to remain at his place of residence 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.” 

12

Polydore’s argument seems to be that home detention is not an alternative

to modifying or extending supervised release. Under this construction, home

detention is an alternative only to incarceration. This would mean that under

order under this paragraph may be imposed only as an alternative to

incarceration.

 Id. § 3583(e)(1). 8

 Id. § 3583(e)(2). 9

 Id. 10

 Id. § 3583(e)(3) (emphasis added).

11

 Id. § 3583(e)(4) (emphasis added).

12

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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 previously served on

postrelease supervision,” a court can order a defendant to serve in home 13

detention rather than in prison all or part of the maximum amount of time of

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 incarceration 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) of § 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” within the meaning of the crediting provision in

§ 3583(h). This construction is problematic for several reasons. 14

One is that § 3583(d) also authorizes a court to impose any condition upon

supervised release that it may impose as a condition to probation under

§ 3563(b). A court has the same authority to impose the conditions set forth in

 Id. § 3583(e)(3) (emphasis added).

13

 Id. § 3583(h), which provides: 14

(h) SUPERVISED RELEASEFOLLOWINGREVOCATION.—When a term of supervised

release is revoked and the defendant is required to serve a term of

imprisonment, the court may include a requirement that the defendant be

placed on a term of supervised release after imprisonment. The length of such

a term of supervised release shall not exceed the term of supervised release

authorized by statute for the offense that resulted in the original term of

supervised release, less any term of imprisonment that was imposed upon

revocation of supervised release.

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§ 3563(b) when it revokes supervised release and orders a term of imprisonment

that is to be followed by another term of supervised release. Accordingly, 15

§ 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

Prisons during nights, weekends, or other intervals of time, totaling no more

than the lesser of one year or the term of imprisonment authorized for the

offense, during the first year of the term of probation . . . .” However, there is 16

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 17

intended for time spent in 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 release

statutes that permit a court to require intermittent 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 reasonably be construed to mean that

home detention should only be used as an alternative to intermittent

 See Johnson v. United States, 529 U.S. 694, 708 (2000). 15

 18 U.S.C. § 3563(b)(10); id. § 3583(d). 

16

 Id. § 3583(e)(4). 17

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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 reference to § 3563(b)(10). The “only as an alternative to 18

incarceration” phrase also 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 19

when and how a term of imprisonment commences to run. “A sentence to a term

of imprisonment commences on the date the defendant is received in custody

awaiting transportation to, or arrives voluntarily to commence service of

sentence at, the official detention facility at which the sentence is to be served.”20

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 21

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 custody of the BOP while on probation or supervised

But see United States v. Ferguson, 369 F.3d 847, 851 (5th Cir. 2004) (rejecting the 18

Government’s argument that “alternative to incarceration” proviso in the home detention

provisions “refers to intermittent detention and community correction facilities”).

But see Barber v. Thomas, 130 S. Ct. 2499, 2506 (2010) (recognizing that the 19

presumption that a given term is to mean the same thing throughout a statute “is not

absolute” and “yields readily to indications that the same phrase used in different parts of the

same statute means different things, particularly where the phrase is one that speakers can

easily use in different ways without risk of confusion” and concluding that “[t]he phrase ‘term

of imprisonment’ is just such a phrase” as used in 18 U.S.C. § 3624, which pertains to the

calculation of good time credits (citations omitted)).

 18 U.S.C. § 3585(a). 20

 Id. § 3621(a). 21

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release. The issue in Koray was whether a defendant was entitled to credit for 22

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 23

§ 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 24

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 25

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 is not subjectto BOP’s control,

since Congress generally views such a restriction on liberty as part of a sentence

of ‘probation,’ or ‘supervised release,’ see § 3583(d), rather than part of a

sentence of ‘imprisonment.’”26

The defendant in Koray argued 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 therefore that “it [was]

improper to focus on the release/detention dichotomy.” The Supreme Court 27

rejected this argument, recognizing that although “a defendant ‘released’ to a

community treatment center could be subject 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 (1995). 22

 Id. at 53-54. 23

 18 U.S.C. § 3585(b). 24

 Koray, 515 U.S. at 52. 25

 Id. at 59 (citations omitted).

