FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SABIL M. MUJAHID,  No. 03-36038

Petitioner-Appellant, D.C. No.

v.  CV-02-01719-GMK/

JMS CHARLES A. DANIELS, Warden,

Respondent-Appellee. OPINION 

Appeal from the United States District Court

for the District of Oregon

Garr M. King, District Judge, Presiding

Argued and Submitted

April 11, 2005—San Francisco, California

Filed June 27, 2005

Before: Robert R. Beezer, Sidney R. Thomas, and

William A. Fletcher, Circuit Judges.

Opinion by Judge Beezer

7657
COUNSEL

Stephen R. Sady, Assistant Federal Public Defender, Portland,

Oregon, for the petitioner-appellant. 

Kenneth C. Bauman and Craig J. Casey, Assistant United

States Attorneys, Portland, Oregon, for the respondentappellee. 

OPINION

BEEZER, Circuit Judge 

Sabil Mujahid appeals the denial of his 28 U.S.C. § 2241

petition for a writ of habeas corpus, challenging the Bureau

of Prisons’ (“BOP” or “Bureau”) interpretation of the maximum good time credit a federal prisoner can receive under 18

U.S.C. § 3624(b). Mujahid asserts that the Bureau’s interpretation, which allows a prisoner serving a ten-year sentence to

earn a maximum of 470 days credit, contradicts the statute’s

stated allowance of 54 days of credit per year. We affirm. 

MUJAHID v. DANIELS 7659
I

The facts relevant to this appeal are not in dispute. In 1995,

the United States District Court for the District of Alaska sentenced Mujahid to ten years imprisonment, plus three years

supervised release, upon his conviction under 18 U.S.C.

§ 922(g)(1) (felon in possession of a firearm). He began his

term in custody on March 21 of that year.

In 2002, while incarcerated at the Federal Correctional

Institution in Sheridan, Oregon (“FCI-Sheridan”), Mujahid

filed this challenge to the Bureau’s interpretation of the good

time statute. Mujahid’s petition, which he filed in the District

of Oregon, named as respondent the warden at FCI-Sheridan.

The magistrate judge reviewing the petition disagreed with

the assertion that the Bureau’s interpretation deprived

Mujahid of good time credit. The district court adopted the

magistrate judge’s Findings and Recommendations (with one

modification not relevant here) and denied Mujahid’s petition

on November 4, 2003. Mujahid timely appealed. 

The government represents that Mujahid began his threeyear term of supervised release on January 6, 2004.1

II

As an initial matter, we determine whether events subsequent to the district court’s denial of Mujahid’s petition

deprive this court of jurisdiction or render this appeal moot.

The government contends that Mujahid’s placement onto

supervised release prevents us from providing any relief. We

disagree. 

1At oral argument, Mujahid’s counsel stated that he believed Mujahid

has since been returned to prison for violating his terms of supervised

release. Our analysis is not contingent on this fact. 

7660 MUJAHID v. DANIELS
A

The government’s first contention, marginally raised in its

briefing and argued at length during oral argument, is that we

lack jurisdiction over this appeal because Mujahid is no longer imprisoned by the named respondent-warden.2

 Established

principles of habeas procedure suggest otherwise. 

[1] When Mujahid filed his petition, he was incarcerated in

Oregon. He filed his petition in district court, in the District

of Oregon. He named as respondent the warden of the institution where he was imprisoned. These steps properly complied

with habeas procedure. See Rumsfeld v. Padilla, 124 S. Ct.

2711, 2720 (2004). Mujahid’s subsequent transfer and placement onto supervised release do not alter this analysis. As the

government recognizes, a habeas petitioner remains in the

custody of the United States while on supervised release.

Matus-Leva v. United States, 287 F.3d 758, 761 (9th Cir.

2002). And as we stated in Francis v. Rison, 894 F.2d 353,

354 (9th Cir. 1990) (internal quotation marks and citations

omitted), “jurisdiction attaches on the initial filing for habeas

corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change.” 

B

The next government challenge asserts mootness. “The burden of demonstrating mootness is a heavy one.” Cantrell v.

