                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-7698


THOMAS KEVIN HOGGE,

                Petitioner – Appellant,

          v.

ERIC WILSON,

                Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    James R. Spencer, Senior
District Judge. (3:14-cv-00314-JRS-RCY)


Submitted:   March 30, 2016                 Decided:   May 11, 2016


Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Reversed and remanded by unpublished per curiam opinion.


Thomas Kevin Hogge, Appellant Pro Se.    Elizabeth Wu, Assistant
United States Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Thomas    Kevin    Hogge,   a    federal    prisoner,     appeals    the

district court’s order granting summary judgment to Warden Eric

Wilson and dismissing Hogge’s 28 U.S.C. § 2241 petition.                  Hogge

argues that the Bureau of Prisons (“BOP”) improperly calculated

his release date by misapplying his Good Conduct Time (“GCT”).

We hold that the BOP’s calculation method is contrary to the GCT

statute, 18 U.S.C. § 3624.            We therefore reverse the district

court’s judgment and remand with instructions that the district

court grant Hogge’s habeas petition.



                                       I.

      In the late 1990s, Hogge was sentenced for various criminal

offenses in Virginia state court.           On June 28, 1999, while in

the   primary    custody     of   Virginia       authorities,    Hogge     was

transferred into federal custody under a writ of habeas corpus

ad prosequendum.        In February 2000, he was sentenced in federal

court to 96 months’ imprisonment for three counts of possession

of a firearm after a felony conviction in violation of 18 U.S.C.

§ 922(g)(1).     The district court noted that “48 months shall be

consecutive to [Hogge’s] state sentence and 48 months shall be




                                       2
served concurrent to [his] state sentence.”                           E.R. 86. 1       After

sentencing, Hogge was returned to state custody.                               On May 1,

2013, he completed his state sentence and was released into the

exclusive custody of the federal government.

     This case centers on the BOP’s rather byzantine method of

calculating    Hogge’s     start      and       release       dates    for    his    federal

sentence.      Through     a    BOP   employee,         Forest    Kelly,       the   Warden

explains the BOP’s method as follows.

     First,    the   BOP       determined        a    “target    date”       for    release.

E.R. 57.    To arrive at this date, the BOP began by ascertaining

the “tentative full term date” of the sentence by adding the

length of the consecutive sentence (48 months) to Hogge’s date

of release from his concurrent state sentence (May 1, 2013).

E.R. 57.    This calculation yielded a tentative full term date of

April 30, 2017.      Next, to arrive at the target release date, the

BOP reduced the tentative full term date by the amount of GCT

that can be earned during a 48-month sentence (188 days).                             Thus,

the BOP set Hogge’s target release date as October 24, 2016.

     Second, the BOP determined the commencement date of Hogge’s

96-month    sentence.          To   arrive       at    this    date,    the    BOP    set   a

“preliminary    start      date”      by        subtracting      the     full       96-month



    1  Record citations             are    to    the    Electronic       Record      on   the
district court’s docket.



                                             3
sentence from the target release date.                       The BOP calculated that

date as October 25, 2008.             E.R. 57.         Then, the BOP added to this

date the amount of GCT that can be earned during a 96-month

sentence—376       days.       This   resulted         in    a    sentence-commencement

date of November 5, 2009.

      This method of calculation has two results important to

this case.        First, Hogge would serve an equal number of days

during the consecutive and concurrent portions of his sentence

if he were to receive all available GCT.                         Second, the GCT Hogge

earned    during       the   concurrent      portion        of    his    sentence    has   no

effect on the total number of days he will spend in prison.

Instead, the GCT from Hogge’s concurrent sentence merely changes

the     date    that    the    BOP    deems       to    be       his    federal     sentence

commencement date.

