Lawrence E. Lupien v. Harold W. Clarke

1The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2686
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Kenneth R. James, *
*
Petitioner - Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
T. C. Outlaw, Warden, *
* [UNPUBLISHED]
Respondent - Appellee. *
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Submitted: March 16, 2005
Filed: March 24, 2005
___________
Before MURPHY, HEANEY, and SMITH, Circuit Judges.
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PER CURIAM.
Kenneth R. James was convicted of forcibly breaking into a post office, in
violation of 18 U.S.C. § 2115, and of theft of postal money orders and possession of
stolen postal money orders, in violation of 18 U.S.C. § 500. He was sentenced to 84
months imprisonment. James filed a petition for a writ of habeas corpus under 28
U.S.C. § 2241, claiming that the Bureau of Prisons (BOP) violated his due process
rights by miscalculating his good time credits. The district court1 denied the petition,
and James appeals.

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2Appellant's motion to strike the government's 28(j) letter is denied as moot.
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James argues that BOP's method of calculating good time credits based on time
actually served rather than the sentence imposed conflicts with the plain meaning of
18 U.S.C. § 3624, is contrary to congressional intent, and leads to an extra seven days
of imprisonment per year. The government contends that the plain meaning of
§ 3624(b) calls for awarding good time credits based on time served and that even if
the statute is ambiguous, BOP's interpretation set out at 28 C.F.R. § 523.20 is entitled
to deference and is reasonable.
We conclude that § 3624(b) is ambiguous because it does not clearly indicate
whether a prisoner's good time credits are based on the time served in prison or the
sentence imposed. See White v. Scibana, 390 F.3d 997 (7th Cir. 2004);
Pacheco-Camacho v. Hood, 272 F.3d 1266 (9th Cir. 2001). Since the BOP regulation
was adopted through the notice and comment procedure, it is entitled to deference
under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984),
and we conclude that it is a reasonable interpretation of the statute.
We accordingly affirm the judgment of the district court. 2
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