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THONG v. MENIFEE

United States District Court, S.D. New York


September 26, 2005.

KHIN C. THONG, Petitioner,
v.
FREDRICK MENIFEE, Warden, Respondent.

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE DENISE L. COTE, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

  Khin C. Thong ("Thong") has made an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Through the application, Thong seeks a recalculation of the amount of statutory good conduct time ("GCT") credit awarded to him by the United States Bureau of Prisons ("BOP") in accordance with 18 U.S.C. § 3624(b)(1) and the regulations established thereunder. According to Thong, BOP has misinterpreted the statute and, in so doing, has devised a formula for calculating GCT credit that deprives Thong of the actual amount of statutory GCT credit to which he is entitled.

  The respondent opposes Thong's application for a writ of habeas corpus. He contends that BOP has calculated the amount of GCT credit to which Thong is entitled accurately.

  II. BACKGROUND

  On March 30, 1999, Thong was sentenced in the United States District Court for the District of Massachusetts to 132 months in prison for violating the laws of the United States respecting controlled substances. 18 U.S.C. § 3624 directs that BOP release a prisoner in its custody from confinement "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)." 18 U.S.C. § 3624(a). According to the relevant statute, a prisoner in BOP's custody may have his or her term of imprisonment reduced annually, if the prisoner does not run afoul of any BOP institutional disciplinary regulations.

 

. . . Subject to paragraph (2), 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. Subject to paragraph (2), if the Bureau determines that, during that year, the prisoner has not satisfactorily complied with such institutional regulations, the prisoner shall receive no such credit towards service of the prisoner's sentence or shall receive such lesser credit as the Bureau determines to be appropriate. In awarding credit under this section, the Bureau shall consider whether the prisoner, during the relevant period, has earned, or is making satisfactory progress toward earning, a high school diploma or an equivalent degree. Credit that has not been earned may not later be granted. Subject to paragraph (2), credit for the last year or a portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.
18 U.S.C. § 3624(b)(1).

  In order to implement the provisions of 18 U.S.C. § 3624(b)(1), BOP enacted a regulation. The regulation is codified at 28 C.F.R. § 523.20. In its most pertinent part, the regulation provides the following:

* * *
Pursuant to 18 U.S.C. § 3624(b) . . . (a) When considering good conduct time for an inmate serving a sentence for an offense committed on or after April 26, 1996, the Bureau shall award: (1) 54 days credit for each year served (prorated when the time served by the inmate for the sentence during the year is less than a full year) if the inmate has earned or is making satisfactory progress toward earning a GED credential or high school diploma; or (2) 42 days credit for each year served (prorated when the time served by the inmate for the sentence during the year is less than a full year) if the inmate has not earned or is not making satisfactory progress toward earning a GED credential or high school diploma. (b) The amount of good conduct time awarded for the year is also subject to disciplinary disallowance (see Tables 3 through 6 in § 541.13 of this chapter).
28 C.F.R. § 523.20

  BOP enacted its regulation through a notice and comment procedure, as provided for in the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. In addition, in order to facilitate the computation of sentences by its personnel, in July 1999, BOP issued a Program Statement. Through that document, BOP disseminated its "Sentence Computation Manual." The Program Statement explains in detail the formula through which BOP calculates a prisoner's GCT credit under 18 U.S.C. § 3624(b). BOP's GCT formula measures the amount of GCT credit a prisoner will earn on a daily basis by dividing 54 days, the maximum number of GCT credit days that can be awarded annually for serving a prison sentence, by 365 days, the number of days in one year. By performing this calculation, one obtains the daily rate at which a prisoner can garner GCT credit for serving one day of a sentence. When the calculation is performed (54/365), it yields.148. Inasmuch as .148 is less than one full day, GCT credit cannot be awarded for serving one day of a sentence. A prisoner must serve 7 days before the prisoner can achieve one day of GCT credit.*fn1