      Proceeding pro se, Hogge petitioned for a writ of habeas

corpus under § 2241.            Relevant to this appeal, he argued that

the BOP improperly calculated the start and end dates of his

sentence.       For the start date, Hogge argued that the BOP should

have simply subtracted 48-months from the day he was transferred

to the federal government’s custody.                    As for the target release

date,    he    maintained      that    the       BOP   should          use   the   following

method.        First, he said the BOP should calculate a tentative

full term date by adding 48 months to the date he was released

from state custody.           Here, that date is April 30, 2017—the same

                                             4
tentative full term date that the BOP used.                      Next, Hogge argued

that his target release date should be calculated by subtracting

from the tentative full term date all of the GCT he could earn

over a 96-month sentence.            Hogge calculated that date as April

18, 2016.

     The    Warden     filed     a    motion       to     dismiss,    or,    in     the

alternative,    for     summary      judgment.            The     magistrate      judge

recommended that the district court grant the motion for summary

judgment.      In    doing   so,     he    held    that    the    BOP’s   method     of

calculation was entitled to Chevron deference. 2                      The district

court    subsequently   adopted       the      magistrate       judge’s   report    and

recommendation,       granting       the       Warden’s     motion    for      summary

judgment and dismissing Hogge’s petition.

     This appeal followed.



                                           II.

     We review de novo the district court’s denial of habeas

corpus relief and its grant of summary judgment to the Warden.

Fontanez v. O’Brien, 807 F.3d 84, 86 (4th Cir. 2015); Bostick v.

Stevenson, 589 F.3d 160, 163 (4th Cir. 2009).




     2 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837 (1984).



                                           5
     Hogge argues that the district court erred by analyzing the

BOP’s method of calculation under a Chevron-deference framework.

Instead, Hogge maintains that the Skidmore-deference framework

applies,      and   that    the    BOP’s    method    of     calculation    should      be

rejected as contrary to federal law. 3                We agree.

                                            A.

     The Warden appears to rely on BOP Program Statement 5880.28

to justify its calculation method.                    Additionally, in granting

the BOP Chevron deference, the magistrate judge and the district

court    looked     to     that    program       statement    as    well   as    Program

Statement 5160.05.

     Not all agency interpretations of a statute are entitled to

Chevron deference.           Instead, “such strong deference ‘is limited

to   circumstances         where     (1)    Congress       has     given   the    agency

authority to make rules carrying the force of law and (2) the

agency’s      interpretation         is   rendered    in     the   exercise      of    that

authority.’”        Knox Creek Coal Corp. v. Sec’y of Labor, Mine

Safety    &   Health       Admin.,    811    F.3d    148,    158    (4th   Cir.       2016)

(quoting A.T. Massey Coal Co. v. Holland, 472 F.3d 148, 166 (4th

Cir. 2006)); see United States v. Mead Corp., 533 U.S. 218, 226–

27 (2001).




     3   Skidmore v. Swift & Co., 323 U.S. 134 (1944).



                                             6
       While the BOP has the authority to resolve ambiguities in

the GCT statute, Yi v. Fed. Bureau of Prisons, 412 F.3d 526, 534

& n.5 (4th Cir. 2005), we have held that BOP program statements

are not the sort of agency interpretations that can give rise to

Chevron deference, see Cunningham v. Scibana, 259 F.3d 303, 306

(4th Cir. 2001) (explaining that a “BOP[] program statement is

an internal agency guideline that has not been subjected to the

rigors of notice and comment rulemaking” and therefore is not

entitled to Chevron deference); see also Tablada v. Thomas, 533

F.3d 800, 806 (9th Cir. 2008) (concluding that Program Statement

5880.28 is not entitled to Chevron deference because it “does

not purport to carry the force of law and was not adopted after

notice and comment”); Trowell v. Beeler, 135 F. App’x 590, 595

(4th   Cir.    2005)      (per   curiam)         (holding      that   a   BOP    program

statement     was   not     entitled    to       Chevron     deference     because      it

lacked the force of law).             Moreover, the Warden did not argue in

the    district     court     that     the       BOP    is   entitled     to     Chevron

deference, and he offers no reason on appeal why BOP program

statements should trigger analysis under the Chevron framework.

Consequently,       we   conclude      that      the    district      court     erred    in

granting the BOP Chevron deference.