26

 Id. at 62. 27

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identity of the custodian was “an important distinction.” The Court reasoned 28

that “[a] defendant who is ‘released’ is not in BOP’s custody, and he cannot be

summarily reassigned to a different place of confinement unless a judicial officer

revokes his release . . . or modifies the conditions of his release.” 

29

The Supreme Court’s opinion in Koray reflects that the Third Circuit

Court of Appeals had attempted to equalize treatment of defendants confined by

some branch of government in a community treatment center, and the Third 30

Circuit had held that “‘official detention’ for purposes of credit under 18 U.S.C.

§ 3585 includes time spent under conditions of jail-type confinement.” The 31

Supreme Court rejected the Third Circuit’s “jail-type confinement” test. The 32

Court observed that while “[i]t may seem unwise policy to treat defendants

differently for purposes of sentence credit under § 3585(b) when they are

similarly situated in fact,” the Third Circuit’s attempt to equalize treatment of 33

“detained” inmates and “released” defendants had “its own grave difficulties.”34

Id. at 62-63; see also id. at 63 ( “Unlike defendants ‘released’ on bail, defendants who

28

are ‘detained’ or ‘sentenced’ always remain subject to the control of the Bureau.” (emphasis in

original) (citing Randall v. Whelan, 738 F.2d 522, 525 (4th Cir. 1991))).

 Id. at 63. 29

 Reno v. Koray, 515 U.S. 50, 53 (1995). 30

 Koray v. Sizer, 21 F.3d 558, 567 (3d Cir. 1994), rev’d, 515 U.S. 50 (1995). 31

 Koray, 515 U.S. at 64. 32

 Id. 33

Id. (“It may seem unwise policy to treat defendants differently for purposes of 34

sentence credit under § 3585(b) when they are similarly situated in fact—the one is confined

to a community treatment center after having been ‘detained’ and committed to the Bureau’s

custody, while the other is ‘released’ to such a center on bail. But the alternative construction

adopted by the Court of Appeals in this case has its own grave difficulties. To determine in

each case whether a defendant ‘released’ on bail was subjected to ‘jail-type confinement’ would

require a fact-intensive inquiry into the circumstances of confinement, an inquiry based on

information in the hands of private entities not available to the Bureau as a matter of right.

Even were such information more readily available, it seems certain that the phrase ‘jail-type

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The Court instead accepted the Government’s construction of what constituted

“detention,” concluding that this interpretation provided “clear notice of the

consequences of a § 3412 ‘release’ or ‘detention’ order.”35

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 supervised 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

summarily ordered to a different place or manner of confinement by the BOP. 

Only a court may revoke or modify the home detention condition. Home

36

detention is not the equivalent of official detention by the BOP or a “term of 37

imprisonment.”

Polydore’s contention that home confinement should be treated as a “term

of imprisonment” for purposes of the crediting provision 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

confinement’ would remain sufficiently vague and amorphous so that much the same kind of

disparity in treatment for similarly situated defendants would arise. The Government’s

construction of § 3585(b), on the other hand, provides both it and the defendant with clear

notice of the consequences of a § 3142 ‘release’ or ‘detention’ order.”).

 Id. 35

 See 18 U.S.C. § 3583(e). 36

 See United States v. Zackular, 945 F.2d 423, 425 (1st Cir. 1991) (construing § 3585 37

and holding that “[w]e do not believe that the ‘official detention’ requirement of section 3585

can be fulfilled by home confinement. While a defendant’s movement may be severely

curtailed by the conditions of his home confinement, it cannot seriously be doubted that

confinement to the comfort of one’s own home is not the functional equivalent of incarceration

in either a practical or a psychological sense.”).

