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Frank Lopez v. Duke Terrell

July 13, 2011

FRANK LOPEZ, PETITIONER-APPELLEE,
v.
DUKE TERRELL, AS WARDEN, METROPOLITAN CORRECTIONAL CENTER, NEW YORK, JOE NORWOOD, AS REGIONAL DIRECTOR, NORTHEAST REGION, FEDERAL BUREAU OF PRISONS, RESPONDENTS-APPELLANTS.



Appeal from a judgment of the United States District Court for the Southern District of New York (Holwell, J.), granting Frank Lopez's 28 U.S.C. § 2241 petition for a writ of habeas corpus.

The opinion of the court was delivered by: Hall, Circuit Judge:

10-2079-pr

Lopez v. Terrell

Argued: April 29, 2011

Before: NEWMAN, CALABRESI, HALL, Circuit Judges.

On appeal, the Federal Bureau of Prisons ("BOP") argues that its decision not to award Good Conduct Time under 18 U.S.C. § 3624(b) for presentence time credited to another sentence is consistent with federal sentencing law and should be accorded deference. We conclude that the BOP's interpretation of 18 U.S.C. § 3624(b) is persuasive under Skidmore v. Swift & Co., 323 U.S. 134 (1944), and defer to the agency's interpretation. We therefore REVERSE the judgment of the district court and REMAND with instructions to dismiss the petition.

REVERSED AND REMANDED.

Judge Calabresi concurs in a separate opinion.

Petitioner-Appellee Frank Lopez challenges the manner by which the Federal Bureau of Prisons ("BOP") calculates Good Conduct Time ("GCT") under 18 U.S.C. § 3624(b). Lopez maintains he should be eligible to receive GCT for the 94 months he spent in state and federal custody prior to the date on which he was sentenced in district court (in addition to his time in custody following sentencing), even though those 94 months were credited to a prior state sentence. The BOP disagrees, asserting that Lopez can accrue GCT only as to the 38 months he spent in custody after he was sentenced.

This appeal presents, therefore, a question of statutory interpretation: whether 18 U.S.C. § 3624(b), which provides that an inmate may receive GCT "toward the service of the prisoner's sentence . . . of up to 54 days at the end of each year of the prisoner's term of imprisonment," permits the award of GCT for presentence custody served by an inmate that, under 18 U.S.C. § 3585 (b), cannot be credited to the defendant's federal sentence. The district court (Holwell, J.), agreeing with Lopez, held that the phrase "term of imprisonment" under 18 U.S.C. § 3624(b) means--and that an inmate can accrue GCT for--the total time served for a federal offense, both before and after sentencing, regardless of whether the inmate's presentence custody is credited to another sentence. The BOP challenges this ruling. It contends that as used in § 3624(b), an inmate's "term of imprisonment" is coterminous with his or her federal sentence as defined under 18 U.S.C. § 3585, such that he or she is eligible for GCT only as to the period of incarceration following the date of sentencing, as well as for any presentence custody credited to that period under § 3585(b).

We conclude that the BOP's interpretation of 18 U.S.C. § 3624(b) is persuasive under Skidmore v. Swift & Co., 323 U.S. 134 (1944), and defer to the agency's interpretation. We therefore REVERSE the judgment of the district court granting Frank Lopez's 28 U.S.C. § 2241 petition for a writ of habeas corpus and REMAND with instructions to dismiss the petition.

BACKGROUND

I. The Statutory Framework Governing Good Conduct Time

We are concerned here principally with the interpretation and interaction of two statutes. The first, 18 U.S.C. § 3624(b), governs GCT, and provides in 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)(1). The second, 18 U.S.C. § 3585, titled, "Calculation of a term of ...


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