  Pursuant to 18 U.S.C. § 3624(b), no GCT credit can be awarded by BOP on a sentence of one year or less. As a consequence, the shortest sentence for which a person can be awarded GCT credit is a sentence of one year and one day. Therefore, a person who is sentenced to 366 days (one year and one day) imprisonment, must serve 319 days, and must receive not more than 47 days of GCT credit in order to satisfy the imposed sentence. This is so because 319 X .148 yields 47 days. Thus, after serving 319 days in prison, a person who does not incur any disciplinary infractions, for which GCT credit is forfeited, will earn 47 days of GCT credit at the rate of .148 of a day for each day the person is incarcerated. When 319 days are combined with 47 days of GCT credit, a prisoner will have served a sentence of 366 days. BOP employed its GCT credit calculation formula to Thong's sentence and projected that he would earn 517 days of GCT credit, unless he received a disciplinary penalty.

  Thong contends that BOP's formula for calculating GCT credit deviates from the unambiguous text of 18 U.S.C. § 3624(b). According to Thong, the statute permits a prisoner who is serving a "term of imprisonment," in excess of one year, to garner up to 54 days of GCT credit for each year of the prisoner's "term of imprisonment." Thong maintains that the phrase "term of imprisonment" means the sentence imposed upon a person by the sentencing court. Therefore, according to Thong, GCT credit may be determined by simply multiplying 54 by the number of years that comprise the sentence imposed by the sentencing court. In Thong's case, the sentence imposed on him, 132 months, is equivalent to 11 years. Using the GCT credit formula advocated by Thong would, Thong contends, entitle him to receive 594 days of GCT credit (54 X 11), as long as he does not incur any institutional disciplinary penalties.

  In support of his position, Thong relies principally upon the decision rendered in White v. Scibana, 314 F. Supp. 2d 834 (W.D. Wis. 2004). In that case, the court construed the phrase "term of imprisonment" to mean the sentence imposed by the sentencing court. The court found, therefore, that 18 U.S.C. § 3624 unambiguously entitles a BOP prisoner to 54 days of GCT credit for each year of the sentence imposed upon the prisoner, with adjustments to be made for any institutional disciplinary violations a prisoner might incur. However, several months after Thong filed the instant petition, the Seventh Circuit Court of Appeals reversed the district court's decision upon which Thong relied. See White v. Scibana, 390 F.3d 997 (7th Cir. 2005).

  The respondent also maintains that the language found in 18 U.S.C. § 3624(b) is unambiguous. In the respondent's view, since the statute directs that GCT credits be assessed "at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term . . . [and that] credit for the last year or a portion of the year of the term of imprisonment" is to be prorated, the petitioner's method for calculating GCT credit cannot be correct because: (1) it ignores congressional intent that GCT credit be earned by prisoners during the service of their sentence, so long as they comply satisfactorily with institutional regulations; (2) it would permit prisoners to receive GCT credit for time they never actually served in prison; and (3) it overlooks that provision of the statute that speaks to the need to prorate the last year of the term. According to the respondent, it is only when GCT credit is based on the time a person actually serves in prison that it becomes necessary to prorate the final year of the term of imprisonment. In the respondent's view, if GCT credit were simply a function of multiplying the sentence imposed by 54, the final year of the term of imprisonment would simply result in an award of the maximum number of GCT credit days, 54, and proration would never have to be considered. The respondent contends that BOP's formula for calculating GCT credit is true to the express language of the statute and, when the formula is applied to Thong's term of imprisonment, it results in his receiving 517 days credit for GCT.

  Recognizing that the Court might find that the phrase "term of imprisonment" used in 18 U.S.C. § 3624(b) is ambiguous, with respect to whether it refers to: (a) the time actually served by a BOP prisoner; or (b) the length of a sentence imposed by a sentencing court, the respondent argues that BOP's interpretation of 18 U.S.C. § 3624(b) should be accorded substantial deference by the Court, since BOP is the agency charged with administering 18 U.S.C. § 3624(b).