2We are unconvinced by the government’s assertion that this argument

cannot be waived. See, e.g., Rumsfeld v. Padilla, 124 S. Ct. 2711, 2717 n.7

(2004) (referring to jurisdiction “in the sense that it is used in the habeas

statute, 28 U.S.C. § 2241(a), and not in the sense of subject-matter jurisdiction of the District Court”); id. at 2728 (Kennedy, J., concurring)

(“Because the immediate-custodian and territorial-jurisdiction rules are

like personal jurisdiction or venue rules, objections to the filing of petitions based on those grounds can be waived by the Government.”); see

also Smith v. Idaho, 392 F.3d 350, 354-56 (9th Cir. 2004). 

MUJAHID v. DANIELS 7661
City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001). The

government has not met that burden. 

[2] An appeal is moot “when, by virtue of an intervening

event, a court of appeals cannot grant any effectual relief

whatever in favor of the appellant.” Calderon v. Moore, 518

U.S. 149, 150 (1996) (per curiam) (citation and internal quotation marks omitted). Failure to satisfy Article III’s case-orcontroversy requirement renders a habeas petition moot.

Spencer v. Kemna, 523 U.S. 1, 7 (1998). “This means that,

throughout the litigation, the plaintiff must have suffered, or

be threatened with, an actual injury traceable to the defendant

and likely to be redressed by a favorable judicial decision.”

Id. (citation and internal quotation marks omitted). 

The government argues that we are unable to provide any

relief to Mujahid because he completed his term of imprisonment and was placed on supervised release. The government

relies on United States v. Johnson, 529 U.S. 53, 54 (2000), to

support its position. We agree that Johnson holds that a prisoner who wrongfully serves excess prison time is not entitled

to an automatic reduction in his term of supervised release. Id.

at 60. But our post-Johnson precedent does not support construing Johnson in the manner advocated by the government.

[3] We addressed this very issue in Gunderson v. Hood,

268 F.3d 1149, 1153 (9th Cir. 2001). Although the petitioner

in Gunderson challenged an agency practice affecting the

length of his sentence, we recognized that the court was

unable to order any reduction in prison time because he would

not be eligible for such relief until his term of imprisonment

expired. We held this fact did not render the petition moot,

however, because the petitioner’s sentence included a term of

supervised release. The “possibility” that the sentencing court

would use its discretion to reduce a term of supervised release

under 18 U.S.C. § 3583(e)(2) was enough to prevent the petition from being moot. Id.; see also United States v. Verdin,

243 F.3d 1174, 1178 (9th Cir. 2001) (holding a defendant on

7662 MUJAHID v. DANIELS
supervised release retained a personal stake in the appeal of

his sentence because, if he prevailed, “he could be resentenced to a shorter period of supervised release”). 

[4] Gunderson controls our mootness inquiry. There “is a

possibility” that Mujahid could receive a reduction in his term

of supervised release under 18 U.S.C. § 3583(e)(2). 253 F.3d

at 1153. Gunderson does not require more. 

The government’s attempt to distinguish Gunderson is

unavailing. The government maintains that the Gunderson

petitioner, unlike Mujahid, sought habeas relief in the same

court in which he was originally sentenced. This supposed

fact allegedly differentiates Gunderson because Mujahid’s

habeas court (in the District of Oregon) has no control over

the decision to modify the supervised release terms, which

rest with the sentencing court (in the District of Alaska). 

We cannot accept this argument. Gunderson, like Mujahid,

followed general habeas procedure in naming as respondent

the warden of the prison where he was incarcerated at the

time of filing his petition. Gunderson, 268 F.3d at 1152-53;

see also Padilla, 124 S. Ct. at 2720. The Gunderson opinion

does not state that the petitioner was seeking habeas relief

before the same court in which he was sentenced, and there

is no indication that its mootness analysis turned on such a

fortuitous occurrence.3

3We note another potential flaw in the government’s argument. Under

even the government’s interpretation of Gunderson, this petition would

not be moot in Mujahid’s sentencing court in the District of Alaska. See

268 F.3d at 1153. The government has not explained why an appellate

court in our position could not order Mujahid’s petition transferred to that

court, if we were so inclined. See, e.g., Gherebi v. Bush, 374 F.3d 727, 739

(9th Cir. 2004) (“exercising jurisdiction” over habeas petition and “transferring the proceedings to the appropriate forum,” citing district court

transfer of venue statutes, 28 U.S.C. §§ 1404, 1406). 

