Mario Gallo v. RONALD R. HOLT, Warden of FCI Schuylkill

APS-185 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-1386
________________
MARIO GALLO,
Appellant
v.
RONALD R. HOLT, Warden of FCI Schuylkill
_______________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 05-cv-00009)
District Judge: Honorable William J. Nealon
_______________________________________
Submitted For Possible Summary Action
Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
March 31, 2005
Before: SLOVITER, NYGAARD AND FUENTES, CIRCUIT JUDGES
(Filed: April 22, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Mario Gallo appeals from the District Court’s order denying his habeas corpus
petition filed pursuant to 28 U.S.C. § 2241. In his habeas petition, Gallo challenges the
calculation of his good conduct time (“GCT”) by the Bureau of Prisons (“BOP”).

-- 1 of 3 --

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). We exercise1
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).
2
Because we conclude that the District Court’s decision is correct in light of our recent
opinion in O’Donald v. Johns, __F.3d__, No. 04-2990, 2005 WL 647669 (3d Cir. Mar.
22, 2005), we will summarily affirm.
Gallo is currently incarcerated at the Federal Correctional Institution-Schuylkill in
Minersville, Pennsylvania, serving a federal sentence of 180 months imposed in 1997.
According to the BOP, Gallo is eligible under the applicable statute, 18 U.S.C. § 3624(b),
to earn up to 683 days of GCT. The BOP’s calculation of GCT is based on the time Gallo
will actually serve in prison, not on the entire 180-month sentence imposed. The BOP
projects Gallo’s release date as October 16, 2009.
After administratively challenging the BOP’s calculation of his GCT, Gallo filed a
§ 2241 habeas corpus petition in the District Court. In his habeas petition, Gallo argues
that the BOP’s calculation of his GCT deprives him of the amount to which he is entitled
by statute. Gallo asserts that § 3624(b) allows him to earn up to 54 days per year based
on the term of sentence imposed, not 54 days per year based on time actually served as
the BOP’s calculation provides. Relying on the opinions of several other courts, the
District Court rejected Gallo’s position and denied his habeas petition. Gallo appeals.1
We will affirm the District Court’s order. Since Gallo filed his notice of appeal,
we resolved the issue in O’Donald v. Johns, __F.3d__, No. 04-2990, 2005 WL 647669

-- 2 of 3 --

3
(3d Cir. Mar. 22, 2005). In O’Donald, we held that the meaning of § 3624(b) is
ambiguous and thus deferred to the BOP’s reasonable interpretation of the statute. See
O’Donald, 2005 WL 647669 at *2. Gallo’s challenge, identical to the one raised and
rejected in O’Donald, is unavailing.
In short, we conclude that Gallo’s appeal is controlled by O’Donald, which
constitutes subsequent precedent warranting summary action. See Third Circuit L.A.R.
27.4, I.O.P. 10.6. Accordingly, we will summarily affirm the District Court’s order
denying Gallo’s § 2241 petition.

-- 3 of 3 --