               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                                          _______________

                                            No. 99-40450
                                          _______________

                                      KAREEM A. NAGIB,
                                                              Petitioner-Appellant,
                                               VERSUS

                         N.L. CONNER, EDWARD CROSLEY,
                                       and
                        UNITED STATES BUREAU OF PRISONS,
                                                              Respondents-Appellees.
                                    _________________________

                            Appeal from the United States District Court
                                 for the Eastern District of Texas
                                          (5:97-CV-252)
                                 _________________________

                                            August 13, 1999

Before SMITH, WIENER, and                             At a detention hearing in late September 1989,
  BARKSDALE, Circuit Judges.                          he requested release on bond to Forest
                                                      Hospital, a private health-care facility, for
JERRY E. SMITH, Circuit Judge:*                       treatment of drug addiction and depression.
                                                      The magistrate judge requested that the federal
   Kareem Nagib appeals the denial of his             probation office investigate whether the
petition for writ of habeas corpus and                proposed facility was a proper and secure
declaratory judgment. Finding him entitled to         facility for Nagib pending trial, and on
some sentence credit for time spent in                November 1, 1989, the magistrate judge
unofficial detention, we REVERSE and                  ordered Nagib’s release to Forest Hospital.
RENDER judgment granting a sentence credit
of fifty-two days.                                        The order, entitled “Order: Conditional
                                                      Release,” states that Nagib “shall be released
                      I.                              on his own recognizance subject to the
   Police arrested Nagib in Wisconsin in              following conditions,” including that the U.S.
September 1989 for conspiracy to possess              Marshal must transport Nagib to Forest
with intent to distribute narcotics. He was           Hospital and retri eve him for court
detained in federal custody at the county jail.       appearances. The order refers to Nagib’s
                                                      “‘voluntary’ admission” to Forest Hospital and
                                                      states that he “is ordered to remain in the
    *
      Pursuant to 5TH CIR. R. 47.5, the court has     program of said Forrest [sic] Hospital until he
determined that this opinion should not be            is discharged or until the further order of this
published and is not precedent except under the       court” and that if he is discharged, “the U.S.
limited circumstances set forth in 5TH CIR. R.        Marshal is directed to be present . . . and to
47.5.4.
deliver the body of defendant Nagib as                 he initially was credited with that time, but the
directed by the court.”                                government “recomputed” his sentence in July
                                                       1994, to remove the credit.            He was
   More than four months after he entered              resentenced in 1993 to 151 months’
Forest Hospital, Nagib, on March 9, 1990,              imprisonment under amendments to the
was convicted of conspiracy with intent to             Sentencing Guidelines, resulting in a release
deliver narcotics, an offense with a statutory         date of August 31, 2000. He contends that his
minimum term of incarceration. Nonetheless,            sentence should be credited with the 368 days
on March 14, the district court granted                he spent at Forest Hospital and, accordingly,
Nagib’s motion to continue his treatment at            that he should be released on August 28, 1999.
Forest Hospital pending sentencing.
                                                          Nagib filed this habeas petition under
    More than five months later, on                    28 U.S.C. § 2241, arguing that the denial of
September 28, Nagib was sentenced to 235               credit for the time he spent at Forest Hospital
months’ imprisonment. Again, the court                 violates his due process rights and that the
ordered that he be returned to Forest Hospital         retroactive application of Reno v. Koray,
pending classification by the Bureau of                515 U.S. 50 (1995), violates the Constitution’s
Prisons. The court eventually ordered Nagib’s          prohibition of ex post facto laws.2 The district
release from Forest Hospital, and, on                  court referred the case to a magistrate judge,
November 20, 1990, he was taken into federal           who issued a report and recommendation on
custody and transported to the Federal                 February 22, 1999. The district court adopted
Medical Center in Rochester, Minnesota. In             the magistrate judge’s report and denied relief.
all, he spent 368 days at Forest Hospital,
almost eight months of which was after his                                     II.
conviction. He spent 52 days at Forest                     Pursuant to 18 U.S.C. § 3585, which was
Hospital after he was sentenced.                       enacted as part of the Sentencing Reform Act
    At sentencing, the court told Nagib he             of 1984 and became effective in 1987, a
would receive credit toward his sentence for           defendant is awarded credit for any time spent
the time he spent at Forest Hospital.1 Indeed,         in “official detention.”3 The Bureau of Prisons


   1
      The following conversation occurred at the       (...continued)
sentencing hearing:                                             language that you would like in the
                                                                formal judgment and commitment
   MR. ZIEVERS [Nagib’s counsel]: Your                          order, I think it’s appropriate since the
      Honor, would there be—another                             defendant has been in effect in custody
      bookkeeping matter, would there be                        since his arrest.
      any entitlement to sentence credit at
      this point?                                         MR. ZIEVERS: Thank you, Your Honor.
                                                           2
   THE COURT: That is automatically given,                    Nagib does not appeal the dismissal of his
      Mr. Zievers; so, yes, you will receive it        claim regarding the ex post facto application of
      with or without an order of the court.           Koray, but he does argue that the fact that the
                                                       decision came after his bail hearings supports his
   MR. ZIEVERS: I’m—obviously if he was                contention that his right to due process has been
       in Racine [jail], it wouldn’t be a              infringed.
       question; but I don’t want any
                                                            3
       confusion. He was in detention housed                  Before 1987, a defendant was entitled to
       at Forest Hospital.                             “credit toward service of his sentence for any days
                                                       spent in custody in connection with the offense or
   THE COURT: We’ll, if you want to send               acts for which the sentence was imposed.”
      my clerk a letter Monday detailing the           18 U.S.C. § 3568 (1982) (repealed in 1984)
                          (continued...)                                           (continued...)

