Darren Bottinelli v. Josias Salazar; William Brown

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARREN BOTTINELLI ; PAMELA
M ARIE M CG OWAN; TIMOTHY
LASHAWN ALLEN; RICARDO
CESAR RAMIREZ ; J UAN JESUS
BORREGO; M ICHAEL EUGENE
DAVIS ; M ARK NUTTER; ALEX
DURAND WILLIAMS -DAVIS ,
Petitioners-Appellants,
v.
J OSIAS SALAZAR; WILLIAM
BROWN,
Respondents-Appellees.
No. 19-35201
D.C. No.
3:19-cv-00256-MO
OPINION
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted July 8, 2019
Portland, Oregon
Filed July 15, 2019
Before: Ferdinand F. Fernandez, Susan P. Graber, and
John B. Owens, Circuit Judges.
Opinion by Judge Owens

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SUMMARY*
Habeas Corpus
The panel affirmed the district court’s denial of eight
federal prisoners’ joint petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 based on the recently enacted
First Step Act’s amendment to the good time credit provision
of 18 U.S.C. § 3624(b).
Section 3624(b) provided that prisoners could earn up to
54 days of good time credit each year, but, until recently, the
Bureau of Prisons used a calculation that allowed a
maximum of only 47 days. The First Step Act, enacted on
December 21, 2018, requires the BOP to permit up to 54
days of good time credit per year, and requires the Attorney
General to establish a “risk and needs assessment system”
by July 19, 2019.
The panel held that the amendment providing federal
prisoners the possibility of seven additional days of good
time credit per year did not take effect immediately, but
rather takes effect on July 19, 2019. The panel further held
that this delay in implementation did not violate the Equal
Protection Clause.
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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BOTTINELLI V. SALAZAR 3
COUNSEL
Stephen R. Sady (argued), Chief Deputy Federal Public
Defender; Elizabeth G. Daily, Assistant Federal Public
Defender; Federal Public Defender’s Office, Portland,
Oregon; for Petitioners-Appellants.
Jared D. Hager (argued), Assistant United States Attorney;
Billy J. Williams, United States Attorney, District of
Oregon; Kelly A. Zusman, Appellate Chief; United States
Attorney’s Office, Portland, Oregon; for Respondents-
Appellees.
OPINION
OWENS, Circuit Judge:
Darren Bottinelli and seven other federal prisoners
(“Petitioners”) appeal from the district court’s denial of their
joint petition for a writ of habeas corpus. They argue that
the recently enacted First Step Act’s amendment to the good
time credit provision requires the Bureau of Prisons (“BOP”)
to re-calculate their sentences immediately, which would
accelerate their dates for release or transfer to prerelease
custody. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
I. BACKGROUND
A federal prisoner who is serving more than a one-year
term of imprisonment may earn good time credit toward his
or her sentence so long as the prisoner “display[s] exemplary
compliance with institutional disciplinary regulations.” 18
U.S.C. § 3624(b)(1). Section 3624(b) controls how the BOP
calculates good time credit. Until recently, although the

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statute provided that prisoners could earn “up to 54 days”
each year for exemplary compliance, the BOP used a
calculation that allowed a maximum of only 47 days. See
Barber v. Thomas, 560 U.S. 474, 476–79 (2010) (discussing
§ 3624(b)(1)). Courts, including ours, upheld this 47-day
calculation. See id. at 492; Pacheco-Camacho v. Hood, 272
F.3d 1266, 1271 (9th Cir. 2001).
On December 21, 2018, the First Step Act of 2018, Pub.
L. No. 115-391, 132 Stat. 5194, was enacted. The Act
implemented a number of prison and sentencing reforms.
We limit our focus to subsection 102(b), which made two
amendments relevant to this appeal.
First, paragraph 102(b)(1) amends § 3624(b) – the good
time credit provision – to require the BOP to permit up to 54
days per year. § 102(b), 132 Stat. at 5210. Second,
paragraph 102(b)(1) amends § 3624 by adding subsection
(g), which is relevant to the Act’s creation of an earned time
credit system.1 Id. at 5210–13. The Act requires that, within
210 days of its enactment, the Attorney General establish a
“risk and needs assessment system” to, broadly speaking,
review each prisoner’s recidivism risk level, award earned
time credit as an incentive for participation in recidivism
reduction programming, and “determine when a prisoner is
ready to transfer into prerelease custody or supervised
release in accordance with section 3624.” § 101(a), 132 Stat.
at 5196–97. Section 3624(g) details the criteria for when a
prisoner becomes eligible, considering earned time credit,
for transfer to prerelease custody or supervised release.
§ 102(b), 132 Stat. at 5210–13.
1 In contrast to good time credit, earned time credit is awarded for
“successfully complet[ing] evidence-based recidivism reduction
programming or productive activities.” § 101(a), 132 Stat. at 5198.