MUJAHID v. DANIELS 7663
C

[5] Mujahid filed his habeas petition in the proper district

court, naming the proper respondent. See Padilla, 124 S. Ct.

at 2718. He remains in “custody” for habeas purposes. MatusLeva, 287 F.3d at 761. His petition asserts an injury due to the

duration of his sentence and seeks relief through a possible

reduction of his term in custody. Gunderson, 268 F.3d at

1153. This appeal is properly before us and is not moot. 

III

We now turn to the merits of Mujahid’s challenge to the

BOP’s interpretation of the federal good time statute, 18

U.S.C. § 3624(b). Mujahid asserts that the BOP’s interpretation erroneously reduces the amount of good time credit available on a ten-year sentence from 540 to 470 days. Although

Mujahid’s reading of the statute is arguably plausible, we

have previously held that the BOP’s contrary interpretation is

reasonable and subject to deference. Pacheco-Camacho v.

Hood, 272 F.3d 1266, 1270 (9th Cir. 2001). This determination is controlling. 

A

[6] At issue in this appeal is the 19954 version of 18 U.S.C.

§ 3624(b)(1), which states in relevant part (emphasis added):

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

(1) A prisoner . . . who is serving a term of imprisonment of more than one year, other than a term of

imprisonment for the duration of the prisoner’s life,

4We quote from the version of this statute in effect in 1995, when

Mujahid was convicted. Both parties agree that this version of the statute

controls for purposes of Mujahid’s appeal. 

7664 MUJAHID v. DANIELS
shall receive credit toward the service of the prisoner’s sentence, beyond the time served, of fifty-four

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, unless the Bureau of Prisons determines that, during that year, the prisoner has not satisfactorily complied with . . . institutional

disciplinary regulations. . . . The Bureau’s determination [of satisfactory compliance] shall be made

within fifteen days after the end of each year of the

sentence. Credit that has not been earned may not

later be granted. Credit for the last year or portion of

a year of the term of imprisonment shall be prorated

and credited within the last six weeks of the sentence. 

The Bureau and Mujahid disagree on whether “term of

imprisonment” as used in the italicized portion of the statute

means time actually served (BOP interpretation) or sentence

imposed (Mujahid interpretation). The BOP implementing

regulation provides:

Pursuant to 18 U.S.C. 3624(b), as in effect for

offenses committed on or after November 1, 1987

but before April 26, 1996, an inmate earns 54 days

credit toward service of sentence (good conduct time

credit) for each year served. This amount is prorated

when the time served by the inmate for the sentence

during the year is less than a full year. 

28 C.F.R. § 523.20 (emphasis added).5

[7] In accordance with this regulation and the Bureau’s

applicable Program Statement, a prisoner does not “earn”

5Mujahid waived any possible argument about this regulation’s applicability to Mujahid’s sentence by not raising the issue in his briefing. See

United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005). 

MUJAHID v. DANIELS 7665
good time credit until after serving that time. See Federal

Bureau of Prisons Program Statement 5880.28 (Feb. 21,

1992). To earn 54 days of credit, a prisoner must first complete 365 days of incarceration. The BOP prorates awards

during the last year that a prisoner is incarcerated, awarding

0.148 days credit [54/365 = 0.148] per day actually served

that year. See Pacheco-Camacho, 272 F.3d at 1267-1268. 

Under these calculations, Mujahid accumulated 432 days of

credit over eight years [(54 days/year) x (8 years) = 432].

Because Mujahid had enough credit to qualify for release during his ninth year in prison, the BOP prorated the amount of

credit he could earn that partial year, awarding 38 days.

Mujahid received no credit for the tenth year of his sentence,

when he was not in prison. 

Mujahid, in contrast, reads this statute as awarding good

time credit based on the sentence imposed. Using the straightforward calculation of 54 days per year multiplied by ten

years, Mujahid argues that he was entitled to 540 days of

credit. To avoid awarding credit for time not served, Mujahid

essentially starts counting toward the next “year” of imprisonment every 311 days.6

The end result is that, over a ten-year sentence, Mujahid’s

interpretation enables a prisoner to earn 70 more days of

credit than allowed by the BOP. 

