                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  April 24, 2013
                                    PUBLISH                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT


 ALI SALEH KAHLAH AL-MARRI,

       Petitioner - Appellant,
                                                        No. 12-1230
 v.

 BLAKE DAVIS, Warden, ADX-
 Florence,

       Respondent - Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                  (D.C. No. 1:11-CV-02255-RPM)


Lawrence Lustberg, (Darold W. Killmer of Killmer, Lane & Newman, L.L.P.,
Denver, Colorado; Jonathan Manes of Gibbons, P.C., on the briefs), Newark, New
Jersey, for Petitioner - Appellant.

Michael C. Johnson, Assistant United States Attorney, (and John F. Walsh,
United States Attorney, on the brief), Denver, Colorado, for Respondent -
Appellee.


Before KELLY, MCKAY, and O’BRIEN, Circuit Judges.


KELLY, Circuit Judge.


      Petitioner-Appellant Ali Saleh Kahlah al-Marri, a federal inmate, appeals

from the district court’s judgment denying his petition for a writ of habeas
corpus. 28 U.S.C. § 2241. Mr. al-Marri is serving a 100-month federal sentence

for conspiracy to provide material support or resources to a foreign terrorist

organization (al-Qaeda). 18 U.S.C. § 2339B(a)(1). He contends that he is

entitled to Good Conduct Time (GCT) for the 71 months he was held as a material

witness and an enemy combatant. The Bureau of Prisons (BOP) and the district

court did not agree. On appeal, he claims that he is entitled to a GCT calculation

under 18 U.S.C. § 3624(b), or as an equitable remedy for his allegedly

unconstitutional detention. Exercising our jurisdiction under 28 U.S.C. §§ 1291

and 2253(a), we affirm the district court’s denial of relief.



                                     Background

        On December 12, 2001, the Federal Bureau of Investigation (FBI) arrested

Mr. al-Marri as a material witness to the September 11, 2001 terrorist attacks

against the United States. Aplt. App. 6, 240. Following the arrest, Mr. al-Marri

was held in Peoria County Jail, Illinois, until January 4, 2002. Id. at 6–7. He was

then transferred to the Metropolitan Correctional Center (MCC) in Manhattan. Id.

at 7.

        Mr. al-Marri was subsequently indicted in federal district court (Southern

District of New York) on charges of credit card fraud, bank fraud, identity theft,

and making false statements to the FBI. Id. The charges were eventually

dismissed on the ground of improper venue. Id. The government immediately

                                         -2-
refiled an indictment in another federal district (Central District of Illinois). Id.

Accordingly, Mr. al-Marri was transferred back to Peoria County Jail. Id.

      On June 23, 2003, President George W. Bush declared Mr. al-Marri to be

an “enemy combatant” and ordered Mr. al-Marri’s transfer to the Department of

Defense. Id. at 7, 215, 231. In response, the Illinois federal district court

dismissed the indictment with prejudice. Id. at 7.

      As an enemy combatant, Mr. al-Marri was held at the Consolidated Naval

Brig in Charleston, South Carolina for over five years and eight months. Id. He

repeatedly challenged the constitutionality of his detention. Id. The Fourth

Circuit held that Mr. al-Marri’s military detention was an unconstitutional

violation of his Due Process rights. al-Marri v. Pucciarelli, 534 F.3d 213, 216

(4th Cir. 2008) (en banc) (affirming al-Marri v. Wright, 487 F.3d 160 (4th Cir.

2007)). On appeal, however, the Supreme Court vacated the Fourth Circuit’s

decision as moot because Mr. al-Marri had been transferred back to civilian

custody pursuant to a Presidential order. al-Marri v. Spagone, 555 U.S. 1220

(2009).

      On February 26, 2009, a federal grand jury in Illinois indicted Mr. al-Marri

on two counts of providing material support or resources to a designated foreign

terrorist organization. 18 U.S.C. § 2339B(a)(1); Aplt. App. 8. On March 10,

2009, the Secretary of Defense turned Mr. al-Marri over to the U.S. Marshals

Service. Aplt. App. 8. After a detention hearing, Mr. al-Marri was denied bail

                                          -3-
and transferred to Illinois, where he was held at a federal correctional institution.

Id.

      On April 30, 2009, Mr. al-Marri entered a plea agreement in which he pled

guilty to one count of violating 18 U.S.C. § 2339B(a)(1). Id. at 232–51. The

Guideline range was 292–360 months, but the statutory maximum was 180

months. Id. at 151.