                                                   2
issued a program statement in 1992 providing                   Precluded from directly attacking the
that                                                        government’s refusal to credit his sentence,
   [t]ime spent in a community corrections                  Nagib argues that he was either misinformed
   center . . . . is not creditable as                      or uninformed regarding the consequences of
   presentence time. A condition of bail or                 his bail election and that this lack of
   bond which is ‘highly restrictive,’ and                  information violated his due process rights.
   that includes ‘house arrest,’ ‘electronic                He bases his argument on Justice Ginsburg's
   monitoring,’ or ‘home confinement’ . . .                 concurring opinion in Koray, in which she
   is not considered as time in official                    explained:
   detention.

Bureau of Prisons Program Statement
5880.28(c) (internal policy statement).
   In Koray, 515 U.S. at 64, the Court
approved the Bureau of Prisons's conclusion
that time spent by a defendant at a community
treatment center while “released” on bail is not
“official detention” under 18 U.S.C. § 3585.
Koray thus forecloses any argument that
Nagib's time at Forest Hospital comprised
“official detention” under 18 U.S.C. § 3585.4


(...continued)
(emphasis added).
    4
      In Koray, the Court considered a defendant
who was released to a Volunteers of America
community treatment center pending sentencing for
money laundering, but whose “release order”
required that he be “confined to the premises” and
was without “authorization to leave for any
reason” unless accompanied by a government
agent. See Koray, 515 U.S. at 52-53. Deferring to
the Bureau of Prisons's interpretation of “official
detention,” the Court concluded that the defendant
was not entitled to sentencing credit, because “[a]
defendant who is ‘released’ is not in [the Bureau’s]
custody, and he cannot be summarily reassigned to
a different place of confinement unless a judicial
officer revokes his release.” Id. at 63. The Court
rejected the Third Circuit’s construction of official
detention as including such a release, stating that
“[t]o 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,” but that “[t]he 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’           (...continued)
                            (continued...)                  order.” Id. at 64.

                                                        3
   I write separately to point out that                 been infringed because he was not informed at
   Koray has not argued before us that he               the bail hearing that he would not receive
   did not elect bail intelligently, i.e., with         credit toward any future sentence. The
   comprehension that time in the halfway               defendant specifically invoked Justice
   house, unlike time in jail, would yield no           Ginsburg’s concurring opinion in Koray. See
   credit against his eventual sentence.                id. at 724.
   The Court thus does not foreclose the
   possibility that the fundamental fairness              Affirming the dismissal of the petition, the
   we describe as due “due process” calls               court stated:
   for notice and a comprehension check.
   Cf. Fed. Rule Crim. Proc. 11 (setting                        We have respectfully considered the
   out information a court is to convey to                 force of the possibility raised by Justice
   assure that a defendant who pleads                      Ginsburg that due process might require
   guilty understands the consequences of                  notice to a pretrial detainee that release
   the plea).                                              conditioned on home confinement will
                                                           not be credited against a subsequent
Koray, 515 U.S. at 65 (Ginsburg, J.,                       sentence and conclude that no such
concurring).                                               constitutional requirement exists . . . .
                                                           There is no relinquishment of any
   Nagib argued to the district court, and                 significant right when a defendant elects
asserts again on appeal, that at the time of his           bail. The defendant accepting the
bail hearings he could not have known of the               conditions of bail is simply trading jail-
Bureau of Prisons's policy articulated in 1992             type confinement for something less
and the Koray decision in 1995, and that the               restrictive. Though [the defendant]
court’s statement at the sentencing hearing                accepted home detention, this degree of
regarding sentencing credit led him to believe             confinement was not imposed as a
he would receive credit for the time he spent at           surrender of prior liberty; it was an
Forest Hospital. He contends that he has a                 upgrade to less restrictive confinement.
due process right to clear notice of the
consequences of electing a ‘release’ or
‘detention’ order and that that right was               Id. The court determined that any opportunity
violated when the district court failed to              the defendant may have to shorten a later-
inform him, when he initially sought release to         imposed sentence “is too insubstantial to be
the confined conditions of Forest Hospital,             regarded as a liberty interest protected by the
that he would receive no sentence credit for            Due Process Clause” because, at the time the
his time at the hospital.                               defendant elects conditional bail, “it is entirely
                                                        speculative whether he will be convicted, and,
                       III.                             if so, whether he will be sentenced to prison.”
                        A.                              Id.
    In rejecting Nagib’s argument, the district
court relied on Cucciniello v. Keller, 137 F.3d             We find Cucciniello's reasoning persuasive,
721 (2d Cir. 1998). The defendant in that case          and we agree that any liberty interest a pre-
had been released on bail, while he was a pre-          trial detainee has in getting an early start on a
trial detainee, subject to a special condition of       possible future sentence is too insubstantial to
home confinement. The court said nothing at             merit protection under the Due Process
the bail hearing to indicate whether the period         Clause. Accordingly, Nagib was not denied
of home confinement (both before and after              due process when the district court failed to
conviction) would be credited against any               inform him, at his bail hearing, that elective
subsequent sentence. See id. at 722. The                confinement at Forest Hospital would not be
government later refused to credit the                  credited toward any subsequently imposed
sentence, and the defendant sought habeas               sentence. He is therefore not entitled to
relief, arguing that his due process rights had

