## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 99-40450

_______________



### KAREEM A. NAGIB,

Petitioner-Appellant,

VERSUS



### N.L. CONNER, EDWARD CROSLEY,

and

UNITED STATES BUREAU OF PRISONS,

Respondents-Appellees.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

(5:97-CV-252)

_________________________

August 13, 1999

Before SMITH, WIENER, and

BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge: *

Kareem Nagib appeals the denial of his

petition fo r writ of habeas corpus and

declaratory judgment. Finding him entitled to

some sentence credit for time spent in

unofficial detention, we REVERSE and

RENDER judgment granting a sentence credit

of fifty-two days.

I.

Police arrested Nagib in Wi sco nsin in

September 19 89 for conspiracy to possess

with intent to distribute narcotics. He was

detained in federal custody at the cou nt y jail. At a detention hearing in late September 1989,

he requested release on bond to Forest

Hospital, a

private health-care facility, for

treatment of drug addiction and depression.

The magistrate judge requested that the federal

probation office investigate whether the

proposed facility was a proper and secure

facility for Nagib pending trial, and on

November 1, 1989, the magistrate judge

ordered Nagib’s release to Forest Hospital.

The order, entitled “Order: Conditio n al

Release,” states that Nagi b “shall be released

on his own recognizance subject to the

following conditions,” including that the U.S.

Marshal must transport Nag ib to Forest

Hospital and retri eve hi m for court

appearances. The order refers to Nagib’s

“‘voluntary’ admission” to Forest Hospital and

states that he “i s o rdered to remain in the

program of said Forrest [sic] Hospital until he

is discharged or until the further order of this

court” and that if h e is discharged, “the U.S.

Marshal is directed to b e present . . . and to * Pursuant to 5 TH C IR. R. 47.5, the c ourt has

determined that this opinion should not be

p ublished and is not precedent except under th e

limited circumstances set forth in 5 TH C IR

. R.

47.5.4.2

deliver the body of defendan t Nagib as

directed by the court.”

More than four months afte r he entered

Forest Hospital, Nagib, on March 9, 1990,

was convicted of conspiracy with intent to

deliver narcotic s, an offense with a statutory

minimum term of incarceration. Nonetheless,

on March 14, the distr i ct court granted

Nagib’s motion to continue his treatment at Forest Hospital pending sentencing.

More than five months later , on Septem ber 28, Nagib was sentenced to 235

months’ im

prisonment. Again, the court

ordered that he be returned to Forest Hospital

pending classification by the Bu r eau of

Prisons. The court eventually ordered Nagib’s

release from Forest Hospital, and, on

November 20, 1990, he was taken into federal

cu stody and transported to the Federal

Medical C e nter in Rochester, Minnesota. In

all, he spent 368 days at Forest Hospital,

almost eight months of

which was after his

con vict ion. He spent 52 days at Forest

Hospital after he was sentenced.

At sentencing, the court told Nagib he

would receive credit toward his sentence for

the time he spent at Forest Hospital. 1 Indeed, he init ially was credited with that time, but the

government “recomputed” his sentence in July

1 994, to remove the credit. He was

resentenced in 1993 to 151 months’

imprisonment under amendments to the

Sentencing Guidelines, resulting in a release

date of August 31, 2000. He contends that his

sentence should be credited with the 368 days

he spent at Fore st Hospital and, accordingly,

that he should be released on August 28, 1999.

Nagib filed this habeas petition under

28 U.S.C. § 2241, arguing that the denial o f

credit for the time he spent at Forest Hospital

violates h is due process rights and that the

retroactive appli cati on of R eno v. Koray

, 515 U.S. 50 (1995), violates the Constitution’s

prohibition of ex post facto laws. 2 The district

court refe rred the case to a magistrate judge,

who issued a report and recommendation on February 22, 1999. The district court adopted

the magistrate judge’s report and denied relief.

II.

