Thomas Hogge v. Eric Wilson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:14-cv-00314-JRS-RCY Copies to all parties and the district court/agency. [999819421]. Mailed to: Thomas Hogge. [15-7698]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7698

THOMAS KEVIN HOGGE,
Petitioner – Appellant,
v.
ERIC WILSON,
Respondent - Appellee.

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:

March 30, 2016

Decided:

May 11, 2016

Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Reversed and remanded by unpublished per curiam opinion.

Thomas Kevin Hogge, Appellant Pro Se.
Elizabeth Wu, Assistant
United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Thomas

Kevin

Hogge,

a

federal

prisoner,

appeals

the

district court’s order granting summary judgment to Warden Eric
Wilson and dismissing Hogge’s 28 U.S.C. § 2241 petition.

Hogge

argues that the Bureau of Prisons (“BOP”) improperly calculated
his release date by misapplying his Good Conduct Time (“GCT”).
We hold that the BOP’s calculation method is contrary to the GCT
statute, 18 U.S.C. § 3624.

We therefore reverse the district

court’s judgment and remand with instructions that the district
court grant Hogge’s habeas petition.

I.
In the late 1990s, Hogge was sentenced for various criminal
offenses in Virginia state court.
the

primary

custody

of

On June 28, 1999, while in

Virginia

authorities,

Hogge

was

transferred into federal custody under a writ of habeas corpus
ad prosequendum.

In February 2000, he was sentenced in federal

court to 96 months’ imprisonment for three counts of possession
of a firearm after a felony conviction in violation of 18 U.S.C.
§ 922(g)(1).

The district court noted that “48 months shall be

consecutive to [Hogge’s] state sentence and 48 months shall be

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E.R. 86. 1

served concurrent to [his] state sentence.”

sentencing, Hogge was returned to state custody.

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 BOP’s rather byzantine method of
calculating

Hogge’s

start

and

sentence.

Through

a

employee,

BOP

release

dates

Forest

for

his

Kelly,

federal

the

Warden

explains the BOP’s method as follows.
First,
E.R. 57.

the

BOP

determined

a

“target

date”

for

release.

To arrive at this date, the BOP began by ascertaining

the “tentative full term date” of the sentence by adding the
length of the consecutive sentence (48 months) to Hogge’s date
of release from his concurrent state sentence (May 1, 2013).
E.R. 57.

This calculation yielded a tentative full term date of

April 30, 2017.

Next, to arrive at the target release date, the

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 Hogge’s target release date as October 24, 2016.
Second, the BOP determined the commencement date of Hogge’s
96-month

sentence.

“preliminary

1

start

To

arrive

date”

Record citations
district court’s docket.

at

by

are

this

date,

subtracting

to

3

the

the

Electronic

the

BOP

full

Record

set

a

96-month

on

the

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sentence from the target release date.
date as October 25, 2008.

E.R. 57.

The BOP calculated that

Then, the BOP added to this

date the amount of GCT that can be earned during a 96-month
sentence—376

days.

This

resulted

in

a

sentence-commencement

date of November 5, 2009.
This method of calculation has two results important to
this case.

First, Hogge would serve an equal number of days

during the consecutive and concurrent portions of his sentence
if he were to receive all available GCT.
earned

during

the

concurrent

portion

of

Second, the GCT Hogge
his

sentence

has

no

effect on the total number of days he will spend in prison.
Instead, the GCT from Hogge’s concurrent sentence merely changes
the

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.

Relevant to this appeal, he argued that

the BOP improperly calculated the start and end dates of his
sentence.

For the start date, Hogge argued that the BOP should

have simply subtracted 48-months from the day he was transferred
to the federal government’s custody.
date,

he

method.

maintained

that

the

BOP

As for the target release
should

use

the

following

First, he said the BOP should calculate a tentative

full term date by adding 48 months to the date he was released
from state custody.

Here, that date is April 30, 2017—the same
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tentative full term date that the BOP used.

Next, Hogge argued

that his target release date should be calculated by subtracting
from the tentative full term date all of the GCT he could earn
over a 96-month sentence.

Hogge calculated that date as April

18, 2016.
The

Warden

alternative,

filed

for

a

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

BOP’s

calculation was entitled to Chevron deference. 2
court

subsequently

recommendation,

adopted

granting

the
the

magistrate
Warden’s

of

The district

judge’s
motion

method

report

for

and

summary

judgment and dismissing Hogge’s petition.
This appeal followed.

II.
We review de novo the district court’s denial of habeas
corpus relief and its grant of summary judgment to the Warden.
Fontanez v. O’Brien, 807 F.3d 84, 86 (4th Cir. 2015); Bostick v.
Stevenson, 589 F.3d 160, 163 (4th Cir. 2009).

2

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837 (1984).

5

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Hogge argues that the district court erred by analyzing the
BOP’s method of calculation under a Chevron-deference framework.
Instead, Hogge maintains that the Skidmore-deference framework
applies,

and

that

the

BOP’s

method

rejected as contrary to federal law. 3

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

Instead, “such strong deference ‘is limited
where

(1)

Congress

has

given

the

agency

authority to make rules carrying the force of law and (2) the
agency’s

interpretation

authority.’”
Safety

&

is

rendered

in

the

exercise

of

that

Knox Creek Coal Corp. v. Sec’y of Labor, Mine

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).