  III. DISCUSSION

  Judicial review of an administrative agency's interpretation of a statute is typically deferential. In Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984), the Supreme Court noted that it had "long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations." Chevron, 467 U.S. at 844, 104 S. Ct. at 2782. Congress can delegate to an administrative agency the power to make rules that carry the force of law. The authority to make such rules may be demonstrated in a variety of ways, including through an agency's notice and comment rule-making power. See United States v. Mead Corp., 533 U.S. 218, 226-227, 121 S. Ct. 2164, 2171 (2001). When an administrative agency promulgates rules and regulations interpreting a statute through its notice and comment rule-making power, such as BOP did in connection with 18 U.S.C. § 3624(b), such rules or regulations are entitled to Chevron's deference. Id.

  Chevron requires that a court engage in a two-step inquiry when it reviews an administrative agency's construction of a statute which the agency administers. "First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 842-843, 104 S. Ct. at 2781-82. Therefore, "[if] a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect." Id. at 843 n. 9, 2782 at n. 9. However, in those circumstances where Congress has not addressed the issue squarely, the authority to fill in any gap is delegated to the applicable administrative agency and a court is duty-bound to give controlling weight to the administrative agency's interpretation unless it is "arbitrary, capricious or manifestly contrary to the statute." Chevron, 467 U.S. at 843-844, 104 S. Ct. at 2782.

  Accordingly, in the instant case, it must first be determined whether Congress has spoken directly to the precise question at issue: the meaning of the phrase "term of imprisonment." If the statute is silent or ambiguous with respect to the meaning of that phrase, it then falls to the Court to determine whether BOP's interpretation of that statutory language is based on a permissible construction of the statute. A review of 18 U.S.C. § 3624 reveals that Congress did not define the phrase "term of imprisonment" in the statute. Therefore, the Court must determine whether that phrase, as used in the statute, is ambiguous.

  As noted above, Thong contends that the phrase "term of imprisonment," as used in 18 U.S.C. § 3624(b), is unambiguous, that the phrase means the sentence imposed by the sentencing court, and does not mean the time served by a BOP prisoner. BOP also contends that the phrase "term of imprisonment," as used in the relevant statute, is unambiguous. However, BOP maintains that the phrase means the time actually served by a prisoner, and not the sentence imposed by the sentencing court.

  The Court finds that the phrase "term of imprisonment," which appears four times in 18 U.S.C. § 3624(b) and seven times in the entire statute, is susceptible to more than one meaning. In certain parts of the statute the phrase may be read reasonably to refer to the sentence imposed by the sentencing court. At other points in the statute, the phrase may also be read reasonably to mean the time served by a BOP prisoner. As one court explained, the phrase "means sentence imposed in § 3624(a) and the first two times it appears in subsection (b); the third time it appears in that subsection, however, the phrase means actual time served. Thus, ? BOP's interpretation of § 3624(b) reads: `a prisoner who is serving a term of imprisonment [that is, the sentence imposed] of more than 1 year other than a term of imprisonment [that is, the sentence imposed] for the duration of the prisoner's life, may receive credit toward the service of the prisoner's sentence, beyond the time served, up to 54 days at the end of each year of the prisoner's term of imprisonment [that is, the actual time served] beginning at the end of the first year of the term.'" Tash v. Zenk, No. 04 CV 4613, 2005 WL 503938, at *3 (E.D.N.Y. Feb. 14, 2005).