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home detention to be treated the same as time spent serving a term of

imprisonment. The Anti-Drug Abuse Act of 1988 added virtually identical home

detention provisions to the then-existing probation, parole, and supervised

release statutes. Each of the home detention provisions added in 1988 38

contained the phrase “except that a condition under this paragraph may be

imposed only as an alternative to incarceration.” The title of the section of the 39

Anti-Drug Abuse Act that added the home detention provisions was “HOUSE

PROBATION AS A CONDITION FOR PROBATION, PAROLE, OR

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

dispositive, the description ofthe home detention 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” phrase 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 41 42

were the same as “a term of imprisonment,” a sentence of probation including

home detention as 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 43

 Pub. L. No. 100-690, § 7305, 102 Stat. 4181, 4465-66 (1988). 

38

 Id. 39

 Id. at 4465. 40

 18 U.S.C. § 3561(a)(3) (1988) (current version at 18 U.S.C. § 3561(a)(3) (2006)).

41

18 U.S.C. § 3561(a)(3) (“A defendant who has been found guilty of an offense may be 42

sentenced to a term of probation unless . . . the defendant is sentenced at the same time to a

term of imprisonment for the same or a different offense that is not a petty offense.”).

 Id. § 3563(b)(19). 43

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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 term of imprisonment 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 supervised release.” The Court explained that “parole . . . by 44

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

more than once within an enactment or a section of an enactment, the phrase

has the same meaning throughout the provision. It would be unreasonable to 45

conclude that in adding home detention provisions to the probation and parole

statutes, Congress intended the home detention provisions 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 provisions governing supervised release that

Congress intended home detention to be the equivalent of a term of

imprisonment rather than a condition of supervised release.

IV 

 Johnson v. United States, 529 U.S. 694, 710-11 (2000).

44

See Barber v. Thomas, 130 S. Ct. 2499, 2506 (2010) (“[W]e have recognized a

45

‘presumption that a given term is used to mean the same thing throughout a statute.’”)

(quoting Brown v. Gardner, 513 U.S. 115, 118 (1994)).

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The phrase “except that an order under this paragraph may be imposed

only as an alternative to incarceration” was the principal basis for this court’s

holding in United States v. Ferguson. We held in that case that in calculating 46

the maximum time a defendant may be imprisoned following revocation of

supervised release, home detention must be counted as time incarcerated. 

47

The 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 in Ferguson observed that under 48

§ 3583(d), in imposing conditions of supervised release as part of a sentence, a

court may impose “any condition set forth as a discretionary condition of

probation in section 3563(b).” The court reviewed the list of conditions 49

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 or part of the term of

probation,” “work in community service as directed by the court” or that a

50 51

defendant “reside in a specified place or area, or refrain from residing in a

specified place or area.” None of these conditions, however, has the 52

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

 369 F.3d 847 (5th Cir. 2004) (per curiam). 46

Id. at 850-51; see also United States v. Boecker, 280 F.3d 824, 826 (8th Cir. 2002) 47

(holding that upon revocation of supervised release following imprisonment for a Class C

felony, “the court was entitled to sentence Boecker to up to 21 months in prison (not 24 months

[the statutory maximum] because Boecker had spent 3 months in home detention) . . . .”).

 Ferguson, 396 F.3d at 851.

48

 18 U.S.C. § 3583(d).

49

 Id. § 3563(b)(11). 50

 Id. § 3563(b)(12). 51

 Id. § 3563(b)(13). 52

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examining the almost identical home 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 53

§ 3563” and held that “[t]he statutory framework governing revocation and

punishment for violating a condition of supervised release—§ 3583(e)—alone

implies thatincarceration and home detention are alternative punishments that

may not combine in excess of the maximum statutory term of incarceration.”54

We observed in Ferguson that an option open to a sentencing court that revokes

supervised release is to “order an incarceration term less than the maximum

allowable term and reimpose a term of supervised release under § 3583(h).”55

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

a partial sentence of incarceration combined with a period of home detention

could not exceed the maximum term of incarceration.56

For the reasons discussed earlier regarding the meaning of the phrase

“term of imprisonment” and because of the history of the “only as an alternative

to incarceration” phrase, I am compelled to conclude that our reasoning in

Ferguson was flawed, and we should not extend the logic of Ferguson to the

present case.