      Prior to sentencing, the BOP had indicated that under 18 U.S.C. § 3585(b),

it would only grant prior custody credit for the time Mr. al-Marri spent in pretrial

criminal detention between January 28, 2002 and June 23, 2003, and the period

after he was transferred back to civilian custody, from March 10, 2009 through

the date of sentencing. Id. at 9–10, 166, 172–74. In other words, the BOP was

unwilling to credit Mr. al-Marri for the 71 months he was held as a material

witness and an enemy combatant. Id.

      Taking into account the BOP’s indication that it would deny Mr. al-Marri

credit for the 71 months, the sentencing court explained that it would reduce the

maximum period of confinement (180 months) “by 71 months to reflect the

periods of time for which he will not be credited by the [BOP].” Id. at 152. The

court further reduced the sentence by nine months “to reflect the very severe

conditions of part of his confinement at the Naval Brig.” Id. Thus, the court

sentenced Mr. al-Marri to 100 months’ imprisonment. Id. at 145–56.

      After sentencing, the BOP credited Mr. al-Marri under § 3585(b) for both

                                         -4-
periods spent in pretrial criminal detention (totaling 745 days), but refused to

grant prior custody credit for the 71 months during which Mr. al-Marri was held

as a material witness and an enemy combatant. Id. at 9–10, 154. Pursuant to 18

U.S.C. § 3624(b)(1), which entitles a prisoner to 54 days of GCT for each year

served, the BOP granted Mr. al-Marri 108 days of GCT for his 745 days of prior

custody credit. Id. at 9–10, 154–56. Consistent with its denial of prior custody

credit for the 71 months, the BOP declined to grant Mr. al-Marri GCT for the

period he was held as a material witness and an enemy combatant. Id. at 9–10.

      Through counsel, Mr. al-Marri wrote two letters to the BOP challenging the

calculation of GCT. Id. at 180–83. The BOP reiterated the basis of its

calculation, and advised that Mr. al-Marri could challenge the calculation through

an administrative appeal. Id. at 184. Mr. al-Marri then brought an administrative

appeal, which the BOP denied on August 27, 2010, explaining that Mr. al-Marri’s

time as a material witness and an enemy combatant did not constitute “official

detention,” under 18 U.S.C. § 3585(b). Id. at 185–86. Therefore, the BOP

concluded he was not entitled to GCT under 18 U.S.C. § 3624(b). Id.

      Mr. al-Marri then filed the instant § 2241 petition seeking a statutory

calculation of GCT for the 71 months he was detained or, in the alternative, a

calculation as an equitable remedy for his allegedly unconstitutional detention.

Id. at 5–18. After oral argument, the district court denied the petition. Id. at

55–57. The court held that: 1) the GCT “statute does not become applicable until

                                         -5-
a prisoner begins service of the sentence imposed by the court,” and 2) “there is

no authority for this court to grant the requested [equitable] relief.” Id. at 56–57.

Mr. al-Marri sought reconsideration. Id. at 59–77. In denying reconsideration,

the district court again stated that the BOP had correctly calculated Mr. al-Marri’s

statutory entitlement to GCT. Id. at 104. Further, assuming it had the equitable

authority to order the BOP to make a calculation “contrary to its statutory duty,”

the district court expressly declined to exercise that power. Id.



                                     Discussion

      When reviewing the denial of a habeas petition under § 2241, we review

the district court’s legal conclusions de novo and accept its factual findings unless

clearly erroneous. Standifer v. Ledezma, 653 F.3d 1276, 1278 (10th Cir. 2011).

A.    Statutory Entitlement to Good Time Credit

      Mr. al-Marri argues that the sentencing court’s 71-month reduction

qualifies as “prior custody credit” under § 3585(b), thereby entitling him to a

calculation of GCT under § 3624(b). But this argument is foreclosed by the

Supreme Court’s decision in United States v. Wilson, 503 U.S. 329 (1992).

Wilson held that a sentencing court does not have authority to grant prior custody

credit under § 3585. Id. at 333 (emphasis added); see United States v. Jenkins, 38

F.3d 1143, 1144 (10th Cir. 1994). Instead, that authority is vested with the

Attorney General, acting through the BOP. See Wilson, 503 U.S. at 335; Jenkins,

                                         -6-
38 F.3d at 1144; see also United States v. Peters, 470 F.3d 907, 909 (9th Cir.

2006).

