                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-6-1994

Edwards v. United States
Precedential or Non-Precedential:

Docket 94-3240




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Recommended Citation
"Edwards v. United States" (1994). 1994 Decisions. Paper 209.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/209


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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                          No. 94-3240



                        RODERICK EDWARDS,
                               Appellant

                                 V.

                    UNITED STATES OF AMERICA



         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                   (D.C. Civil No. 93-00199J)



                    Argued September 26, 1994

                Opinion filed:    December 6, 1994

      Before:   SCIRICA, NYGAARD AND McKEE, Circuit Judges


MARJORIE M. SMITH, ESQUIRE (Argued)
Federal Defender Services
The Legal Aid Society
52 Duane Street
10th Floor, Appeals Unit
New York, NY 10007
Attorney for Appellant

FREDERICK W. THIEMAN, ESQUIRE
United States Attorney
BONNIE R. SCHLUETER, ESQUIRE (Argued)
Assistant United States Attorney
Office of United States Attorney
633 United States Post Office & Courthouse
Pittsburgh, PA 15219
Attorneys for Appellee
OPINION OF THE COURT
NYGAARD, Circuit Judge

          Roderick Edwards appeals the district court's order

denying his petition for habeas corpus relief.   Edwards contends

that the Bureau of Prisons improperly denied him sentence credit

for the time he spent in home confinement on bond pending appeal.

The district court denied his petition.   The sole issue on appeal

is whether his home confinement rises to the penal valence of

"official detention" within the meaning of 18 U.S.C. § 3585(b),

thus entitling him to credit against his sentence.   We conclude

that it does not and will affirm.

                                I.

           Edwards pleaded guilty to distribution and possession

with intent to distribute cocaine base.   The court then placed

Edwards on pre-trial home detention pursuant to 18 U.S.C. §

3142(c) to ensure his appearance at trial and to protect the

public.   For a period of nine to ten months, Edwards was confined

to his uncle's home under electronic monitoring and could not

leave without permission of Pretrial Services.   He was granted a

number of "black out periods" to leave his uncle's apartment and

attend church, church choir practice, attorney and court

appointments.

           Edwards was sentenced to 120 months of imprisonment,

followed by five years supervised release.   At sentencing,

Edwards requested sentence credit for the nine to ten months he

spent in home confinement, which the district court denied.

           The Court of Appeals for the Second Circuit affirmed

and held that sentencing courts have the authority to determine
whether a form of confinement amounts to "official detention" and

whether sentence credit should be granted under § 3585(b).

United States v. Edwards, 960 F.2d 278 (2d Cir. 1992).     Shortly

thereafter, the Supreme Court, in United States v. Wilson, 112

S.Ct 1351 (1992), held that § 3585(b) does not authorize a

district court to award credit at sentencing and that the

Attorney General, through the Bureau of Prisons, is to make the

sentence credit determination for a defendant.     Id. at 1354-1355.

          In light of Wilson, Edwards filed a petition with the

Bureau of Prisons, again raising the issue.     The Bureau denied

Edwards' petition for "prior custody credit."     Having exhausted

his administrative remedies, Edwards, now incarcerated at a

federal corrections facility in Loretto, Pennsylvania, filed a

petition for habeas corpus relief, raising the same denial of

sentence credit issue.

             The district court referred the case to a magistrate

judge, who recommended that the district court find the

restrictions on Edwards' freedom were not equal to official

detention.     The district court rejected Edwards' objections, and

adopted the magistrate judge's report and recommendation, except

a portion of the report recommending that "residential

confinement ... never [be considered] legally onerous enough to

constitute official detention."     Specifically, the district

court's order stated that Edwards had "not been restrained to so

significant a degree that it would constitute 'official

detention' under the statute."
             Edwards again argues that the time he spent in home

confinement constitutes "official detention" as that term is used

in 18 U.S.C. § 3585(b), which provides in pertinent part:
                  Credit for prior custody - A

                  defendant shall be given credit
                  toward the service of a term of
                  imprisonment for any time he has
                  spent in official detention prior
                  to the date the sentence commences
                  (1) as a result of the offense for
                  which the sentence was imposed. . .


The government does not dispute Edwards concerning the conditions

of his home detention, but argues that the decision of the Bureau

of Prisons, which found that Edwards' court-ordered, pre-trial

residential segregation did not amount to "official detention,"

was reasonable under the statute and entitled to substantial

deference.

             Ordinarily, agency decisions are subject to limited

review and can be overturned only if they are arbitrary,

capricious or an abuse of discretion, especially when Congress

has given the agency the authority to carry out a statute's

purpose.   National Small Shipments Traffic Conference, Inc. v.

United States, 887 F.2d 443, 446 (3d Cir. 1989), cert. denied,

495 U.S. 918 (1990).     Moreover, an agency's interpretation of a

statute that it is responsible for administering is entitled to

substantial deference.     Chevron U.S.A. v. National Resources

Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778 (1984).

Here, as the Supreme Court noted in United States v. Wilson,       112

S.Ct. 1351 (1992), the Attorney General, through the Bureau of
Prisons, has long been trusted with the authority to calculate

sentence credit for time previously served.   Id. at 1355.