 United States v. Ferguson, 369 F.3d 847, 851 (5th Cir. 2004). 

53

 Id. at 850. 54

 Id. at 850-51. 55

Id. at 851 (“Sections 3583(e)(3) and (e)(4) make clear that incarceration and home

56

detention are mutually exclusive when a court imposes the maximum sentence of

incarceration; a court could not impose the maximum term of incarceration under subsection

(e)(3) and also impose a period of home detention under (e)(4). The government does not

explain why the same limitation would not hold true when a court imposes a partial sentence

of incarceration.”).

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Our decision in Ferguson conflicts with a decision of the Fourth Circuit

Court of Appeals. That court held that time served in home detention is not 57

subtracted from the statutory maximum term of imprisonment imposed for

revocation of supervised release. 

58

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 59

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 60

 See United States v. Hager, 288 F.3d 136 (4th Cir. 2002). 57

 Id. at 137-39. 58

U.S.S.G. §§ 5B1.3(e)(2) (“Home detention may be imposed as a condition of probation 59

but only as a substitute for imprisonment.”); 5F1.2 (“Home detention may be imposed as a

condition of probation or supervised release, but only as a substitute for imprisonment.”).

United States v. Marcano, 525 F.3d 72, 73-74 (1st Cir. 2008) (per curiam) (holding 60

it was not plain error for the district court to impose home confinement as a condition of

supervised release pursuant to § 3563(b)(19) , but noting that while in this instance, the period

of incarceration and home confinement combined did not exceed the maximum incarceration

term,the defendant “made a colorable argument thatthe district court could not have imposed

a period of incarceration and supervised release involving home confinement in excess of

. . . the statutory maximum”); United States v. Kravchuk, 335 F.3d 1147, 1159-60 (10th Cir.

2003) (holding that under U.S.S.G. § 5D1.3(e)(2) “home confinement is only to be substituted

for imprisonment” and thus, the district court erred in failing to provide reasons for increasing

his sentence beyond the guideline maximum in requiring home confinement after defendant

had already served the maximum term of imprisonment); United States v. Boecker, 280 F.3d

824, 826 (8th Cir. 2002) (holding that upon revocation of supervised release following

imprisonment for a Class C felony, “the court was entitled to sentence Boecker to up to 21

months in prison (not 24 months [the statutory maximum] because Boecker had spent 3

months in home detention), and up to 33 months of supervised released [sic], minus the prison

time imposed, under the terms of § 3583(e)(3) and (h),” without making clear whether “prison

time” included home detention in calculating supervised release); United States v. Thomas,

135 F.3d 873, 875 (2d Cir. 1998) (holding that supervised release “presupposes a period of

imprisonment” and that home detention cannot be deemed “imprisonment” within the

meaning of sentencing guidelines for the purpose of imposing supervised release); United

States v. Leaphart, 98 F.3d 41, 43 (2d Cir. 1996) (holding that having made the decision to

sentence the defendant to the maximum possible term of imprisonment under U.S.S.G.

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opinion with detailed consideration of each. I do note that in construing the

statutory provisions before us, the construction of the Guidelines is not

precedent.61

V

Although we concluded in Ferguson that our construction of § 3583 was

based on its “plain language,” we also observed that even if the Government’s 62

“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 definite language.’” We therefore held, as an alternate ground for the 63

decision, that “[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.”64

Regardless of whether Ferguson correctly applied the rule of lenity, that

rule does not apply in the 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 magistrate judge could not also sentence him to a period of home

confinement); United States v. Adler, 52 F.3d 20, 21 (2d Cir. 1995) (per curiam) (deciding that

under U.S.S.G. §§ 5C2.1(d) and (e) community confinement could not be substituted for

imprisonment).

