David O’donald v. Tracy Johns, Warden

Precedential
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2990
DAVID O’DONALD,
Appellant
v.
TRACY JOHNS, WARDEN
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 03-cv-00164J)
District Judge: Honorable Kim R. Gibson
Submitted Under Third Circuit L.A.R. 34.1(a)March 3, 2005
Before: SLOVITER, BARRY AND FISHER, Circuit Judges.
(Filed March 22, 2005)
OPINION OF THE COURT
PER CURIAM
David O’Donald appeals from the District Court’s order
denying his habeas corpus petition filed under 28 U.S.C. § 2241.
In his habeas petition, O’Donald challenges the calculation of
his good conduct time (“GCT”) by the Bureau of Prisons
(“BOP”). For the following reasons, we will affirm the District
Court’s order.
O’Donald is currently incarcerated at the Federal
Correctional Institution in Loretto, Pennsylvania, serving a

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We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and1
2253(a). We exercise plenary review over the District Court’s
legal conclusions and apply a clearly erroneous standard to its
findings of fact. See Ruggiano v. Reish, 307 F.3d 121, 126 (3d
Cir. 2002).
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federal sentence of 144 months for armed bank robbery.
According to the BOP, O’Donald is eligible under the applicable
statute, 18 U.S.C. § 3624(b), to earn up to 564 days of GCT.
Under its calculation of GCT, the BOP projects O’Donald’s
release date as May 4, 2007.
After exhausting administrative remedies, O’Donald
challenged the BOP’s calculation of his GCT by filing a habeas
corpus petition in the District Court. In his habeas petition,
O’Donald argues that the BOP’s calculation of his GCT deprives
him of the amount to which he is entitled by statute. O’Donald
asserts that § 3624(b) allows him to earn up to 54 days per year
of the term of sentence imposed, not 54 days per year of time
actually served as the BOP’s calculation provides.
The Magistrate Judge to whom the case was assigned
disagreed with O’Donald and recommended denying his habeas
corpus petition. After receiving O’Donald’s objections, the
District Court adopted the Magistrate Judge’s report and
recommendation and denied O’Donald’s petition. O’Donald
appeals.1
The version of § 3624(b) applicable to O’Donald
provided in relevant part:
A prisoner who is serving a term of imprisonment
of more than one year, other than a term of
imprisonment for the duration of his life, shall
receive credit toward the service of the prisoner’s
sentence, beyond the time served, of fifty-four
days, at the end of each year of his term of
imprisonment, beginning at the end of the first year
of the term, unless the Bureau of Prisons

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To the extent that O’Donald relies on the District Court’s2
opinion in White v. Scibana, 314 F. Supp. 2d 834 (W.D. Wis.
2004), the Seventh Circuit reversed the District Court’s decision.
See White, 390 F.3d at 1003. We are also aware of Williams v.
Dewalt, __F. Supp. 2d__, 2004 WL 3022300 (D. Md. Dec. 29,
2004), in which the District Court ruled that § 3624(b) is not
ambiguous and that the BOP’s calculation is improper. For the
reasons explained herein, however, we disagree with Williams’
analysis and conclusions.
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determines that, during that year, he has not
satisfactorily complied with such institutional
disciplinary regulations as have been approved by
the Attorney General and issued to the prisoner. . .
. Credit for the last year or 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) (effective Nov. 1, 1987).
The BOP interprets the statute as allowing 54 days of
GCT “for each year served.” 28 C.F.R. § 523.20. To effectuate
its interpretation of the statute, the BOP utilizes a formula for
calculating GCT which takes into account the fact that an
inmate’s time actually served becomes incrementally shorter
each year as he is awarded GCT. See White v. Scibana, 390
F.3d 997, 999-1000 (7th Cir. 2004) (explaining the BOP’s
formula).
O’Donald argues that the plain language of the statute
requires the BOP to calculate GCT based on the sentence
imposed, not time served. He points to the phrase “term of
imprisonment” as clear indication that the statute unambiguously
requires calculation of GCT based on the sentence imposed
rather than time served. The BOP, on the other hand, argues2
that the phrase unambiguously refers to time served.
We disagree with both contentions. In our view, it is
unclear whether the phrase “term of imprisonment,” as used

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To date, no other Court of Appeals has answered this3
question in a published opinion.
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several times in § 3624(b), refers to the sentence imposed or
time served. The final sentence quoted above appears to refer to
time served. Moreover, § 3624(b) establishes a process of
awarding GCT at the end of each year of imprisonment based on
an inmate’s behavior while incarcerated. As an inmate earns
GCT each year, his overall time to serve is reduced. To
calculate GCT based on the sentence imposed would allow an
inmate to earn GCT for time he was not actually incarcerated.
See White, 390 F.3d at 1002. This unseemly result would
frustrate the process and militates against finding that the phrase
“term of imprisonment” unambiguously refers to the sentence
imposed. Id. at 1002. On the other hand, we cannot agree with
the BOP that the phrase unambiguously refers to time served.
As used initially in the opening sentence of § 3642(b), the phrase
appears to refer to the sentence imposed. We thus conclude that
the meaning § 3624(b) is ambiguous in this regard. See Perez-
Olivo v. Chavez, 394 F.3d 45, 52 (1st Cir. 2005); White, 390
F.3d at 1002-03; Pacheco-Camacho v. Hood, 272 F.3d 1266,
1270 (9th Cir. 2001).
Because the meaning of § 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); Stiver v. Meko, 130 F.3d 574, 577 (3d Cir.
1997). We agree with the First, Seventh, and Ninth Circuits that
the BOP’s interpretation is reasonable. See Perez-Olivo, 3943
F.3d at 53; White, 390 F.3d at 1003; Pacheco-Camacho, 272
F.3d at 1270-71. In particular, we agree that the BOP’s
interpretation comports with the language of the statute,
effectuates the statutory design, establishes a “fair prorating
scheme,” enables inmates to calculate the time they must serve
with reasonable certainty, and prevents certain inmates from
earning GCT for time during which they were not incarcerated.
Pacheco-Camacho, 272 F.3d at 1270-71.
O’Donald’s remaining argument is that if § 3624(b) is

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ambiguous, the District Court should have applied the rule of
lenity and resolved the ambiguity in his favor. This argument
lacks merit. We do not resort to the rule of lenity where, as here,
we can otherwise resolve the ambiguity of the statute. See
Caron v. United States, 524 U.S. 308, 316 (1998); Pacheco-
Camacho, 272 F.3d at 1271-72.
In short, the District Court properly rejected O’Donald’s
challenge to the BOP’s calculation of GCT. Accordingly, we
will affirm the District Court’s order denying his habeas corpus
petition.

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