Professional Documents
Culture Documents
No. 15-7698
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, Senior
District Judge. (3:14-cv-00314-JRS-RCY)
Submitted:
Decided:
PER CURIAM:
Thomas
Kevin
Hogge,
federal
prisoner,
appeals
the
Hogge
I.
In the late 1990s, Hogge was sentenced for various criminal
offenses in Virginia state court.
the
primary
custody
of
Virginia
authorities,
Hogge
was
E.R. 86. 1
After
On May 1,
2013, he completed his state sentence and was released into the
exclusive custody of the federal government.
This case centers on the BOPs rather byzantine method of
calculating
Hogges
start
and
sentence.
Through
employee,
BOP
release
dates
Forest
for
his
Kelly,
federal
the
Warden
the
BOP
determined
target
date
for
release.
BOP reduced the tentative full term date by the amount of GCT
that can be earned during a 48-month sentence (188 days).
Thus,
the BOP set Hogges target release date as October 24, 2016.
Second, the BOP determined the commencement date of Hogges
96-month
sentence.
preliminary
start
To
arrive
date
Record citations
district courts docket.
at
by
are
this
date,
subtracting
to
the
the
Electronic
the
BOP
full
Record
set
96-month
on
the
E.R. 57.
days.
This
resulted
in
sentence-commencement
during
the
concurrent
portion
of
sentence
has
no
date
that
the
BOP
deems
to
be
his
federal
sentence
commencement date.
Proceeding pro se, Hogge petitioned for a writ of habeas
corpus under 2241.
the BOP improperly calculated the start and end dates of his
sentence.
For the start date, Hogge argued that the BOP should
he
method.
maintained
that
the
BOP
use
the
following
18, 2016.
The
Warden
alternative,
filed
for
summary
motion
to
judgment.
dismiss,
The
or,
in
magistrate
the
judge
recommended that the district court grant the motion for summary
judgment.
In
doing
so,
he
held
that
the
BOPs
subsequently
recommendation,
adopted
granting
the
the
magistrate
Wardens
of
The district
judges
motion
method
report
for
and
summary
II.
We review de novo the district courts denial of habeas
corpus relief and its grant of summary judgment to the Warden.
Fontanez v. OBrien, 807 F.3d 84, 86 (4th Cir. 2015); Bostick v.
Stevenson, 589 F.3d 160, 163 (4th Cir. 2009).
and
that
the
BOPs
method
of
calculation
should
be
We agree.
A.
The Warden appears to rely on BOP Program Statement 5880.28
to justify its calculation method.
Additionally, in granting
the BOP Chevron deference, the magistrate judge and the district
court
looked
to
that
program
statement
as
well
as
Program
Statement 5160.05.
Not all agency interpretations of a statute are entitled to
Chevron deference.
to
circumstances
(1)
Congress
has
given
the
agency
authority to make rules carrying the force of law and (2) the
agencys
interpretation
authority.
Safety
&
is
rendered
in
the
exercise
of
that
Health
Admin.,
811
F.3d
148,
158
(4th
Cir.
2016)
(quoting A.T. Massey Coal Co. v. Holland, 472 F.3d 148, 166 (4th
Cir. 2006)); see United States v. Mead Corp., 533 U.S. 218, 226
27 (2001).
Cir.
statement
2005)
was
(per
not
curiam)
entitled
district
court
that
(holding
to
Chevron
that
deference
BOP
program
because
it
BOP
is
entitled
to
Chevron
we
conclude
that
the
district
court
erred
in
of
calculation
is
worthy
Skidmore-deference framework.
of
our
respect
under
the
B.
The
BOPs
persuasive
method
under
of
Skidmore
calculation
because
it
is
conflicts
insufficiently
with
the
GCT
This
See
Barber v. Thomas, 560 U.S. 474, 482 (2010) (The reason for [the
GCT-credit scheme] is provided in 3624(b) itself: to provide
an
incentive
for
disciplinary
prisoners
regulations.
(quoting 3624(b)(1))).
to
compl[y]
(second
with
alteration
institutional
in
original)
to
the
length
of
time
he
will
spend
in
prison.
Warden
the
does
BOPs
not
respond
calculation
directly
method
8
and
to
this
3624(b).
conflict
In
concurrent
portion
of
his
sentence
in
state
prison
is
until
his
release
date
from
state
prison.
Hood
v.
irrespective
of
state
law,
there
is
no
reason
why
Id.
We find
Under Hogges
served
as
an
incentive
to
comply
with
prison
rules
throughout
the
entirety
of
his
federal
sentence,
just
as
By applying some
on
the
3624(b)(2).
calculation
date
[he]
was
Accordingly,
method
released
we
impermissibly
conclude
conflicts
from
that
with
custody.
the
BOPs
3624(b)(2).
date
of
imprisonment,
less
Instead,
BOPs
the
expiration
any
of
[GCT].
target
release
the
prisoners
3624(a)
date
is
term
of
(emphasis
added).
the
of
date
the
6061211,
at
*4
(agreeing
with
the
reasoning
of
the
Hill
court).
As the Warden points out, there are few cases dealing
with
GCT
allocation
for
inmates
and
Hill,
calculation method.
the
serving
partly
concurrent,
district
courts
rejected
In both
the
BOPs
F. Supp. 2d at 26970.
2013 WL 5291955 (D. Kan. Sept. 19, 2013), however, the court
found no error in the BOPs method of calculation.
The Williams
For the
First, he
unfair
concurrent
receiving
result
portion
any
of
requiring
of
his
benefit
of
sentence
GCT,
the
inmate
day
which
for
to
day,
practically
serve
the
rather
than
results
in
the
released
concurrent
from
contrast,
the
prison
BOPs
portion
earlier
method
of
his
than
of
sentence:
he
would
calculation
he
will
otherwise.
grants
be
In
Hogge
an
to
[his]
concurrent
to
state
sentence
[his]
state
and
48
sentence.
months
E.R.
shall
86.
be
The
Warden says that, assuming Hogge earns all potential GCT, the
BOPs
calculation
method
ensures
Hogge
will
serve
an
equal
Hogge will serve the full 48-months for the concurrent portion
of
his
sentence
and
378
fewer
days
during
the
consecutive
court
the
intent
claimed
by
the
Warden.
Under
Hogge
would
serve
an
equal
amount
of
time
during
his
III.
For
the
reasons
given,
we
reverse
the
judgment
of
the
district court and remand with instructions that the court grant
Hogges habeas petition.
13