B

This dispute turns on whether we accept the BOP’s inter6As Mujahid calculates the good time credit, the “year of the prisoner’s

term of imprisonment” ends once the number of days served plus the good

time credit for that year equals 365. In other words, one year ends after

approximately 311 days (365-54); two years after 622 days [(365 x 2) -

(54 x 2)], and ten years after 3,112 days [(365 x 10) - (54 x 10)] (Leap

years excluded). 

7666 MUJAHID v. DANIELS
pretation of the phrase “term of imprisonment” to mean “time

served.” “Because this case involves an administrative agency’s construction of a statute that it administers, our analysis

is governed by Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984).” Food and Drug

Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

132 (2000); accord Pacheco-Camacho, 272 F.3d at 1268.

Under the Chevron framework, a reviewing court first determines if “ ‘Congress has directly spoken to the precise question at issue,’ in such a way that ‘the intent of Congress is

clear.’ ” Pacheco-Camacho, 272 F.3d at 1268 (quoting Chevron, 467 U.S. at 842). If the statute is silent or ambiguous, the

court decides “whether the agency’s interpretation ‘is based

on a permissible construction of the statute.’ ” Id. (quoting

Chevron, 467 U.S. at 843). 

[8] In Pacheco-Camacho, we held that the BOP’s interpretation of 18 U.S.C. § 3624(b) is entitled to full Chevron deference. At issue in Pacheco-Camacho was the BOP’s policy for

prorating the good time credit of a prisoner sentenced to one

year plus a day imprisonment. We first determined that the

phrase “term of imprisonment” as used in § 3624(b) is ambiguous, observing that to read “term of imprisonment” as “sentence imposed” would be inconsistent with a statute that

contemplates prorating credit for the last year of imprisonment. Id. at 1268. We also concluded that the Bureau’s interpretation was supported by legislative history indicating an

attempt to “strike a balance between simplicity and fairness”

by calculating credits in a consistent manner and prorating

credits to ensure that those who served more time were eligible for more credit. Id. at 1270. We relied on these same reasons to hold that the BOP’s interpretation of “term of

imprisonment” as “time served” was reasonable. Id. at 1271.

[9] Mujahid’s interpretation of § 3624(b) is at odds with

Pacheco-Camacho’s holding that the BOP’s interpretation is

reasonable and subject to deference. We are bound by

Pacheco-Camacho’s holding unless (1) the issue presented

MUJAHID v. DANIELS 7667
here is sufficiently distinguishable or (2) binding authority

casts sufficient doubt on the validity of Pacheco-Camacho’s

analysis to allow us to disregard its reasoning. We are unconvinced on both fronts. 

1

Mujahid’s attempts to distinguish Pacheco-Camacho are

unpersuasive. Mujahid would limit Pacheco-Camacho to

solely addressing the meaning of “term of imprisonment” as

it relates to prorating credits during the last year of a prisoner’s sentence. He asserts that his petition differs because he

challenges the BOP’s calculation of good time credits overall.

But so did Pacheco-Camacho. In fact, Pacheco-Camacho

made the same argument and used the same provision for support. Like Mujahid, Pacheco-Camacho argued that “when the

statute awards fifty-four days ‘at the end of each year of the

prisoner’s term of imprisonment,’ this award should be based

on the sentence imposed, without regard to the time actually

served.” Id. at 1268. Our rejection of Pacheco-Camacho’s

position indicates that our holding was not as limited as

Mujahid contends. 

Mujahid’s assertion that Pacheco-Camacho controls the

meaning of “term of imprisonment” only in the context of

prorating credit is problematic for another reason as well.

Under even this most narrow reading of Pacheco-Camacho,

that decision still holds that the BOP’s interpretation of “term

of imprisonment” in the last sentence of § 3624 as “time

served” is reasonable. See id. at 1270-71. Mujahid does not

explain how, given this precedent, interpreting “term of

imprisonment” differently (i.e., as “sentence imposed”) earlier

in the same statute is any more consistent with rules of intrastatutory interpretation than the interpretation given by the

Bureau. 

7668 MUJAHID v. DANIELS
2

Besides attempting to limit the reach of Pacheco-Camacho,

Mujahid argues that subsequent Supreme Court cases have

undermined Pacheco-Camacho’s “mode of reasoning.”

