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 for 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 Wisconsin in

September 1989 for conspiracy to possess

with intent to distribute narcotics. He was

detained in federal custody at the county 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.

Themagistrate 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: Conditional

Release,” states that Nagib “shall be released

on his own recognizance subject to the

following conditions,” including that the U.S.

Marshal must transport Nagib to Forest

Hospital and retri eve him for court

appearances. The order refers to Nagib’s

“‘voluntary’ admission” to Forest Hospitaland

states that he “is ordered to remain in the

program ofsaid Forrest [sic] Hospital until he

is discharged or until the further order of this

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

Marshal is directed to be present . . . and to

 

* 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.
2

deliver the body of defendant Nagib as

directed by the court.”

More than four months after he entered

Forest Hospital, Nagib, on March 9, 1990,

was convicted of conspiracy with intent to

deliver narcotics, an offense with a statutory

minimum term of incarceration. Nonetheless,

on March 14, the district court granted

Nagib’s motion to continue his treatment at

Forest Hospital pending sentencing. 

More than five months later, on

September 28, Nagib was sentenced to 235

months’ imprisonment. Again, the court

ordered that he be returned to Forest Hospital

pending classification by the Bureau of

Prisons. The court eventually ordered Nagib’s

release from Forest Hospital, and, on

November 20, 1990, he wastaken into federal

custody and transported to the Federal

Medical Center in Rochester, Minnesota. In

all, he spent 368 days at Forest Hospital,

almost eight months of which was after his

conviction. 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 initially was credited with that time, but the

government “recomputed” hissentence in July

1994, 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 Forest 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 of

credit for the time he spent at Forest Hospital

violates his due process rights and that the

retroactive application of Reno v. Koray,

515 U.S. 50 (1995), violatestheConstitution’s

prohibition of ex post facto laws.2 The district

court referred the case to a magistrate judge,

who issued a report and recommendation on

February 22, 1999. The district court adopted

the magistrate judge’sreport 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 effective in 1987, a

defendant is awarded credit for any time spent

in “official detention.”3 The Bureau of Prisons

 

1 The following conversation occurred at the

sentencing hearing:

MR. ZIEVERS [Nagib’s counsel]: Your

Honor, would there be—another

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], it 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 like in the

formal judgment and commitment

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, but he does argue that the fact that the

decision came after his bail hearings supports his

contention that his right to due process has been

infringed.

 

3 Before 1987, a defendant was entitled to

“credit toward service of his sentence for any days

spent in custody in connection with the offense or

acts for which the sentence was imposed.”

18 U.S.C. § 3568 (1982) (repealed 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 time in official

detention.

Bureau of Prisons Program Statement

5880.28(c) (internal policy statement). 

In Koray, 515 U.S. at 64, the Court

approved 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 forecloses any argument that

Nagib's time at Forest Hospital 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 was either misinformed

or uninformed regarding the consequences of

his bail election 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 considered a defendant

who was released to a Volunteers of America

community treatment center pending sentencing for

money laundering, 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 government

agent. See 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 [theBureau’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 such a release, stating that

“[t]o 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,” but that “[t]he 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’

(continued...)

(...continued)

order.” Id. at 64.
4

I write separately to point out that

Koray has not argued before us that he

did not 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.

The 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. Rule Crim. Proc. 11 (setting

out information a court is to convey to

assure that a defendant who pleads

guilty understands the consequences of

the plea).

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

concurring). 

Nagib argued to the district 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 sentencing hearing

regarding sentencing credit led him to believe

he would receive credit for the time he spent at

Forest Hospital. He contends that he has a

due process right to clear notice of the

consequences of electing a ‘release’ or

‘detention’ order and that that right was

violated when the district court failed to

inform him, when he initially sought release to

the confined conditions of Forest Hospital,

that he would receive no sentence credit for

his time at the hospital.

III.

A.

In rejecting 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

of home confinement (both before and after

conviction) would be credited against any

subsequent sentence. See id. at 722. The

government later refused to credit the

sentence, and the defendant sought habeas

relief, arguing that his due process rights had

been infringed because he was not informed at

the bail hearing 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 respectfully 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 will

not be credited against a subsequent

sentence and conclude that no such

constitutional requirement exists . . . .

There is no relinquishment of any

significant right when a defendant elects

bail. The defendant accepting the

conditions of bail is simply trading jailtype confinement for something less

restrictive. Though [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

the defendant may have to shorten a laterimposed sentence “is too insubstantial 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 findCucciniello'sreasoning 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 protection under the Due Process

Clause. Accordingly, Nagib was not denied

due process when the district court failed to

inform him, at his bail hearing, that elective

confinement at Forest Hospital would not be

credited toward any subsequently imposed

sentence. He is therefore not entitled to
5

sentence credit for the time spent at Forest

Hospital prior to his conviction.

B.

After a defendant is convicted of a crime

for which there is a mandatory minimum

sentence, a future sentence is no longer

“entirely speculative,” and Cucciniello's

reasoning no longer applies. We must thus

determine whether Nagib had a due process

right to be informed, at the time of conviction,

that his post-conviction tenure at Forest

Hospitalwould not count toward hissentence.

We conclude that he did not have such a

constitutional right.

To determine what procedures are required

by due process, we balance private versus

government interests. 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 electing 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 on courts, which already must

provide a host oftechnicalprotections, 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 at Forest Hospital would not count

toward his sentence. He is thus not entitled to

credit for all the time he spent at Forest

Hospital after his conviction.

C.

But 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 also notes that the court affirmatively

misinformed himat hissentencing hearing that

he would receive such credit. He claims that

the court's misrepresentation violated hisright

to due process and that he should thus get

sentence credit for his time at Forest Hospital.

We agree that the Due Process Clause

guarantees a defendant's right not to be

affirmatively misinformed of the sentencing

implications of his decision to elect unofficial

detention. “Litigants need to be able to trust

the oral pronouncements of district court

judges,” United States v. Buchanan, 59 F.3d

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

district courts to refrain from providing

misinformation, unlike affirmatively requiring

them to provide information, does not impose

a significant burden. Accordingly, Nagib's due

process rights were violated when the court

misinformed him that he would 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 stay at the hospital.

He thus did not rely on this misstatement in

 

5

In Buchanan, a defendant entered into a plea

agreement 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 were made. The Ninth

Circuit held the plea waiver unenforceable because

the district court's clear statements trumped the

waiver language in thewritten agreement in light of

the government's failure to object, and because

“[l]itigants need to be able to trust the oral

pronouncements of district court judges.” Id. 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 (5thCir. 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 spent in Forest Hospital before the

misrepresentation. Instead, he is entitled to

credit for the fifty-two days he spent in Forest

Hospital after the court told him he would

receive sentence credit. 

Nagib elected to return to Forest Hospital

while he waited for the Bureau of Prisons to

take him into custody, and his decision to do

so was surely influenced by the

misrepresentation regarding sentence credit.

Fundamental fairness thus dictates that he

receive credit for the fifty-two days he spent at

Forest Hospital after his sentencing hearing.

We therefore REVERSE the judgment that

Nagib is entitled to no credit for his time at

Forest Hospital and RENDER a judgment

granting him fifty-two days ofsentence credit.