     Case: 10-40192     Document: 00511999133         Page: 1     Date Filed: 09/25/2012




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                               Fifth Circuit

                                                                            FILED
                                                                        September 25, 2012
                                       No. 10-40192                        Lyle W. Cayce
                                                                                Clerk

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.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                    No. 10-40192
      In June 2008, Polydore’s supervised release was revoked and he was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      In January 2010, Polydore’s supervised release was revoked a second time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-month supervised 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).1 However, this additional term of supervised release may not
exceed the maximum term of supervised release for the original offense less any

      1
       18 U.S.C. § 3583(h) provides:
             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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                                No. 10-40192
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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                                       No. 10-40192
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

       2
         We note that two other circuits have indicated agreement with Ferguson. See United
States v. Marcano, 525 F.3d 72, 73–74 (1st Cir. 2008) (citing Ferguson in support of its holding

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                                       No. 10-40192
       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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                                       No. 10-40192
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.3 However, neither statute makes




       3
         In Ferguson, we used a plain language analysis of the term “alternative” in §
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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                                        No. 10-40192
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


       4
         Notably in Hager, the Fourth Circuit held that home detention is not credited against
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.
       5
         The terms of Polydore’s home detention were as follows:
       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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                                  No. 10-40192
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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                                           10-40192
OWEN, Circuit Judge, concurring.
       I fully join the panel’s opinion. I write separately to address the phrase in
18 U.S.C. § 3583(e)(4) that provides: “except that an order under this paragraph
[permitting imposition of home detention] may be imposed only as an 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,1 construing the “only
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 of imprisonment that may be imposed upon
revocation of supervised release.2 Although the holding in Ferguson does not
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.3 But when considered in

       1
           369 F.3d 847 (5th Cir. 2004).
       2
         Id. at 851 (“[T]he plain meaning of ‘alternative’ leads 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.”).
       3
         See generally Reno v. Koray, 515 U.S. 50, 56 (1995) (examining the argument that the
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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                                           10-40192
context and in conjunction with other statutes enacted at the same time,4 our
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.5 Polydore served his initial prison sentence and began
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.’”).
       4
         See generally id. at 56 (“[I]t is a ‘fundamental principle of statutory construction (and,
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))).
       5
         18 U.S.C. § 3583(b)(2) (“Except as otherwise provided, the authorized terms of
supervised release are . . . for a Class C or D felony, not more than three years . . . .”).

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                                          10-40192
included six months of home detention, as defined in § 3583(e)(4).6 During this
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




       6
          Id. § 3583(e)(4) (providing that upon modification or revocation of supervised release,
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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                                           10-40192
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.7 The first alternative, set

      7
          Id. § 3583(e), which provides:

      (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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                                          10-40192
forth in the first paragraph of § 3583(e), is that a court may “terminate a term
of supervised release and discharge the defendant released at any time after the
expiration of one year of supervised release . . . .”8 The second alternative is set
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 . . . .”9 A court may also “modify, reduce, or enlarge the
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 . . . .”11 The fourth paragraph of § 3583(e) provides that 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 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.
      8
           Id. § 3583(e)(1).
      9
           Id. § 3583(e)(2).
      10
           Id.
      11
           Id. § 3583(e)(3) (emphasis added).
      12
           Id. § 3583(e)(4) (emphasis added).

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                                            10-40192
subsection (3), when a court is given the authority to “revoke a term of
supervised release, and require the defendant to serve in prison all or part of the
term of supervised release authorized by statute for the offense that resulted in
such term of supervised release without credit for time previously served on
postrelease supervision,”13 a court can order a defendant to serve in home
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).14 This construction is problematic for several reasons.
      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


      13
           Id. § 3583(e)(3) (emphasis added).
      14
           Id. § 3583(h), which provides:

      (h) SUPERVISED RELEASE FOLLOWING REVOCATION.—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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                                           10-40192
§ 3563(b) when it revokes supervised release and orders a term of imprisonment
that is to be followed by another term of supervised release.15 Accordingly,
§ 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 . . . .”16 However, there is
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.”17 If Congress
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


      15
           See Johnson v. United States, 529 U.S. 694, 708 (2000).
      16
           18 U.S.C. § 3563(b)(10); id. § 3583(d).
      17
           Id. § 3583(e)(4).