                                                    4
sentence credit for the time spent at Forest           he also notes that the court affirmatively
Hospital prior to his conviction.                      misinformed him at his sentencing hearing that
                                                       he would receive such credit. He claims that
                       B.                              the court's misrepresentation violated his right
   After a defendant is convicted of a crime           to due process and that he should thus get
for which there is a mandatory minimum                 sentence credit for his time at Forest Hospital.
sentence, a future sentence is no longer
“entirely speculative,” and Cucciniello's                  We agree that the Due Process Clause
reasoning no longer applies. We must thus              guarantees a defendant's right not to be
determine whether Nagib had a due process              affirmatively misinformed of the sentencing
right to be informed, at the time of conviction,       implications of his decision to elect unofficial
that his post-conviction tenure at Forest              detention. “Litigants need to be able to trust
Hospital would not count toward his sentence.          the oral pronouncements of district court
We conclude that he did not have such a                judges,” United States v. Buchanan, 59 F.3d
constitutional right.                                  914, 918 (9th Cir. 1995),5 and requiring
                                                       district courts to refrain from providing
   To determine what procedures are required           misinformation, unlike affirmatively requiring
by due process, we balance private versus              them to provide information, does not impose
government interests. See Morrissey v.                 a significant burden. Accordingly, Nagib's due
Brewer, 408 U.S. 471, 481 (1972). Nagib                process rights were violated when the court
contends that due process requires that a              misinformed him that he would receive
defendant be informed, when convicted, of the          sentence credit, and he is therefore entitled to
consequences of electing particular                    some relief.
confinement options. The interests at stake
are the defendant's interest in intelligently             Nagib asserts that he should get credit for
electing or declining to elect bail and the            his entire tenure (368 days) at Forest Hospital.
court's interest in avoiding the requirement to        The sentencing court's misrepresentation
spell out for defendants all the implications of       concerning credit did not occur, however, until
their bail election decisions.                         near the end of Nagib's stay at the hospital.
                                                       He thus did not rely on this misstatement in
   Given the heavy burden such a requirement
would place on courts, which already must
provide a host of technical protections, and the          5
fact that defendants could easily ask the court              In Buchanan, a defendant entered into a plea
about sentencing credit (as Nagib finally did at       agreement in which he waived the right to appeal
                                                       sentencing findings, yet when he appeared in court
his sentencing hearing), we do not believe the         to enter the plea, the court stated twice that he did
Due Process Clause places an affirmative duty          have a right to appeal the findings. 59 F.3d
on courts to inform convicts of the sentencing         at 916-17. The government did not object to those
implications of their decisions regarding bail.        statements when they were made. The Ninth
Accordingly, the court did not violate Nagib's         Circuit held the plea waiver unenforceable because
due process rights in failing to inform him,           the district court's clear statements trumped the
when he was convicted, that any additional             waiver language in the written agreement in light of
time at Forest Hospital would not count                the government's failure to object, and because
toward his sentence. He is thus not entitled to        “[l]itigants need to be able to trust the oral
credit for all the time he spent at Forest             pronouncements of district court judges.” Id. at
Hospital after his conviction.                         918. In the case at hand, the government did not
                                                       object to the sentencing court's assertion that Nagib
                                                       would receive sentence credit for his time at Forest
                       C.                              Hospital. See also United States v. Amaya, 111
   But Nagib does not claim merely that the            F.3d 386, 387 (5th Cir. 1997) (vacating guilty plea
court violated his due process rights in failing       entered in reliance on false promise that court had
to inform him that he would not receive                authority sua sponte to depart downward for
sentence credit for his time at Forest Hospital;       substantial assistance).

                                                   5
electing bail, and he is not entitled to credit for
days spent in Forest Hospital before the
misrepresentation. Instead, he is entitled to
credit for the fifty-two days he spent in Forest
Hospital after the court told him he would
receive sentence credit.

   Nagib elected to return to Forest Hospital
while he waited for the Bureau of Prisons to
take him into custody, and his decision to do
so was surely influenced by the
misrepresentation regarding sentence credit.
Fundamental fairness thus dictates that he
receive credit for the fifty-two days he spent at
Forest Hospital after his sentencing hearing.
We therefore REVERSE the judgment that
Nagib is entitled to no credit for his time at
Forest Hospital and RENDER a judgment
granting him fifty-two days of sentence credit.




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