Filed: May 11, 2016
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-7698 THOMAS KEVIN HOGGE, Petitioner – Appellant, v. ERIC WILSON, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Senior District Judge. (3:14-cv-00314-JRS-RCY) Submitted: March 30, 2016 Decided: May 11, 2016 Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Reversed and remanded by unpublished per curiam opinio
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-7698 THOMAS KEVIN HOGGE, Petitioner – Appellant, v. ERIC WILSON, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Senior District Judge. (3:14-cv-00314-JRS-RCY) Submitted: March 30, 2016 Decided: May 11, 2016 Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Reversed and remanded by unpublished per curiam opinion..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7698
THOMAS KEVIN HOGGE,
Petitioner – Appellant,
v.
ERIC WILSON,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Senior
District Judge. (3:14-cv-00314-JRS-RCY)
Submitted: March 30, 2016 Decided: May 11, 2016
Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Reversed and remanded by unpublished per curiam opinion.
Thomas Kevin Hogge, Appellant Pro Se. Elizabeth Wu, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Kevin Hogge, a federal prisoner, appeals the
district court’s order granting summary judgment to Warden Eric
Wilson and dismissing Hogge’s 28 U.S.C. § 2241 petition. Hogge
argues that the Bureau of Prisons (“BOP”) improperly calculated
his release date by misapplying his Good Conduct Time (“GCT”).
We hold that the BOP’s calculation method is contrary to the GCT
statute, 18 U.S.C. § 3624. We therefore reverse the district
court’s judgment and remand with instructions that the district
court grant Hogge’s habeas petition.
I.
In the late 1990s, Hogge was sentenced for various criminal
offenses in Virginia state court. On June 28, 1999, while in
the primary custody of Virginia authorities, Hogge was
transferred into federal custody under a writ of habeas corpus
ad prosequendum. In February 2000, he was sentenced in federal
court to 96 months’ imprisonment for three counts of possession
of a firearm after a felony conviction in violation of 18 U.S.C.
§ 922(g)(1). The district court noted that “48 months shall be
consecutive to [Hogge’s] state sentence and 48 months shall be
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served concurrent to [his] state sentence.” E.R. 86. 1 After
sentencing, Hogge was returned to state custody. On May 1,
2013, he completed his state sentence and was released into the
exclusive custody of the federal government.
This case centers on the BOP’s rather byzantine method of
calculating Hogge’s start and release dates for his federal
sentence. Through a BOP employee, Forest Kelly, the Warden
explains the BOP’s method as follows.
First, the BOP determined a “target date” for release.
E.R. 57. To arrive at this date, the BOP began by ascertaining
the “tentative full term date” of the sentence by adding the
length of the consecutive sentence (48 months) to Hogge’s date
of release from his concurrent state sentence (May 1, 2013).
E.R. 57. This calculation yielded a tentative full term date of
April 30, 2017. Next, to arrive at the target release date, the
BOP reduced the tentative full term date by the amount of GCT
that can be earned during a 48-month sentence (188 days). Thus,
the BOP set Hogge’s target release date as October 24, 2016.
Second, the BOP determined the commencement date of Hogge’s
96-month sentence. To arrive at this date, the BOP set a
“preliminary start date” by subtracting the full 96-month
1 Record citations are to the Electronic Record on the
district court’s docket.
3
sentence from the target release date. The BOP calculated that
date as October 25, 2008. E.R. 57. Then, the BOP added to this
date the amount of GCT that can be earned during a 96-month
sentence—376 days. This resulted in a sentence-commencement
date of November 5, 2009.
This method of calculation has two results important to
this case. First, Hogge would serve an equal number of days
during the consecutive and concurrent portions of his sentence
if he were to receive all available GCT. Second, the GCT Hogge
earned during the concurrent portion of his sentence has no
effect on the total number of days he will spend in prison.
Instead, the GCT from Hogge’s concurrent sentence merely changes
the date that the BOP deems to be his federal sentence
commencement date.
Proceeding pro se, Hogge petitioned for a writ of habeas
corpus under § 2241. Relevant to this appeal, he argued that
the BOP improperly calculated the start and end dates of his
sentence. For the start date, Hogge argued that the BOP should
have simply subtracted 48-months from the day he was transferred
to the federal government’s custody. As for the target release
date, he maintained that the BOP should use the following
method. First, he said the BOP should calculate a tentative
full term date by adding 48 months to the date he was released
from state custody. Here, that date is April 30, 2017—the same
4
tentative full term date that the BOP used. Next, Hogge argued
that his target release date should be calculated by subtracting
from the tentative full term date all of the GCT he could earn
over a 96-month sentence. Hogge calculated that date as April
18, 2016.
The Warden filed a motion to dismiss, or, in the
alternative, for summary judgment. The magistrate judge
recommended that the district court grant the motion for summary
judgment. In doing so, he held that the BOP’s method of
calculation was entitled to Chevron deference. 2 The district
court subsequently adopted the magistrate judge’s report and
recommendation, granting the Warden’s motion for summary
judgment and dismissing Hogge’s petition.