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                                          10-40192
incarceration while in the custody of the BOP, which is authorized as a condition
of probation in § 3563(b)(10) and as a condition of supervised release in § 3583(d)
through its reference to § 3563(b)(10).18              The “only as an alternative to
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.19 Congress has defined
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 . . . .”21 A defendant who is subject to home detention
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



       18
          But see United States v. Ferguson, 369 F.3d 847, 851 (5th Cir. 2004) (rejecting the
Government’s argument that “alternative to incarceration” proviso in the home detention
provisions “refers to intermittent detention and community correction facilities”).
       19
           But see Barber v. Thomas, 130 S. Ct. 2499, 2506 (2010) (recognizing that the
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)).
       20
            18 U.S.C. § 3585(a).
       21
            Id. § 3621(a).

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release.22 The issue in Koray was whether a defendant was entitled to credit for
time spent confined to a community treatment center while he was released on
bail after he pleaded guilty but before he was sentenced.23 The Court construed
§ 3585(b), which governs credit given for time spent in “official detention prior
to the date the sentence commences,”24 and held that “official detention” as used
in that section does not include time spent in a treatment center while released
on bail.25 Although the Supreme Court was not presented with the issue that we
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 subject to 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.”27 The Supreme Court
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


      22
           515 U.S. 50, 59 (1995).
      23
           Id. at 53-54.
      24
           18 U.S.C. § 3585(b).
      25
           Koray, 515 U.S. at 52.
      26
           Id. at 59 (citations omitted).
      27
           Id. at 62.

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identity of the custodian was “an important distinction.”28 The Court reasoned
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,30 and the Third
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.”31 The
Supreme Court rejected the Third Circuit’s “jail-type confinement” test.32 The
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,”33 the Third Circuit’s attempt to equalize treatment of
“detained” inmates and “released” defendants had “its own grave difficulties.”34


       28
          Id. at 62-63; see also id. at 63 ( “Unlike defendants ‘released’ on bail, defendants who
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))).
       29
            Id. at 63.
       30
            Reno v. Koray, 515 U.S. 50, 53 (1995).
       31
            Koray v. Sizer, 21 F.3d 558, 567 (3d Cir. 1994), rev’d, 515 U.S. 50 (1995).
       32
            Koray, 515 U.S. at 64.
       33
            Id.
       34
           Id. (“It may seem unwise policy to treat defendants differently for purposes of
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.36 Home
detention is not the equivalent of official detention by the BOP37 or a “term of
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.”).
       35
            Id.
       36
            See 18 U.S.C. § 3583(e).
       37
          See United States v. Zackular, 945 F.2d 423, 425 (1st Cir. 1991) (construing § 3585
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.38         Each of the home detention provisions added in 1988
contained the phrase “except that a condition under this paragraph may be
imposed only as an alternative to incarceration.”39 The title of the section of the
Anti-Drug Abuse Act that added the home detention provisions was “HOUSE
PROBATION AS A CONDITION FOR PROBATION, PAROLE, OR
SUPERVISED RELEASE.”40 While the title of the section is certainly not
dispositive, the description of the 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.41 That prohibition has remained unchanged.42 If home detention
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.”43 The “except that a condition under

       38
            Pub. L. No. 100-690, § 7305, 102 Stat. 4181, 4465-66 (1988).
       39
            Id.
       40
            Id. at 4465.
       41
            18 U.S.C. § 3561(a)(3) (1988) (current version at 18 U.S.C. § 3561(a)(3) (2006)).
       42
          18 U.S.C. § 3561(a)(3) (“A defendant who has been found guilty of an offense may be
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.”).
       43
            Id. § 3563(b)(19).