Pursuant to 18 U.S.C. § 3585, which was

enacted as part of the Sentencing Reform Act

of 1984 and became eff ect ive in 1987, a

defendant is awarded credit for any time spent

in “official detention.” 3 The Bureau of Prisons

1 The f ollowing conversation occurred at the

sentencing hearing:

MR. ZIEVERS [Na gib’s counsel]: Your

H onor, would there be—anothe r bookkeeping matter, would there be

any entitlement to sentence credit at

this point?

THE COURT: That is automatically given,

Mr. Zievers; so, yes, you will receive it

with or without an order of the court.

MR. ZIEVERS: I’m—obviously if he was

in Racine [jail], i t wouldn’t be a

question; but I don’t want any

confusion. He was in detention housed

at Forest Hospital.

THE COURT: We’ll, if you want to send

my clerk a letter Monday detailing the

(continued...) (...continued)

language that you would l ike in the

formal judgment and c o mmitment

order, I think it’s appropriate since the

defendant has been in effect in custody

since his arrest.

MR. ZIEVERS: Thank you, Your Honor.

2 Nagib does not appeal the dismissal of his

claim regarding the ex post facto application of

Koray

, bu t he does argue that the fact that the

decision came a fter his bail hearings supports his

contention that his right to due process has been

infringed.

3 B efore 1987, a defendant was entitled to

“credit toward service of his sentence for any days

spent in custody in connection with the offense or

a cts for which the sentence was imposed.”

18 U.S.C. § 3568 (1982) (repe aled in 1984)

(continued...)3

issued a program statement in 1992 providing

that

[t]ime spent in a community corrections

center . . . . is not creditable as

presentence time. A condition of bail or

bond which

is ‘highly restrictive,’ and

that includes ‘house arrest,’ ‘electronic

monitoring,’ or ‘home confinement’

. . . is not considered as ti me in official

detention.

Bureau of Prisons Program State ment 5880.28(c) (internal policy statement).

In Koray

, 515 U.S. at 64, the Court

app ro ved the Bureau of Prisons's conclusion

that time spent by a defendant at a community

treatment center while “released” on bail is not

“official detention” under 18 U.S. C. § 3585.

Koray thus fore c loses any argument that

Nagib's time at Forest Hospi t al comprised

“official detention” under 18 U.S.C. § 3585. 4 Precluded from directly attacking the

government’s refusal to credit his sentence, Nagib argues that he wa s either misinformed

or uninformed regarding the consequences of

his bail elect i on and that this lack of

information violated his due process rights.

He bases his argument on Justice Ginsburg's

concurring opinion in Koray

, in which she

explained:

(...continued)

(emphasis added).

4 In Koray

, the Court con sidered a defendant

who was r eleased to a Volunteers of America

community treatment center pending sentencing for

money launderin g

, but whose “release order”

required that he be “confined to the premises” and

was without “authorization to leave for any

reason” unless accompanied by a g overnment

agent. S ee Koray

, 515 U.S. at 52-53. Deferring to

the Bureau of

Prisons's interpretation of “official

detention,” the Court concluded that the defendant

was not entitled to sentencing credit, because “[a]

defendant who is ‘released’ is not in [the Bureau’s]

custody, and he cannot be summarily reassigned to

a different place of confinement unless a judicial

officer revokes his release.” Id. at 63. The Court

rejected the Third Circuit’s construction of official

detention as including su ch a release, stating that

“[t]o determine in each case whether a defendant

‘released ’ on bail was subjected to ‘jail-type

confinemen t ’ would require a fact-intensive inquiry

into the circumstan ces of confinement, an inquiry

bas ed on information in the hands of private

entities not available to the Bureau as a matt e r of

right,” bu t that “[t]he Government’s construction

of § 3585(b), on the other hand, provides both it

and the defendant with cl ear notice of the

c onsequences of a § 3142 ‘release’ or ‘detention’

(continued...) (...continued)

order.” Id. at 64.4

I write separately to po int out that

Koray has not argued bef o re us that he

did no t elect bail intelligently, i.e., with

comprehension that time in the halfway

house, unlike time in jail, would yield no

credit against his eventual sentence.

