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THONG v. MENIFEE

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 ...


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