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BOTTINELLI V. SALAZAR 5
Subsection 102(b) also includes an effective-date
provision in paragraph 102(b)(2), and a retroactivity
provision in paragraph 102(b)(3).
SEC. 102. IMPLEMENTATION OF
SYSTEM AND RECOMMENDATIONS
BY BUREAU OF PRISONS.
(b) PRERELEASE CUSTODY.— . . .
(2) EFFECTIVE DATE.—The
amendments made by this subsection
shall take effect beginning on the date
that the Attorney General completes
and releases the risk and needs
assessment system under subchapter
D of chapter 229 of title 18, United
States Code, as added by section
101(a) of this Act.
(3) APPLICABILITY.—The amendments
made by this subsection shall apply
with respect to offenses committed
before, on, or after the date of
enactment of this Act, except that
such amendments shall not apply with
respect to offenses committed before
November 1, 1987.
Id. at 5208, 5210, 5213.
The parties agree that the Act now provides federal
prisoners the possibility of seven additional days of good
time credit per year. They disagree, however, as to when
that amendment takes effect. Petitioners argue that the

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amendment took effect upon the Act’s enactment on
December 21, 2018, and, therefore, that they are entitled to
the immediate recalculation of their good time credit. But
the BOP contends that the amendment does not take effect
until July 19, 2019 – the date by which the Attorney General
must establish “the risk and needs assessment system.”
The district court agreed with the BOP. It held that the
Act’s text clearly links the good time credit amendment’s
effective date to the creation of “the risk and needs
assessment system.” Accordingly, the court explained that
it “cannot, as Petitioners invite [it] to do, ignore Section
102(b)(2)’s express and unambiguous text and conclude
that, despite what it clearly said, Congress really intended
the ‘good time fix’ to be effective immediately.”2
2 A number of district courts across the country have now addressed
Petitioners’ argument and unanimously rejected it on the merits. See,
e.g., Crittendon v. White, No. 1:19-cv-669, 2019 WL 1896501, at *1
(M.D. Pa. Apr. 29, 2019) (holding that the petitioner’s “argument that he
is entitled to immediate relief lacks merit”); Warner v. Bragg, No. 9:19-
344-MGL-BM, 2019 WL 2016812, at *3 (D. S.C. Apr. 12, 2019)
(“There is no grievous ambiguity or uncertainty in the First Step Act . . .
that Congress chose to delay the implementation of the amendment to
§ 3624(b) until the Attorney General completed the risk and needs
assessment system.”); Roy v. U.S. Bureau of Prisons, No. 2:19-CV-59-
RMP, 2019 WL 1441622, at *1 (E.D. Wash. Apr. 1, 2019) (“The good-
time provisions of the First Step Act [] did not become effective when
the Act took effect on December 21, 2018. . . . [T]he change will not take
effect until the Attorney General completes the ‘risk and needs
assessment system’ . . . .”); Schmutzler v. Quintana, No. 5:19-046-DCR,
2019 WL 727794, at *2 (E.D. Ky. Feb. 20, 2019) (“Section 102(b)(2) of
the Act specifically provides that the amendments made in subsection
102(b) of the Act take effect only when the Attorney General completes
the ‘risk and needs assessment system’ required by Section 101(a) of the
Act.”). We know of no contrary decision by any court.

