                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-30-2005

Nye v. Federal Bureau
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3864




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"Nye v. Federal Bureau" (2005). 2005 Decisions. Paper 935.
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CPS-209                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 04-3864
                                   ________________

                                     BRIAN A. NYE,
                                            Appellant
                                           v.

                            FEDERAL BUREAU OF PRISONS;
                              TRACY W. JOHNS, Warden,
                                     FCI Loretto


                       ____________________________________

                     On Appeal From the United States District Court
                        For the Western District of Pennsylvania
                               (W.D. Pa. Civ. No. 04-80J)
                        District Judge: Honorable Kim R. Gibson
                     _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  April 21, 2005

             BEFORE: ALITO, McKEE and AMBRO, CIRCUIT JUDGES

                                 (Filed:   June 30, 2005)

                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       Brian A. Nye appeals pro se from the order of the District Court for the Western

District of Pennsylvania denying his petition for writ of habeas corpus to the extent he
sought to compel Appellees to calculate his “good time” credit based on the sentence

imposed rather than the time served.

       At the time of filing this appeal, Nye was serving a fifty-one month sentence at the

Federal Correctional Institution in Loretto, Pennsylvania. Nye filed a petition for habeas

corpus relief under 28 U.S.C. § 2241 in the District Court challenging the Bureau of

Prisons’ (“BOP”) change in policy related to the timing of the release of prisoners to

community confinement. Nye subsequently filed a supplement to his habeas petition,

seeking to compel the BOP to calculate his good time credit based on the sentence

imposed rather than on the time he has served. Upon recommendation by the Magistrate

Judge, the District Court granted Nye’s habeas petition with respect to the community

confinement issue and dismissed the claim related to the calculation of good time credit

for failure to exhaust administrative remedies. It is from this dismissal that Nye appeals.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We can affirm the

District Court on any basis supported in the record. See Fairview Township v. EPA, 773

F.2d 517, 525 n.15 (3d Cir. 1985). Our review is plenary. See Bakhtriger v. Elwood, 360

F.3d 414, 417 (3d Cir. 2004). The Commonwealth has filed a motion for summary

affirmance to which Nye has responded.

       Nye challenges the BOP’s interpretation of 18 U.S.C. § 3624(b)(1), which

provides that credit may be applied to a prisoner’s sentence based on “satisfactory

conduct.” The statute reads, in pertinent part, as follows:



                                              2
              [A] prisoner who is serving a term of imprisonment of more
              than 1 year other than a term of imprisonment for the duration
              of the prisoner’s life, may receive credit towards 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 . . .

18 U.S.C. § 3624(b)(1). The BOP interprets this statute to allow fifty-four days of “good

time” credit for each year served by the prisoner. 28 C.F.R. § 523.20. The BOP’s

formula for calculating good time credit accounts for the fact that the prisoner’s sentence

is incrementally shortened as good time credit is awarded each year. See White v.

Scibana, 390 F.3d 997 at 1000-1001 (7 th Cir. 2004) (explaining the BOP’s formula).

       Nye argues that the placement of the word “beyond” in the phrase “beyond the

time served” means that good time credit should be added to the amount of time served,

rather than based on the amount of time served. He next asserts that the phrase “term of

imprisonment” refers to the sentence as imposed and has the same meaning as when used

in the sentencing phase of a defendant’s trial or in the text of the United States Sentencing

Guidelines. As a result of the BOP’s incorrect interpretation of this statute, Nye argues,

he is being deprived of good time credit to which he is entitled.

       We have recently held that the phrase “term of imprisonment” in this statute is

ambiguous. See O’Donald v. Johns, 402 F.3d 172, 174, 2005 WL 647669 at **2 (3d Cir.

March 22, 2005). We need not dwell on this ambiguity, or on the meaning of “beyond the

time served,” however, as we further held in O’Donald that the BOP’s interpretation of §



                                             3
3624(b) is reasonable. See id. Therefore, we defer to the BOP’s interpretation, as

required under Chevron U.S.A., Inc. v. Natural Resources Def. Council, 467 U.S. 837,

844 (1984).

       For the foregoing reasons, Nye’s arguments are foreclosed by our decision in

O’Donald; summary action is warranted based on this subsequent precedent.

Accordingly, we will affirm the District Court’s judgment. See Third Circuit LAR 27.4

and I.O.P. 10.6.