This appeal followed.
II.
We review de novo the district court’s denial of habeas
corpus relief and its grant of summary judgment to the Warden.
Fontanez v. O’Brien, 807 F.3d 84, 86 (4th Cir. 2015); Bostick v.
Stevenson,
589 F.3d 160, 163 (4th Cir. 2009).
2 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837 (1984).
5
Hogge argues that the district court erred by analyzing the
BOP’s method of calculation under a Chevron-deference framework.
Instead, Hogge maintains that the Skidmore-deference framework
applies, and that the BOP’s method of calculation should be
rejected as contrary to federal law. 3 We agree.
A.
The Warden appears to rely on BOP Program Statement 5880.28
to justify its calculation method. Additionally, in granting
the BOP Chevron deference, the magistrate judge and the district
court looked to that program statement as well as Program
Statement 5160.05.
Not all agency interpretations of a statute are entitled to
Chevron deference. Instead, “such strong deference ‘is limited
to circumstances where (1) Congress has given the agency
authority to make rules carrying the force of law and (2) the
agency’s interpretation is rendered in the exercise of that
authority.’” Knox Creek Coal Corp. v. Sec’y of Labor, Mine
Safety & Health Admin., 811 F.3d 148, 158 (4th Cir. 2016)
(quoting A.T. Massey Coal Co. v. Holland,
472 F.3d 148, 166 (4th
Cir. 2006)); see United States v. Mead Corp.,
533 U.S. 218, 226–
27 (2001).
3 Skidmore v. Swift & Co., 323 U.S. 134 (1944).
6
While the BOP has the authority to resolve ambiguities in
the GCT statute, Yi v. Fed. Bureau of Prisons, 412 F.3d 526, 534
& n.5 (4th Cir. 2005), we have held that BOP program statements
are not the sort of agency interpretations that can give rise to
Chevron deference, see Cunningham v. Scibana,
259 F.3d 303, 306
(4th Cir. 2001) (explaining that a “BOP[] program statement is
an internal agency guideline that has not been subjected to the
rigors of notice and comment rulemaking” and therefore is not
entitled to Chevron deference); see also Tablada v. Thomas,
533
F.3d 800, 806 (9th Cir. 2008) (concluding that Program Statement
5880.28 is not entitled to Chevron deference because it “does
not purport to carry the force of law and was not adopted after
notice and comment”); Trowell v. Beeler, 135 F. App’x 590, 595
(4th Cir. 2005) (per curiam) (holding that a BOP program
statement was not entitled to Chevron deference because it
lacked the force of law). Moreover, the Warden did not argue in
the district court that the BOP is entitled to Chevron
deference, and he offers no reason on appeal why BOP program
statements should trigger analysis under the Chevron framework.
Consequently, we conclude that the district court erred in
granting the BOP Chevron deference.
Although the BOP is not entitled to Chevron deference, its
method of calculation is worthy of our respect under the
Skidmore-deference framework. We therefore will defer to the
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BOP’s method “to the extent it has the ‘power to persuade.’”
Knox Creek, 811 F.3d at 160 (quoting
Skidmore, 323 U.S. at 140).
B.
The BOP’s method of calculation is insufficiently
persuasive under Skidmore because it conflicts with the GCT
statute, 18 U.S.C. § 3624.
The most glaring conflict is that the BOP’s calculation
method undermines § 3624(b)(1) by rendering worthless any GCT
earned during the concurrent portion of Hogge’s sentence. This
is at odds with the clear purpose of the GCT statute to provide
inmates with an incentive to comply with prison rules. See
Barber v. Thomas, 560 U.S. 474, 482 (2010) (“The reason for [the
GCT-credit scheme] is provided in § 3624(b) itself: to provide
an incentive for prisoners to ‘compl[y] with institutional
disciplinary regulations.’” (second alteration in original)
(quoting § 3624(b)(1))). Under the BOP’s method of calculation,
Hogge’s conduct during the concurrent portion of his sentence is
immaterial to the length of time he will spend in prison.
Instead, the GCT he earned during the concurrent portion of his
sentence simply altered the day the BOP retroactively deemed as
his sentence-commencement date.
The Warden does not respond directly to this conflict
between the BOP’s calculation method and § 3624(b). In a
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similar case, however, a district court rejected a BOP argument
that there is no conflict because “[a] federal inmate serving
the concurrent portion of his sentence in state prison is
motivated to comply with state prison rules in order to get
state-law merit time allowances, which will shorten the time
period until his release date from state prison.” Hood v.
Grondolsky, No. 12-11368-JGD, 2012 WL 6061211, at *5 (D. Mass.
Dec. 5, 2012) (alteration in original). The court explained
that “[t]his may or may not be true” depending on state law,
and, irrespective of state law, “there is no reason why a
prisoner should not also be motivated to shorten his federal
prison sentence in accordance with federal law.”