  If one were to adopt Thong's view, that at each point in the statute where the phrase "term of imprisonment" is found the phrase means the sentence imposed by the sentencing court, it would require that BOP, pursuant to 18 U.S.C. § 3624(d), provide a prisoner with clothing, funds and transportation when the prisoner is released from prison "on the expiration of the prisoner's term of imprisonment." 18 U.S.C. § 3624(d). Thong's view cannot be correct. This is evident because the phrase "term of imprisonment" in the context of 18 U.S.C. § 3624(d) can only mean the time actually served by a BOP prisoner. This is clear, since it would be illogical for BOP to provide a prisoner with the items referenced in that provision of the statute, clothing, transportation, etc., on the date that the prisoner's originally imposed sentence had expired because that date would occur after the prisoner had been released from custody as a result of the GCT credits the prisoner had amassed under 18 U.S.C. § 3624(b). Thong's view of how the phrase "term of imprisonment" should be construed "ignores the cardinal rule that statutory language must be read in context since a phrase gathers meaning from the words around it." General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 582, 124 S. Ct. 1236, 1238 (2004).

  For the foregoing reasons, the Court finds that the phrase "term of imprisonment" as used in 18 U.S.C. § 3624 is ambiguous. In doing so, the Court aligns itself with the First Circuit Court of Appeals, see Perez-Olivo v. Chavez, 394 F.3d 45 (1st Cir. 2005), the Third Circuit Court of Appeals, see O'Donald v. Johns, 402 F.3d 172 (3rd Cir. 2005), the Seventh Circuit Court of Appeals, White, supra, the Eighth Circuit Court of Appeals, see James v. Outlaw, 126 Fed. Appx. 758 (8th Cir. 2005) (unpublished opinion), and the Ninth Circuit Court of Appeals, see Pacheco-Commacho v. Hood, 272 F.3d 1266 (9th Cir. 2001), which have all found the phrase "term of imprisonment," as used in 18 U.S.C. § 3624, ambiguous. However, the Sixth Circuit Court of Appeals, in Williams v. Lamanna, 20 Fed. Appx. 360 (6th Cir. 2001) (unpublished opinion) found the statutory language was unambiguous.

  The Second Circuit Court of Appeals has not ruled on the matter as of yet. However, the court's decision in Pasciuti v. Drew, No. 9:04-CV-043, 2004 WL 1247813 (N.D.N.Y. June 2, 2004) has been appealed to the Second Circuit. In Pasciuti, the court found the phrase "term of imprisonment" ambiguous. Inasmuch as the Court finds the phrase "term of imprisonment," as used in 18 U.S.C. § 3624, ambiguous, the Court must determine whether BOP's construction of the statute is a permissible one. To assist the Court in answering that question, the respondent has directed the Court to a report of the United States Senate that discusses that portion of the Comprehensive Crime Control Act of 1984 that amended 18 U.S.C. § 3624(b). The report, S. Rep. No. 98-225 reprinted in 1984 U.S.C.C.A.N. 3182, contains language that the respondent alleges supports BOP's view of the meaning of the phrase "term of imprisonment." That language is reproduced below.

 

Current law provides a different rate of credit for good behavior for different lengths of prison terms, while section 3624(b) provides a uniform maximum rate of 36 days a year for all time in prison beyond the first year. . . . Section 3624(b) provides for automatic vesting of credit toward early release at the end of each year of satisfactory behavior. . . . S. Rep. No. 98-225 at 146-47, reprinted in 1984 U.S.C.C.A.N. 3182, 3329-30 (emphasis added by the respondent).
  While the respondent contends that the above-quoted language expresses Congress' clear intent that GCT be credited for time a prisoner actually serves in prison, the Court does not find that the above-quoted text speaks directly to, and thus resolves, the controversy surrounding the meaning of the phrase "term of imprisonment." Moreover, the respondent has "quoted" and emphasized by underscoring language that the Court does not find in the Senate report, specifically, the following: at the end of each year of satisfactory behavior. Thus, the Court is not persuaded, based upon the legislative history that has been provided to it by the respondent, that it would be reasonable and appropriate to rely upon the Senate report noted above in finding that BOP's construction of the relevant statute is in keeping with Congress' intent.

