USA v. Stephen Erhart

1The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3488
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Richard L. Wittman, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 28, 2005
Filed: July 18, 2005
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Before SMITH, FAGG, and MAGILL, Circuit Judges.
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PER CURIAM.
Richard L. Wittman pleaded guilty to being a felon in possession of a firearm,
and was sentenced to 180 months imprisonment and 3 years supervised release. The
conviction and sentence were affirmed on appeal. See United States v. Wittman,
No. 94-1787, 1994 WL 615692 (8th Cir. Nov. 8, 1994) (unpublished per curiam).
Wittman later moved for clarification of his sentence, asserting that the Bureau
of Prisons (BOP) miscalculated his good-time credit. The district court 1 denied the

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motion after finding that the BOP’s method of calculating good-time credit based on
the amount of time actually served, rather than on the sentence imposed, was a
reasonable interpretation of 18 U.S.C. § 3624(b).
On appeal, Wittman argues that the BOP’s calculation method is contrary to
Congress’s unambiguous intent that prisoners are eligible to earn 54 days good-time
credit for every year of their sentence. He also argues that, even if section 3624(b)
is ambiguous, the district court should have applied the rule of lenity and resolved the
ambiguity in his favor.
Wittman’s arguments fail. See James v. Outlaw, 126 Fed. Appx. 758, 759 (8th
Cir. 2005) (unpublished per curiam) (finding § 3624(b) ambiguous, because it does
not clearly indicate whether prisoner’s good-time credit should be based on time
served in prison or on sentence imposed, and holding that BOP policy of calculating
good-time credit based on actual time served is entitled to deference and is reasonable
interpretation of § 3624(b)); O’Donald v. Johns, 402 F.3d 172, 173 (3d Cir. 2005)
(per curiam) (finding § 3624(b) ambiguous and holding BOP calculation method is
reasonable; court will not resort to rule of lenity when ambiguity of statute can be
otherwise resolved); Perez-Olivio v. Chavez, 394 F.3d 45, 51-53 (1st Cir. 2005)
(same).
Accordingly, we affirm.
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