Enrique Simmons v. FEDERAL BUREAU OF PRISONS; JONATHAN C. MINER, Warden F.C.I. Fairton

APS-176 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-1111
________________
ENRIQUE SIMMONS,
Appellant
v.
FEDERAL BUREAU OF PRISONS;
JONATHAN C. MINER, Warden F.C.I. Fairton
_______________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 04-cv-05764)
District Judge: Honorable Joseph E. Irenas
_______________________________________
Submitted Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
March 24, 2005
Before: SLOVITER, NYGAARD and FUENTES, Circuit Judges
(Filed: April 21, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Enrique Simmons appeals from the District Court’s order denying his habeas
corpus petition filed under 28 U.S.C. § 2241. Simmons challenges the calculation of his
good conduct time (“GCT”) by the Bureau of Prisons (“BOP”). Because we conclude

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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
that the District Court’s order is correct in light of our recent opinion in O’Donald v.
Johns, __F.3d__, No. 04-2990, slip op. (3d Cir. Mar. 22, 2005), we will summarily
affirm. Simmons’ motion for appointment of counsel on appeal is denied.
Simmons is currently incarcerated at the Federal Correctional Institution in
Fairton, New Jersey, serving a sentence of 322 months for conspiracy to distribute and
possession with intent to distribute over fifty grams of cocaine. Simmons has been in
custody since May 17, 1990. Simmons is scheduled for release on April 4, 2013. The
BOP calculated the date pursuant to its reading of 18 U.S.C. § 3624(b). After exhausting
administrative remedies, Simmons filed a petition pursuant to 28 U.S.C. § 2241 on
November 23, 2004, claiming specifically that the BOP misinterprets § 3624(b),
depriving him of 390 days of GCT. He claims that he is entitled by statute to receive 54
days of GCT for each year of his imposed sentence, rather than the BOP’s interpretation
that he receives credit only for time actually served. By order entered December 16,
2004, the District Court held that § 3624(b) is not ambiguous, and the BOP’s
interpretation is correct. Simmons presents no other claims. Simmons then filed this
appeal.1
We recently decided this precise issue. In O’Donald, we held that although §
3624(b) is ambiguous, the BOP’s interpretation is reasonable. Id. at *4. Here, the

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District Court incorrectly concluded that § 3624(b) is unambiguous. However, as we
stated in O’Donald, under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S.
837, 844 (1984), we defer to the BOP’s interpretation. O’Donald, No. 04-2990 at *4.
Thus, Simmons’ claim must fail.
In short, because of our recent opinion in O’Donald v. Johns, the District Court
properly rejected Simmons’ challenge to the BOP’s calculation of his GCT. Accordingly,
we will affirm the District Court’s order denying his habeas corpus petition. Simmons’
request for appointment of counsel on appeal is denied.

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