         The sentencing court accounted for the 71-month period Mr. al-Marri was

held as a material witness and an enemy combatant by reducing the maximum

period of confinement. Were we to accept Mr. al-Marri’s argument and deem the

sentencing court’s decision to be a § 3585(b) credit, the proper recourse would be

to vacate the sentence and remand, thereby exposing Mr. al-Marri to the

possibility of an additional 71 months. See Jenkins, 38 F.3d at 1144 (vacating

district court’s award of sentence credit). Instead, we construe the sentencing

court’s decision as an exercise of its discretion under 18 U.S.C. § 3553(a)(2)(A).

         Additionally, credit is only available for “a term of imprisonment for any

time . . . spent in official detention prior to the date the sentence commences . . .

as a result of the offense for which the sentence was imposed.” 18 U.S.C.

§ 3585(b) (emphasis added). 1 Here, Mr. al-Marri was held for 71 months as a

material witness and an enemy combatant. The detention of enemy combatants is

an exercise of Executive power—it is not dependent on a showing that the

detainee has violated civilian law. Moreover, the Court has explained that the


         1
         Section 3585 repealed an earlier statute that provided credit “for any
days spent in custody in connection with the offense or acts for which the
sentence was imposed.” Bloomgren v. Belaski, 948 F.2d 688, 689–90 (10th Cir.
1991) (quoting 18 U.S.C. § 3568 (1976), repealed by the Comprehensive Crime
Control Act of 1984, Pub. L. No. 98-473, tit. II, § 212(a)(2), 98 Stat. 1987)
(emphasis added).

                                          -7-
purpose of detention is preventative rather than punitive. See Hamdi v.

Rumsfeld, 542 U.S. 507, 518–19 (2004). Mr. al-Marri was detained because the

President declared him to be an enemy combatant; he was not detained for an

alleged violation of the federal criminal code. See United States v. Aslan, 644

F.3d 526, 532 (7th Cir. 2011) (denying credit where “time in state custody was

not as a result of the offense for which the federal sentence was imposed,” and

noting that “no federal charges were even filed until after [petitioner] was

released from state custody”); cf. Bloomgren v. Belaski, 948 F.2d 688, 690 (10th

Cir. 1991). Similarly, Mr. al-Marri was held under 18 U.S.C. § 3144 as a

material witness—not as punishment for providing material support to a terrorist

organization. In short, neither period of Mr. al-Marri’s 71-month detention met §

3585(b)’s express requirement, and he was therefore ineligible for GCT.

      Next, Mr. al-Marri argues that if the 71-month sentencing reduction does

not constitute “prior custody” under § 3585(b), the “period should still be

awarded because . . . it is undoubtedly ‘time served’ and therefore part of the

‘term of imprisonment’ within the meaning of the GCT, § 3624(b).” Aplt. Br. 23

n.4. For the purpose of this appeal, we will assume that § 3624(b)’s phrase “term

of imprisonment” is ambiguous—i.e., it could be interpreted as encompassing

presentence custody credited under § 3585(b) or presentence custody as reflected

in a sentence crafted under § 3553. However, even assuming the statute is

ambiguous, we believe the BOP reached the most logical conclusion.

                                        -8-
      In its response to Mr. al-Marri’s appeal, the BOP explained that it had

awarded GCT based on Mr. al-Marri’s official detention period under § 3585(b).

See Aplt. App. 186. As the Second Circuit recently held, “the most natural

reading of the statute is that a defendant is eligible for GCT only as to the ‘term

of imprisonment’ which constitutes the defendant’s federal sentence as defined by

§ 3585.” Lopez v. Terrell, 654 F.3d 176, 184 (2d Cir. 2011) (holding that GCT

cannot be awarded where the sentencing court has granted an adjustment under

U.S.S.G. § 5G1.3(b) for presentence custody because that time does not constitute

part of the defendant’s federal sentence); see also Schleining v. Thomas, 642 F.3d

1242, 1247–49 (9th Cir. 2011) (same). We likewise find the BOP’s reading of the

statute to be the most natural, and therefore defer to its persuasive interpretation. 2

See id. at 190 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)); see

also Izzo v. Wiley, 620 F.3d 1257, 1261 (10th Cir. 2010).

      Finally, we are not persuaded by Mr. al-Marri’s argument that Barber v.

Thomas, 130 S. Ct. 2499 (2010) compels a different outcome. Barber held that

“the phrase ‘term of imprisonment’ . . . refers to prison time actually served

rather than the sentence imposed by the judge.” Id. at 2506–07. Significantly,

      2
        Consistent with the Lopez decision—and construing the facts in Mr. al-
Marri’s favor—we will also assume that the BOP’s implementing regulation, 28
C.F.R. § 523.20, does not resolve the statutory ambiguity. See Lopez, 654 F.3d at
181–82. Thus, we do not apply the more deferential Chevron standard to the
BOP’s interpretation. See id. at 183; see also Christensen v. Harris Cnty., 529
U.S. 576, 587 (2000). Instead, we consider whether the agency’s informal
interpretation has the “power to persuade.” Christensen, 529 U.S. at 587.