Id. We find
the court’s reasoning persuasive. See also Hill v. Cowin,
717
F. Supp. 2d 268, 270–71 (N.D.N.Y. 2010) (concluding that a BOP
method of calculation similar to the one in the instant case
conflicted with § 3624(b) because it undermined the incentive
created by the statute).
In contrast to the BOP’s method, Hogge’s suggested method
of calculation honors the purpose of § 3624(b). Under Hogge’s
calculation, all of the GCT he earned over the course of his
entire federal sentence reduces the amount of time he ultimately
will spend in prison. Thus, using Hogge’s method, GCT would
have served as an incentive to comply with prison rules
9
throughout the entirety of his federal sentence, just as
contemplated by the GCT statute.
A second conflict between the BOP’s calculation method and
the GCT statute arises from the BOP’s award of Hogge’s GCT on
the front end of his sentence. Section 3624(b)(2) says that
“credit awarded under this subsection . . . shall vest on the
date the prisoner is released from custody.” By applying some
of Hogge’s GCT to the front end of his sentence to determine the
date his sentence commenced, the BOP caused Hogge’s GCT not to
“vest on the date [he] was released from custody.”
§ 3624(b)(2). Accordingly, we conclude that the BOP’s
calculation method impermissibly conflicts with § 3624(b)(2).
See Hill, 717 F. Supp. 2d at 270 (explaining that the BOP’s
award of “GCT up front” seemingly conflicted with § 3624(b)(2)).
Additionally, the BOP’s calculation method conflicts with
§ 3624(a). Section 3624(a) says that “[a] prisoner shall be
released by the Bureau of Prisons 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).” The BOP’s proposed target release date is not
“the date of the expiration of the prisoner’s term of
imprisonment, less any [GCT].” § 3624(a) (emphasis added).
Instead, the BOP’s target release date is the date of the
expiration of Hogge’s term of imprisonment less half of his GCT.
10
See Hill, 717 F. Supp. 2d at 270 (explaining that a similar BOP
calculation method conflicted with 3624(a)); see also Hood,
2012
WL 6061211, at *4 (agreeing with the reasoning of the Hill
court).
As the Warden points out, there are few cases dealing
with “GCT allocation for inmates serving partly concurrent,
partly consecutive sentences.” Appellee’s Br. at 17. In both
Hood and Hill, the district courts rejected the BOP’s
calculation method. See Hood, 2012 WL 6061211, at *1;
Hill, 717
F. Supp. 2d at 269–70. In Williams v. Maye, No. 13-3005-RDR,
2013 WL 5291955 (D. Kan. Sept. 19, 2013), however, the court
found no error in the BOP’s method of calculation. The Williams
court, however, did so without explaining its analysis. For the
reasons stated above, we agree with the conclusions of Hill and
Hood instead of Williams.
The Warden presents two reasons why we should reject Hood
and Hill and affirm the district court’s judgment. First, he
argues that the method of calculation requested by Hogge and
adopted by the courts in Hill and Hood “creates the arbitrary
and unfair result of requiring the inmate to serve the
concurrent portion of his sentence day for day, rather than
receiving any benefit of GCT, which practically results in
longer than necessary service of the concurrent portion of the
federal sentence.” Appellee’s Br. at 18. We fail to grasp the
11
inequity claimed by the Warden. Hogge’s method of calculation
allows him to receive an actual benefit for his good behavior
during the concurrent portion of his sentence: he will be
released from prison earlier than he would otherwise. In
contrast, the BOP’s method of calculation grants Hogge an
illusory benefit for his good behavior during the concurrent
portion of his sentence, as it has no effect on the length of
time he will spend in prison.
Second, the Warden argues that unlike Hogge’s method of
calculation, the BOP’s method is consistent with the sentencing
court’s intent that “48 months [of Hogge’s sentence] shall be
consecutive to [his] state sentence and 48 months shall be
served concurrent to [his] state sentence.” E.R. 86. The
Warden says that, assuming Hogge earns all potential GCT, the
BOP’s calculation method ensures Hogge will serve an equal
number of days in the concurrent and consecutive portions of his
sentence. But under Hogge’s method, the Warden explains that
Hogge will serve the full 48-months for the concurrent portion
of his sentence and 378 fewer days during the consecutive
portion of his sentence.
While we doubt the sentencing court’s intent could trump
the demands of the GCT statute, we also do not ascribe to the
sentencing court the intent claimed by the Warden. Under
Hogge’s calculation method and absent the application of GCT, he
12
would serve half of his federal sentence in state custody and
half in federal custody. This is consistent with the sentencing
court’s order. Moreover, the Warden fails to point to anything
that suggests that the sentencing court’s intent was to ensure
that Hogge would serve an equal amount of time during his
concurrent and consecutive sentences after taking into account
GCT. Consequently, we reject the Warden’s argument that Hogge’s
method of calculation fatally undermines the sentencing court’s
intent.
III.
For the reasons given, we reverse the judgment of the
district court and remand with instructions that the court grant
Hogge’s habeas petition. As it appears that Hogge is entitled
to be released immediately, we direct the Clerk to issue the
mandate forthwith.
REVERSED AND REMANDED
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