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BOTTINELLI V. SALAZAR 7
II. DISCUSSION
We review de novo the denial of a 28 U.S.C. § 2241
petition, Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir.
2006), and questions of statutory interpretation, Chemehuevi
Indian Tribe v. Newsom, 919 F.3d 1148, 1151 (9th Cir.
2019).
A. Statutory Interpretation
The single issue before us is when the Act’s good time
credit amendment takes effect. As a general rule, a statute
takes effect upon its enactment unless Congress clearly
provides otherwise. See Gozlon-Peretz v. United States, 498
U.S. 395, 404 (1991). “When interpreting a statute, we are
guided by the fundamental canons of statutory construction
and begin with the statutory text.” United States v. Neal, 776
F.3d 645, 652 (9th Cir. 2015). Whether the statutory text has
a “plain and unambiguous meaning” depends on “the
language itself, the specific context in which that language
is used, and the broader context of the statute as a whole.”
United States v. Youssef, 547 F.3d 1090, 1093 (9th Cir.
2008) (per curiam) (quoting Robinson v. Shell Oil Co., 519
U.S. 337, 340–41 (1997)).
We agree with the district court’s reading of the Act.
Congress provided “clear direction” in paragraph 102(b)(2)
to delay the implementation of the good time credit
amendment until the Attorney General establishes the “risk
and needs assessment system.” Gozlon-Peretz, 498 U.S. at
404. Like the district court, we refuse to overlook the Act’s
plain text and therefore affirm the denial of the joint habeas
petition.
Our analysis can begin and end with paragraph
102(b)(2)’s text. First, paragraph 102(b)(2)’s title –

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8 BOTTINELLI V. SALAZAR
“Effective Date” – leaves no doubt about its purpose.
§ 102(b), 132 Stat. at 5213. Second, paragraph 102(b)(2)’s
text unambiguously applies to the entire subsection. Its
subject – “[t]he amendments made by this subsection” –
refers to “amendments” in the plural without any
qualifications. Id. Subsection 102(b) makes only two
amendments: the good time credit amendment and the
addition of § 3624(g). Id. at 5210–13. Therefore, the only
logical conclusion is that paragraph 102(b)(2) must apply to
both amendments made in paragraph 102(b)(1). Third,
paragraph 102(b)(2)’s text is straightforward as to when
these amendments become operative: “The amendments
made by this subsection shall take effect beginning on the
date that the Attorney General completes and releases the
risk and needs assessment system . . . as added by section
101(a) of this Act.” Id. at 5213 (emphasis added). In
addition to the mandatory language – “shall take effect” –
paragraph 102(b)(2) plainly ties the amendments’ effectivity
to the date that the “risk and needs assessment system” is
established. Although no specific date is provided, the text
refers directly to “section 101(a) of this Act,” which requires
the Attorney General to establish the “risk and needs
assessment system” within 210 days of enactment, thus no
later than July 19, 2019. § 101(a), 132 Stat. at 5196.
Conceding that paragraph 102(b)(2)’s text is difficult to
overcome, Petitioners argue that “the full statutory context”
requires reading paragraph 102(b)(2) so that it does not
apply to the good time credit amendment. They contend that
“this subsection” in paragraph 102(b)(2) refers only to
paragraph 102(b)(1)’s addition of § 3624(g) because just that
amendment is related to the newly created “risk and needs
assessment system.”

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BOTTINELLI V. SALAZAR 9
We reject this narrow reading of “this subsection.”
Interpreting paragraph 102(b)(2) to apply only to the
addition of § 3624(g) is unnatural. This proposed
interpretation also asks us to ignore how “this subsection” is
used elsewhere. See Barber, 560 U.S. at 483–84
(recognizing a “presumption that a given term is used to
mean the same thing throughout a statute” (citation
omitted)). For instance, paragraph 102(b)(3) uses “this
subsection” to give both of paragraph 102(b)(1)’s
amendments retroactive effect:
SEC. 102. IMPLEMENTATION OF
SYSTEM AND RECOMMENDATIONS
BY BUREAU OF PRISONS.
(b) PRERELEASE CUSTODY.— . . .
(3) APPLICABILITY.—The amendments
made by this subsection shall apply
with respect to offenses committed
before, on, or after the date of
enactment of this Act, except that
such amendments shall not apply with
respect to offenses committed before
November 1, 1987.
§ 102(b), 132 Stat. at 5208, 5210, 5213. As in paragraph
102(b)(2), the subject of paragraph 102(b)(3) – “[t]he
amendments made by this subsection” – refers to more than
a single amendment and contains no qualifier to limit its
application to only the addition of § 3624(g). Id. Notably,
Petitioners do not advocate for a narrow interpretation of
“this subsection” in paragraph 102(b)(3) because that would
produce a disadvantageous result for them.