       Although the BOP is not entitled to Chevron deference, its

method   of    calculation       is    worthy      of    our    respect       under     the

Skidmore-deference framework.                We therefore will defer to the

                                             7
BOP’s method “to the extent it has the ‘power to persuade.’”

Knox Creek, 811 F.3d at 160 (quoting Skidmore, 323 U.S. at 140).



                                         B.

     The     BOP’s       method    of    calculation           is     insufficiently

persuasive   under      Skidmore   because       it     conflicts     with      the    GCT

statute, 18 U.S.C. § 3624.

     The most glaring conflict is that the BOP’s calculation

method undermines § 3624(b)(1) by rendering worthless any GCT

earned during the concurrent portion of Hogge’s sentence.                             This

is at odds with the clear purpose of the GCT statute to provide

inmates with an incentive to comply with prison rules.                                See

Barber v. Thomas, 560 U.S. 474, 482 (2010) (“The reason for [the

GCT-credit scheme] is provided in § 3624(b) itself: to provide

an   incentive    for     prisoners     to     ‘compl[y]       with   institutional

disciplinary      regulations.’”        (second        alteration     in     original)

(quoting § 3624(b)(1))).          Under the BOP’s method of calculation,

Hogge’s conduct during the concurrent portion of his sentence is

immaterial   to    the    length   of    time     he    will    spend      in    prison.

Instead, the GCT he earned during the concurrent portion of his

sentence simply altered the day the BOP retroactively deemed as

his sentence-commencement date.

     The   Warden    does    not    respond      directly       to    this      conflict

between    the   BOP’s     calculation        method    and    § 3624(b).          In    a

                                         8
similar case, however, a district court rejected a BOP argument

that there is no conflict because “[a] federal inmate serving

the    concurrent      portion   of    his       sentence        in     state    prison     is

motivated to comply with state prison rules in order to get

state-law merit time allowances, which will shorten the time

period    until   his    release      date       from    state        prison.”     Hood     v.

Grondolsky, No. 12-11368-JGD, 2012 WL 6061211, at *5 (D. Mass.

Dec. 5, 2012) (alteration in original).                           The court explained

that “[t]his may or may not be true” depending on state law,

and,   irrespective      of   state     law,          “there     is    no   reason    why    a

prisoner should not also be motivated to shorten his federal

prison sentence in accordance with federal law.”                            Id.      We find

the court’s reasoning persuasive.                     See also Hill v. Cowin, 717

F. Supp. 2d 268, 270–71 (N.D.N.Y. 2010) (concluding that a BOP

method of calculation similar to the one in the instant case

conflicted with § 3624(b) because it undermined the incentive

created by the statute).

       In contrast to the BOP’s method, Hogge’s suggested method

of calculation honors the purpose of § 3624(b).                             Under Hogge’s

calculation, all of the GCT he earned over the course of his

entire federal sentence reduces the amount of time he ultimately

will spend in prison.            Thus, using Hogge’s method, GCT would

have     served   as    an    incentive          to     comply    with      prison     rules



                                             9
throughout     the    entirety     of    his      federal      sentence,        just   as

contemplated by the GCT statute.

       A second conflict between the BOP’s calculation method and

the GCT statute arises from the BOP’s award of Hogge’s GCT on

the front end of his sentence.                   Section 3624(b)(2) says that

“credit awarded under this subsection . . . shall vest on the

date the prisoner is released from custody.”                       By applying some

of Hogge’s GCT to the front end of his sentence to determine the

date his sentence commenced, the BOP caused Hogge’s GCT not to

“vest    on    the     date       [he]    was       released       from      custody.”

§ 3624(b)(2).          Accordingly,         we      conclude      that     the     BOP’s

calculation    method       impermissibly        conflicts       with    § 3624(b)(2).

See Hill, 717 F. Supp. 2d at 270 (explaining that the BOP’s

award of “GCT up front” seemingly conflicted with § 3624(b)(2)).

       Additionally, the BOP’s calculation method conflicts with

§ 3624(a).       Section 3624(a) says that “[a] prisoner shall be

released by the Bureau of Prisons on the date of the expiration

of the prisoner’s term of imprisonment, less any time credited

toward the service of the prisoner’s sentence as provided in

subsection (b).”       The BOP’s proposed target release date is not

“the    date   of     the    expiration        of    the    prisoner’s          term    of

imprisonment,       less    any   [GCT].”        § 3624(a)       (emphasis       added).

