                                    PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 16-4258


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

BRICETON GRANT,

                   Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. T. S. Ellis, III, Senior District Judge. (1:16-cr-00062-TSE-1)


Argued: May 9, 2017                                             Decided: July 6, 2017


Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Shedd
and Judge Duncan joined.


ARGUED: Nicholas John Xenakis, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Christopher John Catizone, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Geremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Dana J. Boente, United
States Attorney, Angelissa D. Savino, Special Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:

       After the Government prematurely released Briceton Grant from prison, Grant

sought credit for the time he erroneously spent at liberty. Assuming federal common law

offers such relief, the district court did not improperly deny him this credit. Accordingly,

we affirm the judgment of the district court.



                                                I.

       On April 28, 2015, Grant pled guilty to a one-count information in the Eastern

District of Virginia charging him with possession of phencyclidine (“PCP”), in violation

of 21 U.S.C. § 844(a) (2012). That same day, a magistrate judge sentenced him to one

year of supervised probation, subject to certain conditions. One of these conditions

prohibited Grant from committing any federal, state, or local crime during the one-year

period of probation.

       Four days later, on May 2nd, the Fredericksburg, Virginia Police Department

arrested Grant and charged him with possession with intent to distribute marijuana and

possession with intent to distribute a Schedule I/II drug. The federal Probation Office

filed a petition asking the federal court to order Grant to appear and show cause why, in

light of his state arrest, the court should not revoke his supervised probation.

       On February 16, 2016, a federal magistrate judge found Grant in violation of his

supervised probation and remanded him to the custody of federal marshals for fifteen

days of incarceration as punishment for the violation. On February 19, 2016 — eleven

days too early — the marshals erroneously allowed Grant to be released from custody.

                                                2
The Government acknowledges that it bears sole responsibility for this mistake and that it

first learned about the erroneous release a few days later from Grant’s attorney, who had

called to ask how to proceed given the error.

       After receiving the call from Grant’s attorney, the Probation Office filed a second

petition on February 25, 2016. This petition alleged that Grant had “fail[ed] to serve

fifteen (15) days [in] jail as directed by the Court,” and therefore sought to have Grant

remanded into federal custody for eleven more days. Grant surrendered to the marshals

on February 29, 2016.

       Before the magistrate judge acted on the petition, Grant filed a motion to receive

credit for the ten days during which he was mistakenly released. The magistrate judge

denied the motion but allowed him to serve these ten days intermittently “on weekends or

other days” because Grant had obtained employment while at liberty. The judge also

agreed to stay her order if Grant chose to appeal. Grant appealed the magistrate judge’s

order to the district court, which also denied his motion. United States v. Grant, 184 F.

Supp. 3d 250, 255 (E.D. Va. 2016). Grant subsequently noted this appeal, and the district

court stayed its order pending our decision. 1

       We review a district court’s factual findings for clear error, its legal conclusions de

novo, and the ultimate application of law to facts for abuse of discretion. See Newport

News Shipbuilding & Dry Dock Co. v. Holiday, 59 F.3d 219, 226 (4th Cir. 2009).

       1
         At the conclusion of his hearing before the district court, Grant served one
additional day in prison. Thus, although the Government released him eleven days early,
an award of ten days credit would entirely eliminate any balance remaining on Grant’s
sentence.

                                                 3
                                            II.

       Individuals seeking credit for time erroneously spent at liberty have grounded their

requests in either the Constitution or the common law. In the only instance in which we

have considered a claim of credit for time erroneously spent at liberty, a state prisoner

filed a habeas petition under 28 U.S.C. § 2254 asserting a substantive due process right.

See Hawkins v. Freeman, 195 F.3d 732, 735 (4th Cir. 1999) (en banc). We rejected the

claim and concluded that the Constitution did not bar re-incarceration following a

prisoner’s premature, negligent release from prison. Id. at 750. In those situations, we

explained, a state prisoner’s recourse “must be found . . . by courts applying state

common law and equitable principles, or by executive clemency.” Id. 2

       An appellate court first recognized a federal common law right to credit for time

erroneously spent at liberty in White v. Pearlman, 42 F.2d 788, 789 (10th Cir. 1930). In

White, the warden informed a prisoner that his time in prison had ended and, over the

prisoner’s objection that the warden was incorrect, “the prisoner was ‘dressed out,’ paid

up, given a discharge, and furnished with transportation” out of the prison. Id. In a brief

opinion addressing these facts, the White court granted the requested credit, explaining




       2
         While we have never before addressed a prisoner’s attempt to receive credit
under federal common law for time erroneously spent at liberty, a number of district
courts in this circuit have considered such a claim. See, e.g., Johnson v. Mathieson, No.
3:15-cv-203, 2015 WL 3772776 (E.D. Va. June 16, 2015); Lee v. Wilson, No. 1:11-cv-
981, 2012 WL 3069407 (E.D. Va. July 26, 2012); Bradford v. Rivera, No. 9:11-cv-
00462-RBH, 2011 WL 5827601 (D.S.C. Nov. 18, 2011); Priester v. Rivera, No. 3:07-
2787-RBH, 2008 WL 4132217 (D.S.C. Aug. 29, 2008).