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Still in search of a viable argument for narrowly
construing paragraph 102(b)(2)’s text, Petitioners contend
that we should not interpret the Act as written because it is
illogical to link the good time credit amendment’s effective
date to the “risk and needs assessment system.” At first
glance, Petitioners are correct that it is not immediately
intuitive why Congress linked the two. However, even
though the good time credit calculation and the “risk and
needs assessment system” are not dependent on each other,
they are generally related. Specifically, both affect
prerelease custody under 18 U.S.C. § 3624(c). The good
time credit calculation affects a prisoner’s projected release
date, which affects when a prisoner can be transferred to
prerelease custody. See 18 U.S.C. § 3624(c)(1) (requiring
that the BOP, “to the extent practicable, ensure that a
prisoner serving a term of imprisonment spends a portion of
the final months of that term” in prerelease custody). And,
under the new “risk and needs assessment system,” receiving
earned time credit can potentially shorten prerelease custody
or supervised release. See § 101(a), 132 Stat. at 5198.
Because good time credit does not operate entirely
separately from the “risk and needs assessment system,”
Congress rationally placed the good time credit amendment
in subsection 102(b), titled “Prerelease Custody.” § 102(b),
132 Stat. at 5210; see also Almendarez-Torres v. United
States, 523 U.S. 224, 234 (1998) (“‘[T]he title of a statute
and the heading of a section’ are ‘tools available for the
resolution of a doubt’ about the meaning of a statute.”
(citation omitted)).
Lastly, we reject Petitioners’ assertion that applying the
Act’s text as written would produce absurd results, as the
good time credit amendment requires more than a simple
calculation tweak. Releasing a prisoner comes with a host
of obligations, including the provision of clothing, a stipend,

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BOTTINELLI V. SALAZAR 11
and transportation. See 18 U.S.C. § 3624(d). Because the
good time credit amendment affects a large swath of the
federal incarcerated population, there is nothing absurd
about giving the BOP time to prepare for this increased
administrative burden and the ensuing number of releases
and prerelease transfers.
B. Alleged Drafting Error
Likely understanding the weakness in their proposed
statutory interpretation, Petitioners move beyond textual
arguments. They argue that even if paragraph 102(b)(2)
delays the good time credit amendment, this is a “drafting
oversight” for us to fix. We find nothing to suggest that the
delay was such an oversight. Moreover, Petitioners’ reliance
here on Gozlon-Peretz is inapt. There, the United States
Supreme Court clarified when a statute, which was without
an effective-date provision, became operative. Gozlon-
Peretz, 498 U.S. at 404 (“[W]e note that § 1002, like many
other congressional enactments, contains no provision for its
effective date. Nor is there an effective date specified for the
[relevant Act] as a whole.”). Because it could not “say that
Congress gave a clear direction to delay the effective date,”
the Court applied the general principle that a statute takes
effect upon enactment. Id. at 407.
The Act before us is different. Subsection 102(b) is not
silent as to when its amendments take effect. Because
Congress gave us “clear direction to delay the effective
date,” we begin our analysis at a different juncture, and
Gozlon-Peretz has no application. Id.; see also Mobil Oil
Corp. v. Higginbotham, 436 U.S. 618, 625 (1978) (“There is
a basic difference between filling a gap left by Congress’
silence and rewriting rules that Congress has affirmatively
and specifically enacted.”). Generally, we hesitate to
presume a statutory drafting error, and nothing here requires