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                                         10-40192
this paragraph may be imposed only as an alternative to incarceration” proviso
in the home detention provision could not convert home detention as a condition
of probation into a 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.”44 The Court explained that “parole . . . by
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.45 It would be unreasonable to
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




      44
           Johnson v. United States, 529 U.S. 694, 710-11 (2000).
      45
          See Barber v. Thomas, 130 S. Ct. 2499, 2506 (2010) (“[W]e have recognized a
‘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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                                          10-40192
       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.46 We held in that case that in calculating
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).”48 The opinion in Ferguson observed that under
§ 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).”49           The court reviewed the list of conditions
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,”50 “work in community service as directed by the court”51 or that a
defendant “reside in a specified place or area, or refrain from residing in a
specified place or area.”52           None of these conditions, however, has the
“alternative to incarceration” proviso, and we found that to be compelling. After


       46
            369 F.3d 847 (5th Cir. 2004) (per curiam).
       47
           Id. at 850-51; see also 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) . . . .”).
       48
            Ferguson, 396 F.3d at 851.
       49
            18 U.S.C. § 3583(d).
       50
            Id. § 3563(b)(11).
       51
            Id. § 3563(b)(12).
       52
            Id. § 3563(b)(13).

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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.”53 We considered “the language and interplay of § 3583 and
§ 3563” and held that “[t]he statutory framework governing revocation and
punishment for violating a condition of supervised release—§ 3583(e)—alone
implies that incarceration 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.




       53
            United States v. Ferguson, 369 F.3d 847, 851 (5th Cir. 2004).
       54
            Id. at 850.
       55
            Id. at 850-51.
       56
          Id. at 851 (“Sections 3583(e)(3) and (e)(4) make clear that incarceration and home
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.57 That court held that time served in home detention is not
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 provisions59 that are
similar, but not identical, to or as extensive as federal statutes regarding home
detention. I cite these decisions only in the margin60 and will not lengthen this


       57
            See United States v. Hager, 288 F.3d 136 (4th Cir. 2002).
       58
            Id. at 137-39.
       59
         U.S.S.G. §§ 5B1.3(e)(2) (“Home detention may be imposed as a condition of probation
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.”).
       60
            United States v. Marcano, 525 F.3d 72, 73-74 (1st Cir. 2008) (per curiam) (holding
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 that the 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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                                         10-40192
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,”62 we also observed that even if the Government’s
“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.’”63 We therefore held, as an alternate ground for the
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).
       61
         See United States v. Turner, 305 F.3d 349, 350 (5th Cir. 2002); United States v.
Guerra, 962 F.2d 484, 487 (5th Cir. 1992).
       62
          United States v. Ferguson, 369 F.3d 847, 851 (5th Cir. 2004) (“[T]he plain meaning
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.”).
       63
            Id. at 851-52.
       64
            Id. at 852.

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                                            10-40192
       The Supreme Court has admonished that the rule of lenity should not be
invoked simply because a statute is not “crystalline.”65 The rule of lenity “is
reserved for cases where, ‘after seizing everything from which aid can be derived,
the Court is left with an ambiguous statute.’”66 A recent Supreme Court decision
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.68 The defendants argued that good time credits must be calculated
“based upon the length of the term of imprisonment that the sentencing judge
imposes, not the length of time that the prisoner actually serves.”69 The BOP
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.70 Before this case reached the Supreme Court, a number of
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.71 This court also struggled


       65
            DePierre v. United States, 131 S. Ct. 2225, 2237 (2011).
       66
            Id. (quoting Smith v. United States, 508 U.S. 223, 239 (1993)).
       67
            130 S. Ct. 2499, 2502 (2010).
       68
           See id. (quoting 18 U.S.C. § 3624(b)(1)) (“‘[A] prisoner who is serving a term of
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.’”).
       69
            Id. at 2503.
       70
            Id.
       71
          Wright v. Fed. Bureau of Prisons, 451 F.3d 1231, 1235-36 (10th Cir. 2006) (“As for
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.73 The Court explained that “the rule of lenity only applies
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).”).
       72
            Moreland v. Fed. Bureau of Prisons, 431 F.3d 180, 186, 189 (5th Cir. 2005).
       73
            Barber, 130 S. Ct. at 2509.
       74
            Id. at 2508-2509.

                                               27