  Not to be outdone by the respondent, the petitioner also directs the Court's attention to legislative history, specifically, remarks made by Senator Joseph Biden that were recorded in the Congressional Record on February 9, 1995. On that date, the senator was addressing amendments to a crime bill (*S2349), that had been passed the previous year. In commenting about "crime and justice in America," the senator made reference to the fact that he had been a co-sponsor of the Comprehensive Crime Control Act of 1984 and, further, that through that Act, parole had been abolished and that a person sent to federal prison perforce of the Comprehensive Crime Control Act of 1984, would serve at least 85% of the person's prison sentence. Based on that statement, Thong argues that since 54 days "is 15% of 365 days," his view of how GCT credit should be calculated ought to be adopted by the Court.

  The Court cannot accede to that request. Given the fact that Senator Biden's comments, made many years after the statutory text at issue was adopted, do not speak directly to the issue of the meaning of the phrase "term of imprisonment," in the context of determining how GCT credits are to be calculated, the Court finds that it would not be reasonable to accord any weight to the senator's 1995 comments. Moreover, the Court is mindful that after-the-fact statements are typically not a reliable indicator of what Congress intended. See Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 579, 115 S. Ct. 1061, 1071 (1995). As a result, the Court finds no utility in the legislative history the parties have suggested that the Court consider in determining whether BOP's construction of 18 U.S.C. § 3624(b) is permissible.

  As noted earlier in this writing, Congress did not give BOP express authority in 18 U.S.C. § 3624 to interpret the phrase "term of imprisonment." However, implicit authority to interpret that phrase has been given to BOP by Congress. See Pacheco-Commacho, 272 F.3d at 1270; Perez-Olivo, 394 F.3d at 52. Through that implicit power, BOP, in the exercise of its notice and comment rule-making authority, adopted a regulation setting forth its view that the phrase "term of imprisonment," as used in 18 U.S.C. § 3624(b), should be read to mean the time a prisoner is serving the prisoner's sentence. Furthermore, BOP issued a Program Statement detailing the methodology its personnel should use to calculate GCT credit for BOP prisoners. Under these circumstances, the Court finds that BOP's interpretation of the phrase "term of imprisonment" must be accorded full Chevron deference. See Schurkman v. Bureau of Prisons, No. 04 Civ. 5341, 2004 WL 2997863, at *5 (S.D.N.Y. Dec. 28, 2004). As a consequence, "so long as the Bureau of Prisons' interpretation of [18 U.S.C. § 3624(b)] is reasonable, its interpretation [is to] be upheld. Schurkman, 2004 WL 2997863, at *5. In addition, where, as here, the legislative delegation to BOP to interpret the phrase "term of imprisonment" is implicit, rather than explicit, "a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." See Chevron, 467 U.S. at 844, 104 S. Ct. at 2782.

  The Court finds that BOP's interpretation of the phrase "term of imprisonment" is reasonable. BOP's determination to calculate GCT credit at the end of each year served by a prisoner is consistent with the express language of the statute that provides that GCT credit is to be given "at the end of each year," subject to BOP's determination that the prisoner has, during the relevant year, conformed to and displayed exemplary compliance with institutional disciplinary regulations. See 18 U.S.C. § 3624(b)(1). The interpretation of the phrase "term of imprisonment" urged upon the Court by Thong would permit him to receive GCT credit without any evaluation by BOP of his institutional conduct. This result is not consistent with the text of the relevant statute. Since the Court finds neither BOP's interpretation of 18 U.S.C. § 3624(b) nor its formula for calculating GCT credit unreasonable, and does not find BOP's interpretation of the statutory language is in contravention of congressional intent, the Court concludes that it is appropriate to defer to BOP's interpretation. See Mead Corp., 533 U.S. at 229, 121 S. Ct. at 2172. IV. RECOMMENDATION

  For the reasons set forth above, the petitioner's application for a writ of habeas corpus should be denied.

  V. FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Denise L. Cote, United States District Judge, 500 Pearl Street, Room 1040, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Cote. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

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