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


7-19-2005

Hines v. Nash
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1059




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"Hines v. Nash" (2005). 2005 Decisions. Paper 818.
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DPS-176                                                      NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   NO. 05-1059
                               ___________________

                                 JEROD L. HINES,

                                          Appellant

                                            v.

                       FORMER WARDEN JOHN NASH;
                      CURRENT WARDEN RONNIE HOLT
                    ____________________________________

                  On Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                            (D.C. Civ. No. 04-cv-02748)
                    District Judge: Honorable James M. Munley
                  _______________________________________

                   Submitted On Motion For Summary Affirmance
                    Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  March 24, 2005

            Before: ROTH, BARRY AND SMITH, CIRCUIT JUDGES

                                (Filed: July 19, 2005)


                             _______________________

                                     OPINION
                             _______________________

PER CURIAM

     Jerod L. Hines appeals the order of the United States District Court for the Middle
District of Pennsylvania denying his habeas petition filed pursuant to 28 U.S.C. § 2241.

We will affirm.

       Hines is incarcerated at the Federal Correctional Institution-Schuylkill in

Pennsylvania. In his habeas petition, he states that he pleaded guilty and was sentenced in

2000 to “concurrent terms of (135) months of imprisonment following his plea agreement

of guilty to . . . violations of 21 U.S.C. §§ 841(a)(1), 860 and 18 U.S.C. § 922(g)(1),” in

his criminal case in the United States District Court for the Eastern District of

Pennsylvania. Hines also states that he has been in custody since September 8, 1999.

       Hines challenges the calculation of his good conduct time credits by the Bureau of

Prisons (“BOP”). He asserts that prisoners serving sentences greater than one year are

entitled to earn up to fifty-four days of good conduct time credit at the end of each year

under 18 U.S.C. § 3624(b), based on the term of the sentence imposed. However, the

BOP’s interpretation of the statute, as implemented in BOP Program Statement 5880.28

and as applied to him, is that the fifty-four days of credit per year is based on time

actually served rather than the sentence imposed, yielding a computation of forty-seven

days of credit for each year of an imposed sentence. The District Court sua sponte denied

the habeas petition. Relying on the decisions of the Seventh and Ninth Circuit Courts of

Appeals in White v. Scibana, 390 F.3d 997 (7th Cir. 2004), and Pacheco-Camacho v.

Hood, 272 F.3d 1266 (9th Cir. 2001), the District Court concluded that the BOP’s method

of calculating good conduct time credit is a reasonable interpretation of section 3624(b).



                                              2
Hines appeals. The appellee has filed a motion to summarily affirm the order of the

District Court.

       Section 3624(b) provides in relevant part:

       [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
       toward 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, subject to determination by the Bureau of
       Prisons that, during that year, the prisoner has displayed exemplary compliance
       with institutional disciplinary regulations.

18 U.S.C. § 3624(b). The BOP interprets the statute as allowing fifty-four days of good

conduct time credit “for each year served.” 28 C.F.R. § 523.20. To effectuate its

interpretation of the statute, the BOP employs a formula for calculating the credit,

considering the fact that an inmate’s time actually served becomes incrementally shorter

each year as he is awarded good conduct time credit. See White, 390 F.3d 997 at 1000

(explaining the BOP’s formula).

       Hines argues in his habeas petition that the BOP’s application of the statute

contravenes Congress’s unambiguous intent that inmates serving sentences greater than

one year are entitled to receive fifty-four days of good conduct time credit per year of the

sentence imposed. He contends that the plain language of the statute—specifically, the

phrase “term of imprisonment”—refers to the sentence imposed. We disagree. As we

explained in our recent decision in O’Donald v. Johns, 402 F.3d 172 (3d Cir. 2005), the

phrase “term of imprisonment” is used several times in section 3624(b), and, contrary to



                                             3
Hines’s assertion, the phrase as used in the context of awarding credit “up to 54 days at

the end of each year of the prisoner’s term of imprisonment” appears to refer to time

actually served. This is so because section 3624(b) contemplates a process of awarding

credit at the end of each year of imprisonment, based on an inmate’s exemplary

compliance with prison disciplinary regulations—that is, while incarcerated. The earning

of credit each year reduces the amount of time the inmate will ultimately serve in prison.

To calculate credit based on the sentence imposed, rather than a retrospective annual

assessment of the inmate’s behavior while in prison, would allow an inmate to earn credit

for time that he was not in prison. This incongruous result weighs against concluding that

the phrase “term of imprisonment” unambiguously refers to the sentence imposed and led

to our determination that the meaning of section 3624(b) is ambiguous in this regard.

O’Donnell, 402 F.3d at 174.1

       Because the meaning of section 3624(b) is ambiguous, we must defer to the BOP’s

interpretation if it is reasonable. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

467 U.S. 837, 844 (1984). We held in O’Donald that the BOP’s interpretation of section


  1
    In support of his contention that section 3624's plain meaning is to calculate good
conduct time credit based on the sentence imposed, Hines cited Senator Joseph Biden’s
comments in the Congressional Record at 141 Cong. Rec. S2348-01, S2349 (Feb. 9,
1995) as supporting legislative history. We are unpersuaded. As observed by the First
Circuit Court of Appeals, we note that these comments were made more than a decade
after the statute’s enactment. Moreover, we similarly conclude that Senator Biden’s
references to serving a certain percentage of an imposed sentence indicates a shorthand
citation to the calculation of credit under the statutory scheme. Perez-Olivo v. Chavez,
394 F.3d 45, 51 n.3 (1st Cir. 2005).

                                             4
3624(b) is reasonable and comports with the statutory language, effectuates the statutory

design, establishes a fair prorating scheme, enables inmates to calculate with reasonable

certainty their remaining time to serve, and prevents inmates from earning credit for time

not spent in prison. O’Donald, 402 F.3d at 174 (citing Perez-Olivo v. Chavez, 394 F.3d

45, 53 (1st Cir. 2005); White, 390 F.3d at 1003; and Pacheco-Camacho, 272 F.3d at

1270-71).2

       We will grant the appellee’s motion for summary affirmance and will summarily

affirm the order of the District Court.




  2
    In support of his habeas petition, Hines also argued that if section 3624(b) is
ambiguous, the District Court should have applied the rule of lenity and resolved the
ambiguity in his favor. As noted in O’Donald, we do not resort to the rule of lenity
where, as here, we can otherwise resolve the ambiguity of the statute. See United States
v. Shabani, 513 U.S. 10, 17 (1994).
                                            5