T he Court thus does not foreclose the

possibility that the fundamental fairness

we describe as due “due process” calls

for notice and a comprehension check.

Cf. Fed. Rul e Crim. Proc. 11 (setting

o ut information a court is to convey t o

assu re that a defendant who pleads

guilty understan d s the consequences of

the plea).

Koray

, 515 U.S. at 65 (Ginsburg, J.,

concurring).

Nagib argued to the distri c t court, and

asserts again on appeal, that at the time of his

bail hearings he could not have known of the

Bureau of Prisons's policy articulated in 1992

and the Koray decision in 1995, and that the

court’s statement at the sente n cing hearing

regarding sentencing credit led him to believe

he would receive credit for the time he spent at

Forest H ospit al. He contends that he has a

due process right to clear notice of the

consequences of electing a ‘release’ or

‘det ent ion’ order and that that right was

vi o lat ed when the district court failed to

inform him, when he init ially sought release to

the con fined conditions of Forest Hospital,

that he would receive no sentence credit for

his time at the hospital.

III.

A.

In rej e cting Nagib’s argument, the district

court relied on Cucciniello v. Keller

, 137 F.3d

721 (2d Cir. 1998). The defendant in that case

had been released on bail, while he was a pretrial detainee, subject to a special condition of

home confinement. The court said nothing at

the bail hearing to indicate whether the period

o f home confinement (both before and aft er conviction) would be credited agai nst any subsequent s entence. S ee id. at 722. The

governme n t later refused to credit the

sentence, and the de fendant sought habeas

relief, arguing that his due process rights had been infringed because he was not informed at

the bail heari ng that he would not receive

credit toward any future sentence. The

defendant specifically invoked Justice

Ginsburg’s concurring opinion in Koray

. See

id. at 724.

Affirming the dismissal of the petition, the

court stated:

We have respectf

ul ly considered the

force of the possibility raised by Justice

Ginsburg that due process might require

notice to a pretrial detainee that release

conditioned on home confinement wi l l

not be credi

t ed against a subsequent

sentence and conclude that no such

constitutiona l requirement exists . . . .

There is no relinquishment of any

significant right when a defendant elects

bail. The defendant accept ing the

conditions of bail is simply trading jailtype confin ement for something less

restrictive. Tho ugh [the defendant]

accepted home detention, this degree of

confinement was not imposed as a

surrender of

prior liberty; it was an

upgrade to less restrictive confinement.

Id. The court determined that any opportunity

th e defendant may have to shorten a laterimposed sentence “is too insub stanti al to be

regarded as a liberty interest protected by the

Due Process Clause” because, at the time the

defendant elects conditional bail, “it is entirely

speculative whether he will be convicted, and,

if so, whether he will be sentenced to prison.”

Id.

We find Cucciniello 's reasoning persuasive,

and we agree that any liberty interest a pretrial detainee has in getting an early start on a

possible future sentence is too insubstantial to

merit prot ect ion under the Due Process

Clause. Accordingly, Nagib was no t denied

due process when the distr i ct court failed to

inform him, at his bail hearing, t hat elective

c o nfinement at Forest Hospital would not be

credited toward any subsequently imposed

sentence. He is therefore not ent itled to5

sentence credit for t he time spent at Forest

Hospital prior to his conviction.

B.

After a defendan t is convicted of a crime

for which th ere is a mandatory minimum

sentence, a futu r e sentence is no longer

“e nt irely speculative,” and C ucciniello 's

reasoning no longer applies. We must thus

determine whether Na gib had a due process

right to be informed, at the time of conviction,

that his post-conviction tenure at For est Hospital would not count toward his sentence.

We conclude that he did not have such a constitutional right.