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us to deviate from that principle. See Lamie v. U.S. Tr., 540
U.S. 526, 542 (2004) (“It is beyond our province to rescue
Congress from its drafting errors, and to provide for what we
might think . . . is the preferred result.” (citation omitted)).
C. Constitutional Claim
Finally, we also reject Petitioners’ contention that the
delay violates the Constitution. Petitioners argue that
reading paragraph 102(b)(2) to stall the good time credit
amendment violates the Equal Protection Clause because
federal prisoners with projected release dates between
December 21, 2018, and July 19, 2019, are irrationally
deprived of the amendment’s benefit and thus overserve
their sentences. Because Petitioners do not allege that this
classification implicates a suspect class or infringes on a
fundamental right, we apply only rational basis review.
Petitioners have failed to satisfy their burden of
“disprov[ing] the rationality of the relationship between the
classification and the purpose.” United States v. Navarro,
800 F.3d 1104, 1113 (9th Cir. 2015) (citation omitted); see
also United States v. Padilla-Diaz, 862 F.3d 856, 862 (9th
Cir. 2017) (“[A] classification is valid ‘if there is any
reasonably conceivable state of facts that could provide a
rational basis for the classification.’” (citation omitted)). As
already discussed, Congress understandably gave the BOP
time to implement the good time credit amendment rather
than making it immediately effective. This respite eased the
BOP’s administrative burden and bolstered its ability to
prepare for the impending releases and prerelease transfers.
Questioning whether the Act provided the BOP too many
days to prepare does not overcome the deference we owe to
Congress. See McGinnis v. Royster, 410 U.S. 263, 276
(1973) (stating that “legislative solutions must be respected

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BOTTINELLI V. SALAZAR 13
if the ‘distinctions drawn have some basis in practical
experience’” (citation omitted)).
Significantly, we recently rejected a similar
constitutional argument. In Navarro, the defendant
challenged the United States Sentencing Commission’s
delayed implementation of a sentence-reduction amendment
because he did not benefit unless that amendment took
immediate effect. 800 F.3d at 1107–08. Denying the equal
protection challenge, we recognized the “legitimate
government interests” in delay because of the large number
of potentially eligible prisoners and the agency’s need to
prepare. Id. at 1113–14. Here, Congress similarly had
appropriate reasons to delay the amendment’s
implementation, and thus the classification easily survives
rational basis review.3 See Padilla-Diaz, 862 F.3d at 862
(explaining that a statute “will sometimes produce unequal
3 We also reject Petitioners’ argument that even if subsection 102(b)
was not immediately effective, we should now interpret the original
statute to permit up to 54 days of good time credit. First, ABKCO Music,
Inc. v. LaVere has no application here. 217 F.3d 684, 691–92 (9th Cir.
2000) (holding that a 1997 amendment to the 1909 Copyright Act was
clarifying and retroactive, and thus controlled how to interpret the
original statute). Unlike the statute in ABKCO, the Act before us is not
silent as to its retroactive effect. See § 102(b), 132 Stat. at 5213. Second,
even if the Act were silent, this argument would still fail because the
good time credit amendment was a substantive change, not a
clarification, to the preexisting law. See Beaver v. Tarsadia Hotels, 816
F.3d 1170, 1186 (9th Cir. 2016) (holding that an original statute may be
reinterpreted “if an amendment merely serves to clarify rather than
change the substance of existing law”). The good time credit amendment
neither “restore[d] the law to what it was before,” ABKCO Music, Inc.,
217 F.3d at 690, nor resolved a circuit split, see Callejas v. McMahon,
750 F.2d 729, 731 (9th Cir. 1985) (“[A] split in the circuits[] [is] an
indication that a subsequent amendment is intended to clarify, rather than
change, the existing law.” (citation omitted)).

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and arguably unfair results” yet survive rational basis
review).
III. CONCLUSION
We hold that the Act’s good time credit amendment did
not take immediate effect upon enactment but will become
effective with the establishment of the “risk and needs
assessment system” on July 19, 2019.
AFFIRMED.

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