See United States v. Turner, 305 F.3d 349, 350 (5th Cir. 2002); United States v. 61

Guerra, 962 F.2d 484, 487 (5th Cir. 1992).

United States v. Ferguson, 369 F.3d 847, 851 (5th Cir. 2004) (“[T]he plain meaning 62

of ‘alternative’ leads us to the conclusion that a court could not impose both a term of

incarceration (upon revocation of supervised release) and subsequent home detention during

a reimposed term of supervised release that, when combined, exceeds the allowable maximum

incarceration term.”).

 Id. at 851-52. 63

 Id. at 852.

64

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The Supreme Court has admonished that the rule of lenity should not be

invoked simply because a statute is not “crystalline.” The rule of lenity “is 65

reserved for cases where, ‘after seizing everything from which aid can be derived,

the Court is left with an ambiguous statute.’” A recent Supreme Court decision 66

is instructive. In Barber v. Thomas, the Court was called upon to construe a

statute governing good time credit for federal inmates, 18 U.S.C. § 3624(b).67

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 68

“based upon the length of the term of imprisonment that the sentencing judge

imposes, not the length of time that the prisoner actually serves.” The BOP 69

construed the statute based upon 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 case reached the Supreme Court, a number of 70

courts of appeals had struggled with the crediting provisions 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 71

 DePierre v. United States, 131 S. Ct. 2225, 2237 (2011).

65

 Id. (quoting Smith v. United States, 508 U.S. 223, 239 (1993)).

66

 130 S. Ct. 2499, 2502 (2010).

67

See id. (quoting 18 U.S.C. § 3624(b)(1)) (“‘[A] prisoner who is serving a term of 68

imprisonment of more than 1 year . . . may receive credit toward the service of the prisoner’s

sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s

term of imprisonment, beginning at the end of the first year of the term. . . . [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.’”).

 Id. at 2503. 69

 Id. 70

 Wright v. Fed. Bureau of Prisons, 451 F.3d 1231, 1235-36 (10th Cir. 2006) (“As for 71

the issue at hand, we hold, in accordance with nearly every circuit court to consider the issue,

that ‘term of imprisonment’ is ambiguous as it is susceptible to more than one interpretation.

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with interpreting § 3624, although we ultimately concluded that the phrase

“term of imprisonment” meant different things when read in context and that

the statute was unambiguous.72

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 73

if, after considering text, structure, history, and purpose, there remains a

‘grievous ambiguity or uncertainty in the statute’ . . . such that the Court must

simply ‘guess as to what Congress intended.’”74

After considering the structure, history, and purposes of the statutes

regarding supervised release, and the related structure, history and purposes of

statutes regarding probation, we are not left simply to guess what Congress

intended regarding home detention. Whatever else Congress may have intended

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 Bernitt v. Martinez, 432 F.3d 868, 869 (8th Cir. 2005); Sash, 428 F.3d at 136; Petty v. Stine,

424 F.3d 509, 510 (6th Cir. 2005); Brown v. McFadden, 416 F.3d 1271, 1272-73 (11th Cir.

2005); Yi, 412 F.3d at 533; O’Donald v. Johns, 402 F.3d 172, 174 (3d Cir. 2005); Perez-Olivo,

394 F.3d at 52; White, 390 F.3d at 1002-03; Pacheco-Camacho v. Hood, 272 F.3d 1266, 1269-70

(9th Cir. 2001); but see Moreland v. Fed. Bureau of Prisons, 431 F.3d 180, 186 (5th Cir. 2005)

(holding that § 3624(b)(1) unambiguously directs good time credits to be calculated at the end

of each year of time served).”).

 Moreland v. Fed. Bureau of Prisons, 431 F.3d 180, 186, 189 (5th Cir. 2005). 72

 Barber, 130 S. Ct. at 2509. 73

 Id. at 2508-2509. 74

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