Instead,   the    BOP’s     target   release        date    is    the    date    of    the

expiration of Hogge’s term of imprisonment less half of his GCT.

                                         10
See Hill, 717 F. Supp. 2d at 270 (explaining that a similar BOP

calculation method conflicted with 3624(a)); see also Hood, 2012

WL    6061211,    at     *4    (agreeing      with    the     reasoning       of    the     Hill

court).

         As the Warden points out, there are few cases dealing

with    “GCT    allocation          for    inmates    serving        partly    concurrent,

partly consecutive sentences.”                    Appellee’s Br. at 17.              In both

Hood    and      Hill,        the     district       courts     rejected       the         BOP’s

calculation method.            See Hood, 2012 WL 6061211, at *1; Hill, 717

F. Supp. 2d at 269–70.                 In Williams v. Maye, No. 13-3005-RDR,

2013 WL 5291955 (D. Kan. Sept. 19, 2013), however, the court

found no error in the BOP’s method of calculation.                            The Williams

court, however, did so without explaining its analysis.                               For the

reasons stated above, we agree with the conclusions of Hill and

Hood instead of Williams.

       The Warden presents two reasons why we should reject Hood

and Hill and affirm the district court’s judgment.                                 First, he

argues that the method of calculation requested by Hogge and

adopted by the courts in Hill and Hood “creates the arbitrary

and    unfair     result        of    requiring       the     inmate     to        serve    the

concurrent      portion       of     his   sentence    day     for    day,    rather       than

receiving      any     benefit       of    GCT,    which    practically        results       in

longer than necessary service of the concurrent portion of the

federal sentence.”             Appellee’s Br. at 18.            We fail to grasp the

                                              11
inequity claimed by the Warden.                  Hogge’s method of calculation

allows him to receive an actual benefit for his good behavior

during     the    concurrent     portion        of   his     sentence:        he    will   be

released     from      prison   earlier     than      he     would      otherwise.         In

contrast,        the   BOP’s    method    of     calculation           grants      Hogge    an

illusory benefit for his good behavior during the concurrent

portion of his sentence, as it has no effect on the length of

time he will spend in prison.

      Second, the Warden argues that unlike Hogge’s method of

calculation, the BOP’s method is consistent with the sentencing

court’s intent that “48 months [of Hogge’s sentence] shall be

consecutive       to   [his]    state    sentence       and      48    months      shall   be

served     concurrent     to    [his]    state       sentence.”         E.R.       86.     The

Warden says that, assuming Hogge earns all potential GCT, the

BOP’s    calculation      method      ensures        Hogge      will    serve      an    equal

number of days in the concurrent and consecutive portions of his

sentence.        But under Hogge’s method, the Warden explains that

Hogge will serve the full 48-months for the concurrent portion

of   his    sentence     and    378     fewer    days      during       the     consecutive

portion of his sentence.

      While we doubt the sentencing court’s intent could trump

the demands of the GCT statute, we also do not ascribe to the

sentencing       court    the   intent     claimed         by   the     Warden.          Under

Hogge’s calculation method and absent the application of GCT, he

                                           12
would serve half of his federal sentence in state custody and

half in federal custody.        This is consistent with the sentencing

court’s order.       Moreover, the Warden fails to point to anything

that suggests that the sentencing court’s intent was to ensure

that   Hogge   would   serve   an     equal   amount   of    time   during   his

concurrent and consecutive sentences after taking into account

GCT.    Consequently, we reject the Warden’s argument that Hogge’s

method of calculation fatally undermines the sentencing court’s

intent.



                                      III.

       For   the   reasons   given,    we    reverse   the   judgment   of   the

district court and remand with instructions that the court grant

Hogge’s habeas petition.        As it appears that Hogge is entitled

to be released immediately, we direct the Clerk to issue the

mandate forthwith.

                                                       REVERSED AND REMANDED




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