To determine what procedures are required

by due pro cess, we balance private versus

government inte r ests. See Morrissey v.

Brewer

, 408 U.S. 471, 481 (1972). Nagib

contends that due process requires that a

defendant be informed, when convicted, of the

consequences of el ecting particular

confinement options. The interests at stake

are the defendant's interest in intelligently

electing or declining to elect bail and the

court's interest in avoiding the requirement to spell out for defendants all the implications of

their bail election decisions.

Given the heavy burden such a requirement

would place o n courts, which already must

provide a host of technical protections, and the

fact that defendants could easily ask the court

about sentencing credit (as Nagib finally did at

his sentencing hearing), we do not believe the

Due Process Clause places an affirmative duty

on courts to inform convicts of the sentencing

implications of their decisions regarding bail.

Accordingly, the court did not violate Nagib's

due process rights in failing to inform him,

when he was convicted, that any additional

time a t Forest Hospital would not count

toward his sentence. He is thus not entitled to

credit for all the tim

e he spent at Forest

Hospital after his conviction.

C.

B ut Nagib does not claim merely that the

court violated his due process rights in failing

to inform him that he would not receive

sentence credit for his time at Forest Hospital; he als o notes that the court a ffirmatively

misinformed him at his sentencing hearing that

he would receive such credit. He claims that

the court's misrepresentation violated his right

to due process and that he should thus get

sentence credit for his time at Forest Hospital.

We agree that the Du e Process Clause

guaran t ees a defendant's right not to be

affirmat ively misinformed of t he sentencing

implications of his decisi o n to elect unofficial

detention. “Litigants need t o be able to trust

the oral pronouncements of dist r ict court judges,” Unite d States v. Buchanan , 59 F.3d

914, 918 (9th Cir. 1995), 5 and requiring

district courts t o refrain from providing

mis information, unlike affirmatively requiring

them to provide information, does not impose

a significant burden. Accordingly, Nagib's due

process right s were violated when the court

misinformed him that h e wo uld receive

sentence credit, and he is therefore entitled to

some relief.

Nagib asserts that he should get credit for

his entire tenure (368 days) at Forest Hospital.

The sentencing court's misrepresentation

concerning credit did not occur, however, until

near the end of Nagib's st ay at t he hospital.

He thus did no t rely on this misstatement in

5 In Buchanan , a defendant entered into a plea

agr eement in which he waived the right to appeal

sentencing findings, yet when he appeared in court to enter the plea, the court stated twice that he did

have a right to appeal the findings. 59 F.3d

at 916-17. The government did not object to those

statements when they we re made. The Ninth

Circuit held the plea waiver unenforceable because

the distri ct court's clear statements trumped the

waiver language in the written agreement in light of

the government's failure to object, and because

“[l]i tigants need to be able to trust the oral

pr onouncements of district court judges.” I d. at 918. In the case at hand, the government did not

object to the sentencing court's assertion that Nagib

would receive sentence credit for his time at Forest

Hospital. See also United States v. Amaya , 111

F.3d 386, 387 (5th Cir. 1997) (vacating guilty plea

entered in reliance on false promise that court had

authority sua sponte to depart downward for

substantial assistance).6

electing bail, and he is not entitled to credit for

days s pent in Forest Hospital before the

m isrepresentation. Instead, he is entitled to

credit for the fifty-two days he spent in Forest

Hospital after the court told him he w o uld

receive sentence credit.

Nagib elected to ret urn to Forest Hospi tal

while he waited for the Bureau of Pri sons to

take h im int o custody, and his decision to do

so was surely influenced by the

m isrepresentation regarding sentence credi t

. Fundamental fairne ss thus dictates that he

receive credit for the fifty-two days he spent at

Forest Hospital after his sente ncing hearing.

We therefore REVER SE the judgment that

Nagib is e n titled to no credit for his time at

Forest Ho spital and RENDER a judgment

granting him fifty-two days of sentence credit.