                                            4
that “where a prisoner is discharged from a penal institution, without any contributing

fault on his part, . . . his sentence continues to run while he is at liberty.” Id.

       Since then, several of our sister circuits have also recognized, at least to some

degree and in some circumstances, a federal common law right to credit for time

erroneously spent at liberty. See Espinoza v. Sabol, 558 F.3d 83, 88–89 (1st Cir. 2009);

Vega v. United States, 493 F.3d 310, 318 (3d Cir. 2007); Free v. Miles, 333 F.3d 550, 554

(5th Cir. 2003); Dunne v. Keohane, 14 F.3d 335, 336–37 (7th Cir. 1994); Kiendra v.

Hadden, 763 F.2d 69, 72–73 (2d Cir. 1985); United States v. Croft, 450 F.2d 1094, 1097

(6th Cir. 1971); Smith v. Swope, 91 F.2d 260, 262 (9th Cir. 1937). In these cases, the

courts, regardless of the precise framework used to determine a prisoner’s entitlement to

credit, universally apply two principles. First, a prisoner may not receive credit if he had

a role in creating his premature release. See, e.g., Espinoza, 558 F.3d at 90. Second, a

prisoner has a right to credit if the Government maliciously caused his premature release.

See, e.g., Dunne, 14 F.3d at 336–37. 3

       Fashioning the appropriate approach in a case, like the one at hand, involving

neither of these scenarios has proved more difficult. Some courts will not award credit

unless the Government acted maliciously.              The Fifth Circuit, for example, has

characterized the “sole purpose” of granting credit for time at liberty as “prevent[ing] the

       3
         The Fifth and Eleventh Circuits also utilize a third dispositive rule. They
categorially deny credit to all prisoners whose claims for credit stem from a delayed
commencement of their prison terms. See Little v. Holder, 396 F.3d 1319, 1321–22 (11th
Cir. 2005); Leggett v. Fleming, 380 F.3d 232, 234 (5th Cir. 2004). Given that Grant had
begun his prison sentence when the Government erroneously released him, we need not
consider this distinction here.

                                                5
government from abusing its coercive power to imprison a person by artificially

extending the duration of his sentence through releases and re-incarcerations.” Free, 333

F.3d at 554. Similarly, the Seventh Circuit has described “the core area of [the common

law rule’s] application” as occasions in which “the government is trying to delay the

expiration of the defendant’s sentence.” Dunne, 14 F.3d at 336–37.

       On the other hand, some courts award credit whenever the Government errs, even

if it was merely negligent. Thus, the Ninth Circuit has promulgated a categorical rule

awarding credit whenever the Government mistakenly releases a prisoner. See Swope, 91

F.2d at 262 (“The prisoner . . . must be deemed to be serving [his time] from the date he

is ordered to serve it . . . if, without his fault, the marshal neglects to place him in the

proper custody.”).    Similarly, although the Second, Sixth, and Tenth Circuits have

engaged in a detailed, fact-bound discussion before awarding credit, each appears to

anchor its analysis in a similar categorical rule.      See Kiendra, 763 F.2d at 72–73

(following Swope); Croft, 450 F.2d at 1099 (same); White, 42 F.2d at 789.

       The Third Circuit has formulated its own approach. In Vega, that court adopted a

burden-shifting framework to decide whether to award credit. Under it, the prisoner

bears the initial burden of “demonstrat[ing] that he has been released despite having

unserved time remaining on his sentence.” Vega, 493 F.3d at 319. If the prisoner does

so, the burden then shifts to the Government, which must “prove either (1) that there was

no negligence on the part of the imprisoning sovereign, or (2) that the prisoner obtained

or retained his liberty through his own efforts.” Id.

       With this background in mind, we turn to Grant’s claim for credit in this case.

                                             6
                                           III.

       We note at the outset of our analysis that we are not at all sure a federal common

law right to credit for time erroneously spent at liberty currently exists. As the First

Circuit has noted, legal developments in the decades since White cast some doubt on the

current validity of the doctrine. Espinoza, 558 F.3d at 88. For example, the Sentencing

Reform Act of 1984 created an intricate system governing not only the imposition of

criminal sentences, see Beckles v. United States, 137 S. Ct. 886, 893 (2017), but their

administration as well, see United States v. Wilson, 503 U.S. 329, 331–33 (1992). But

given our holding in the case at hand, we need not determine the continuing availability

of such a credit. Rather, we assume, without deciding, that in some circumstances,

federal common law offers prisoners the possibility of credit for time erroneously spent at

liberty.

       As the parties recognize, neither of the two factors courts regard as dispositive —

the prisoner’s role and the Government’s malice — is at issue here. Grant played no role

in causing the premature release, and the Government did not act with malice when it

negligently released him.