Mujahid asserts that recent cases suggest that PachecoCamacho erred in not applying the rule of lenity before applying Chevron deference. For one three-judge panel to disregard

prior binding authority, “the relevant court of last resort must

have undercut the theory or reasoning underlying the prior

circuit precedent in such a way that the cases are clearly irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.

2003). Mujahid has not persuaded us that we are faced with

such a situation here.7

[10] Pacheco-Camacho holds that the rule of lenity “does

not prevent an agency from resolving statutory ambiguity

through a valid regulation.” 272 F.3d at 1271. We cited

Supreme Court precedent for support. See Babbitt v. Sweet

Home Chapter of Cmtys. for a Great Oregon, 515 U.S. 687,

704 n.18 (1995) (“We have never suggested that the rule of

lenity should provide the standard for reviewing facial challenges to administrative regulations whenever the governing

statute authorizes criminal enforcement.”). We explained that

our decision comported with the rule’s purpose as well. Specifically, the rule of lenity is designed to “ensure[ ] that the

penal laws will be sufficiently clear, so that individuals do not

accidentally run afoul of them and courts do not impose prohibitions greater than the legislature intended.” PachecoCamacho, 272 F.3d at 1271. Regulations such as the one at

issue here “gives the public sufficient warning to ensure that

7

See also O’Donald v. Johns, 402 F.3d 172, 174 (3d Cir. 2005) (per

curiam) (citing Pacheco-Camacho in rejecting petitioner’s rule of lenity

analysis); Perez-Olivio v. Chavez, 394 F.3d 45, 53 (1st Cir. 2005) (rejecting rule of lenity argument); but cf. Dolfi v. Pontesso, 156 F.3d 696, 700

(6th Cir. 1998) (declining to apply Chevron deference to a Parole Commission interpretation of a different statute). 

MUJAHID v. DANIELS 7669
nobody mistakes the ambit of the law or its penalties.” Id. at

1272. We also noted that the Supreme Court has applied

Chevron deference in construing another BOP-administered

statute affecting prison terms. See id. (citing Lopez v. Davis,

531 U.S. 230, 242 (2001)). 

[11] We cannot say that binding authority has “undercut”

this analysis. By collecting assorted passages from recent

Supreme Court opinions, Mujahid creates an argument that is

tenuous at best and requires us to fill in more blanks than we

are willing to do. In particular, neither Leocal v. Ashcroft, 125

S. Ct. 377 (2004), nor Clark v. Martinez, 125 S. Ct. 716

(2005), address the relationship of Chevron deference to the

rule of lenity. Rather, both cases reference the rule of lenity

in dicta concerning unrelated points. See Leocal, 125 S. Ct. at

384 n.8 (stating that “consistency” requires applying the rule

of lenity to a statute that has both criminal and noncriminal

applications); Clark, 125 S. Ct. at 724 (citing the reference to

the rule of lenity in Leocal and United States v. Thompson/

Center Arms Co., 504 U.S. 505, 517-18 and n.10 (1992) (plurality opinion), in stating that the “lowest common denominator” governs when construing statutory language with more

than one application). 

The language cited in these cases supports that the rule of

lenity can play an important role in statutory construction; it

does not address when the rule of lenity takes priority over

Chevron deference. And, ultimately, it is the answer to this

question that Mujahid must convince us has been provided, or

most assuredly would be provided, by the Supreme Court in

a manner “irreconcilable” with Pacheco-Camacho. The cases

relied on by Mujahid do not do so. 

IV

Pacheco-Camacho established that the phrase “term of

imprisonment” in 18 U.S.C. § 3624(b)(1) is ambiguous, that

the BOP’s interpretation was reasonable, and is thus entitled

7670 MUJAHID v. DANIELS
to deference. Mujahid’s position rests on an interpretation of

this statute at odds with binding authority of this court.8

AFFIRMED.

8Mujahid fashioned his initial filing before this panel as both an opening

brief and a petition for initial hearing en banc, should we conclude that

Pacheco-Camacho is controlling. Our denial of Mujahid’s petition on the

present record is without prejudice to review on a timely basis. 

MUJAHID v. DANIELS 7671