                                          -9-
Barber did not involve a claim for GCT based on a time period outside the

sentence imposed—its holding concerned only time served within the petitioner’s

sentence. Perhaps more important, the Barber Court deferred to the BOP’s

calculation system which, according to the Court, “reflects the most natural

reading of the statute.” Id. at 2502. Similarly, we find that the BOP’s calculation

of GCT for Mr. al-Marri comports with the most natural reading of the

statute—that GCT applies only to time served under the actual sentence. We

therefore defer to the BOP’s interpretation.

B.    Good Time Credit As an Equitable Remedy

      As an alternative to his statutory claim, Mr. al-Marri argues that the BOP’s

refusal to calculate GCT for his unlawful detention entitles him to equitable

relief. In denying reconsideration, the district court explained that its “ruling was

and is that the [BOP] correctly determined that in awarding good time credits the

term of imprisonment began when the sentence was imposed.” Aplt. App. 104.

Further, the district court stated that even assuming it had “equitable power to

direct the [BOP] to act contrary to its statutory duty, the request is rejected.” Id.

As the district court explained, “[t]he sentencing court has, in effect, addressed

the issue of the Petitioner’s confinement as a material witness and as an enemy

combatant in harsh conditions by its substantial departure from the Sentencing

Guidelines.” Id.

      We review the district court’s decision whether to exercise its equitable

                                         - 10 -
powers for abuse of discretion. Clark v. State Farm Mut. Auto. Ins. Co., 433 F.3d

703, 709 (10th Cir. 2005). “A district court abuses its discretion when it renders

a judgment that is arbitrary, capricious . . . or manifestly unreasonable.” United

States v. Damato, 672 F.3d 832, 838 (10th Cir. 2012) (quotation omitted).

      Whether a district court is authorized to order a GCT calculation contrary

to the BOP’s statutory duty is hardly clear. See Aplee. Br. 38–40. But even

assuming such power, the district court did not abuse its discretion in declining to

exercise it. As the district court explained, the BOP followed its statutory duty.

Moreover, the sentencing court thoroughly considered, and clearly accounted for,

Mr. al-Marri’s 71-month detention in arriving at a sentence. Therefore, the

district court’s decision not to exercise its purported equitable power was not

arbitrary, capricious, or unreasonable.

      AFFIRMED. We GRANT the government’s motion to strike pages 202–13

from appellant’s appendix because the material was not before the district court.

Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1022 (10th Cir. 2002).




                                          - 11 -
12-1230, Al-Marri v. Davis

McKAY, Circuit Judge, concurring:

      I join in the court’s opinion with the exception of its unnecessary resolution

of whether Mr. al-Marri was eligible for prior custody credit under 18 U.S.C. §

3585(b) for the period of time he was detained as an enemy combatant. As the

majority notes, the sentencing court did not have authority to grant prior custody

credit under § 3585(b). (Majority Op. at 6.) The authority to do so is vested with

the Attorney General, acting through the BOP. (Id.) To the extent Mr. al-Marri

maintains he was improperly denied prior custody credit for his detention as an

enemy combatant, the appropriate means by which to raise that argument is

through a § 2241 petition challenging the BOP’s refusal to award such credit. See

Heddings v. Garcia, 491 F. App’x 896, 898 (10th Cir. 2012) (arguing in a § 2241

petition “that the BOP failed to properly credit prior custody/time served”

(internal quotation marks omitted)). Mr. al-Marri has not brought such a

challenge—he argues only that a calculation of good credit time was required

because his detention “meet[s] the requirements for prior custody credit under 18

U.S.C. § 3585(b).” (Appellant’s Opening Br. at 23.) Accordingly, the question

of whether the BOP erred in refusing to award prior custody credit for Mr. al-

Marri’s detention as an enemy combatant is not properly before us. Nor do we

have reason to consider whether the sentencing court should have awarded such

credit—something it unquestionably lacked authority to do. I therefore consider

the majority’s discussion of this issue dicta. I would leave to another day, when
resolution of this issue is fully and squarely required in a case before us, any

consideration of the matter.

      Without reaching the merits of Mr. al-Marri’s argument, I do note,

however, that I see nothing in the language of 18 U.S.C. § 3585(b) that would

foreclose the possibility that detention as an enemy combatant could, under the

proper circumstances, qualify for prior custody credit.




                                        -2-