       Grant argues that the Vega test should apply in cases where the Government non-

maliciously causes a premature release of a prisoner. Vega itself recognized that credit

for time erroneously spent at liberty serves several interests.       These include “the

prisoner’s interest in serving his sentence in a continuous and timely manner, the need to

limit the arbitrary use of governmental power, and the government’s and society’s

interest in making sure a prisoner pays the debt he owes to society.” 493 F.3d at 319.

                                            7
Awarding credit also implicates a prisoner’s interest in reintegrating into the community,

the Government’s interest in incentivizing prisoners to self-report any erroneous release,

and society’s general interest in achieving a balance of equities. Even assuming that

mere negligence on the Government’s part does not preclude credit, but see Free, 333

F.3d at 554; Dunne, 14 F.3d at 336–37, the award of such relief must attempt to

accommodate all these interests and not simply prioritize one.

       In refusing to apply the Vega test, the district court reasoned that it “is too narrow

to account for all the circumstances that may arise in various cases of erroneously granted

liberty.” Grant, 184 F. Supp. 3d at 253. We agree. To be sure, Vega strongly deters the

Government from erroneously releasing prisoners before the end of their sentence, and

such deterrence certainly constitutes an interest worth promoting. But under the Vega

test, this deterrence interest would nearly always automatically trump all other interests.

For if a prisoner does not cause his own premature release, Vega mandates that a prisoner

receive credit unless the Government can prove that it was not negligent. Since the

Government rarely, if ever, has an incentive to release a prisoner prematurely, a prisoner

would all but certainly, with the single exception identified in Vega of miscommunication

between different sovereigns, meet this burden. We cannot see, and Grant has not

demonstrated, how outside that one category of cases, the Vega rule would ever deny

credit to a prisoner not responsible for his premature release. Due to this failure to

adequately consider the multitude of interests an award of credit implicates, we decline to

adopt the Vega test.



                                             8
       Instead, we turn to the various other interests implicated in a decision to award

credit for time erroneously spent at liberty because of a premature release. That Grant’s

underlying conviction and underlying supervised probation violation involved nonviolent

drug offenses, and that Grant proactively brought his erroneous release to the

Government’s attention support his plea for credit. But a number of other interests

support the district court’s denial of credit. Grant seeks ten days of credit for a fifteen-

day sentence; he has paid only one-third of his debt to society. Given that the magistrate

judge allowed Grant to serve this ten-day period “on weekends or other days” to

accommodate his employment schedule, re-incarceration would (at most) only minimally

hinder Grant’s reintegration into society. Moreover, Grant’s ten days of additional time

in prison is by definition short enough to avoid the disruption to a prisoner’s life that re-

incarceration for a period of months or years might pose. And finally, the Government’s

promptness in working to correct its mistake upon learning of its error underscores the

lack of any malice on its part. See White, 42 F.2d at 789. In light of all of these relevant

interests, which the district court recognized, we cannot say that the court abused its

discretion in denying Grant credit.

       Grant argues that even if the district court did not err in balancing the relevant

interests when deciding to deny him credit, we must still vacate its order and remand the

case because the court relied on two clearly erroneous factual findings in doing so.

Specifically, Grant challenges the findings that (1) the Probation Office “took prompt

steps to remedy the mistake,” and (2) Grant had multiple violations of supervised

probation. Grant, 184 F. Supp. 3d at 254.

                                             9
       The first challenged finding — regarding the Government’s prompt response —

does not rest on a conclusion as to which party first brought the error of Grant’s

premature release to the attention of the other. Rather, the finding addresses the speed

with which the Government responded after it learned of its mistake. Given that only a

few days elapsed between the time the Government learned of Grant’s mistaken release

and its subsequent petition, we cannot say that the district court erred (let alone clearly

erred) when it drew the plausible inference that that the Government, upon learning of its

error, acted promptly in rectifying its mistake.

       The other challenged finding — that Grant had multiple supervised probation

violations — is error, albeit one that is both understandable and, ultimately,

inconsequential. To be sure, Grant’s May 2, 2015 arrest is the only supervised probation

violation in the record; the second petition dealt solely with Grant’s premature release,

for which the Government acknowledges responsibility. However, Grant’s May 2, 2015

arrest occurred just four days after the magistrate judge sentenced him for his possession

of PCP conviction. Although the district court referred to Grant’s multiple violations of

supervised probation, it also characterized Grant as “a repeat offender,” something that is

indisputably true. See Grant, 184 F. Supp. 3d at 254. Thus, it was not unreasonable for

the court to conclude that Grant’s multiple drug arrests — with the second coming a mere

four days after his sentencing on the first — undermined any equitable case for awarding

him credit. At a minimum, we have no trouble affirming on the basis that Grant’s pair of

drug arrests, occurring so close in time to each other, in combination with all the other

interests the district court considered in reaching its decision, rendered harmless any

                                             10
misconception the court may have had regarding the number of Grant’s supervised

probation violations. See Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded.”).



                                            IV.

       For the foregoing reasons, the judgment of the district court is

                                                                           AFFIRMED.




                                             11