Nevertheless, because the Bureau of Prisons' assessment of

Edwards' home confinement was based on its "Program Statements1",

mere internal guidelines rather than its published regulations,

its interpretation is entitled to a minimal degree of deference.

See Koray v. Sizer, 21 F.3d 558, 562 (3d Cir. 1994) (citing FLRA

v. United States Dep't of Navy, 966 F.2d 747, 762 & n. 14 (3d

Cir. 1992)(in banc)).

          In Koray v. Sizer, 21 F.3d 558 (3d Cir. 1994), we held

that the time a detainee spends in a halfway house pursuant to

court order may be "official detention" if the restrictions on a

detainee's liberty were equivalent to "jail-type" confinement.

Edwards asserts that his home confinement was so restrictive that

it approached jail-type confinement, and that the Bureau of

Prisons abused its discretion in finding that his confinement was

not "official detention" under § 3585(b).

          Edwards simply cannot carry his burden: the terms of

his home confinement were just not sufficiently onerous to
1
 . Before the Supreme Court decided Wilson, the Bureau of
Prisons issued a policy statement on February 21, 1992 that made
reference to sentence credit. The Bureau of Prisons Sentence
Computation Manual CCCA Program Statement 5880.28 (February 21,
1992) provides that, "[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."
          However, "[t]he Bureau's interpretation is recorded in
its 'Program Statements', which are merely internal agency
guidelines and may be altered by the Bureau at will." Koray, 21
F.3d at 562 (citing Bureau of Prisons, Program Statement
1121.02.1.2.1. (April 12, 1993)).
approach jail-type incarceration, and, therefore, did not

constitute official detention within the meaning of § 3585.

Edwards minimizes the frequent "blackout" periods he was given

where he was allowed to leave his uncle's apartment to attend

church and social events.   Although he was on electronically

monitored release and could not leave his uncle's apartment

without permission from Pretrial Services, Edwards was frequently

allowed to leave the apartment.   There is no evidence that there

were any restrictions placed on the number of guests he could

have at his uncle's home.   There is no evidence that limitations

were put on the frequency of his guests' visits.    Finally,

Edwards argues that he was not allowed to work while he was in

home confinement, but no evidence was presented that Edwards had

a job or had to refuse employment because of the confinement.

          During the first five months of home confinement,

Edwards was given permission to attend twenty-two social

functions, and one personal outing.   Further, from November 22,

1990 to April 11, 1991, Edwards was given permanent blackout

periods every Monday, Wednesday and Friday from 5:00 p.m. to

10:00 p.m. for choir rehearsal, every Saturday from 11:00 a.m. to

4:00 p.m. for choir meetings, and every Sunday from 9:00 a.m. to

7:00 p.m. for church service and evening service.    Moreover,

during the last four months of his release, Edwards was permitted

approximately thirty hours per week outside of his home

confinement for church activities.    Finally, his weekend blackout

periods were extended on three occasions.
          Edwards may argue and indeed prove that his home

confinement deterred him and taught him a lesson, contained him

and protected society, and even totally rehabilitated him.       That,

however, is beside the point.    By Congress' scheme, it simply

does not matter that the condition of Edwards' home confinement

may have accomplished all this.    The penologically uncertain, but

nonetheless patent objective of offense-based sentencing under

the Sentencing Reform Act is retributive and punitive.

Congress has determined that the sinner must suffer.     Edwards was

placed on court-ordered, pretrial detention to ensure his

appearance at trial, and the fairly modest nature of the

restrictions placed on him reflects that purpose.     His home

confinement was not sufficiently jail-like to punish and he gets

no credit.

                                II.

          Edwards next argues that the Bureau of Prisons should

have given him sentence credit because similarly situated

sentenced persons confined under the same conditions receive

sentence credit.    This is not true.   Edwards, convicted of

distributing cocaine base in violation of 21 U.S.C. § 841(a),

could not even be sentenced to home detention.     Section 5C1.1(f)

explicitly states that if a defendant's "guideline range is more

than ten months, the guidelines require that the minimum term be

satisfied by a sentence of imprisonment."     U.S.S.G. § 5C1.1(f)

(1990).

          Edwards' guideline range for violating § 841(a) is well

above ten months.    He pleaded guilty to distributing fifty grams
or more of cocaine base, which carries a base level offense of

sixteen under the Sentencing Guidelines.   U.S.S.G. § 2D1.1

(1990).   At a minimum, this would result in a twenty-one month

sentence, and here when his criminal history and other charges

were taken into account, Edwards received a 120-month sentence.

Edwards bears no similarity to others sentenced to home

confinement, because he simply could not have been given such a

sentence.

                                III.

            In sum, we will affirm the district court's denial of

Edwards' petition for habeas relief.   The district court gave

appropriate deference to the Bureau's conclusion, made the

unassailable factual determination that Edwards' home confinement

with electronic monitoring was not sufficiently restrictive to

meet the Koray test, and properly concluded that his home

confinement was not "official detention" under § 3585(b).     We

will affirm.