3

Skidmore v. Swift & Co., 323 U.S. 134 (1944).

6

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While the BOP has the authority to resolve ambiguities in
the GCT statute, Yi v. Fed. Bureau of Prisons, 412 F.3d 526, 534
& n.5 (4th Cir. 2005), we have held that BOP program statements
are not the sort of agency interpretations that can give rise to
Chevron deference, see Cunningham v. Scibana, 259 F.3d 303, 306
(4th Cir. 2001) (explaining that a “BOP[] program statement is
an internal agency guideline that has not been subjected to the
rigors of notice and comment rulemaking” and therefore is not
entitled to Chevron deference); see also Tablada v. Thomas, 533
F.3d 800, 806 (9th Cir. 2008) (concluding that Program Statement
5880.28 is not entitled to Chevron deference because it “does
not purport to carry the force of law and was not adopted after
notice and comment”); Trowell v. Beeler, 135 F. App’x 590, 595
(4th

Cir.

statement

2005)
was

(per

not

curiam)

entitled

lacked the force of law).
the

district

court

that

(holding

to

Chevron

that

a

deference

BOP

program

because

it

Moreover, the Warden did not argue in
the

BOP

is

entitled

to

Chevron

deference, and he offers no reason on appeal why BOP program
statements should trigger analysis under the Chevron framework.
Consequently,

we

conclude

that

the

district

court

erred

in

granting the BOP Chevron deference.
Although the BOP is not entitled to Chevron deference, its
method

of

calculation

is

worthy

Skidmore-deference framework.

of

our

respect

under

the

We therefore will defer to the
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BOP’s method “to the extent it has the ‘power to persuade.’”
Knox Creek, 811 F.3d at 160 (quoting Skidmore, 323 U.S. at 140).

B.
The

BOP’s

persuasive

method

under

of

Skidmore

calculation

because

it

is

conflicts

insufficiently
with

the

GCT

statute, 18 U.S.C. § 3624.
The most glaring conflict is that the BOP’s calculation
method undermines § 3624(b)(1) by rendering worthless any GCT
earned during the concurrent portion of Hogge’s sentence.

This

is at odds with the clear purpose of the GCT statute to provide
inmates with an incentive to comply with prison rules.

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)

Under the BOP’s method of calculation,

Hogge’s conduct during the concurrent portion of his sentence is
immaterial

to

the

length

of

time

he

will

spend

in

prison.

Instead, the GCT he earned during the concurrent portion of his
sentence simply altered the day the BOP retroactively deemed as
his sentence-commencement date.
The
between

Warden
the

does

BOP’s

not

respond

calculation

directly

method
8

and

to

this

§ 3624(b).

conflict
In

a

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similar case, however, a district court rejected a BOP argument
that there is no conflict because “[a] federal inmate serving
the

concurrent

portion

of

his

sentence

in

state

prison

is

motivated to comply with state prison rules in order to get
state-law merit time allowances, which will shorten the time
period

until

his

release

date

from

state

prison.”

Hood

v.

Grondolsky, No. 12-11368-JGD, 2012 WL 6061211, at *5 (D. Mass.
Dec. 5, 2012) (alteration in original).

The court explained

that “[t]his may or may not be true” depending on state law,
and,

irrespective

of

state

law,

“there

is

no

reason

why

a

prisoner should not also be motivated to shorten his federal
prison sentence in accordance with federal law.”
the court’s reasoning persuasive.

Id.

We find

See also Hill v. Cowin, 717

F. Supp. 2d 268, 270–71 (N.D.N.Y. 2010) (concluding that a BOP
method of calculation similar to the one in the instant case
conflicted with § 3624(b) because it undermined the incentive
created by the statute).
In contrast to the BOP’s method, Hogge’s suggested method
of calculation honors the purpose of § 3624(b).

Under Hogge’s

calculation, all of the GCT he earned over the course of his
entire federal sentence reduces the amount of time he ultimately
will spend in prison.
have

served

as

an

Thus, using Hogge’s method, GCT would

incentive

to

9

comply

with

prison

rules

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throughout

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the

entirety

of

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his

federal

sentence,

just

as

contemplated by the GCT statute.
A second conflict between the BOP’s calculation method and
the GCT statute arises from the BOP’s award of Hogge’s GCT on
the front end of his sentence.

Section 3624(b)(2) says that

“credit awarded under this subsection . . . shall vest on the
date the prisoner is released from custody.”

By applying some

of Hogge’s GCT to the front end of his sentence to determine the
date his sentence commenced, the BOP caused Hogge’s GCT not to
“vest

on

the

§ 3624(b)(2).
calculation

date

[he]

was

Accordingly,

method

released

we

impermissibly

conclude
conflicts

from
that

with

custody.”
the

BOP’s

§ 3624(b)(2).

See Hill, 717 F. Supp. 2d at 270 (explaining that the BOP’s
award of “GCT up front” seemingly conflicted with § 3624(b)(2)).
Additionally, the BOP’s calculation method conflicts with
§ 3624(a).

Section 3624(a) says that “[a] prisoner shall be

released by the Bureau of Prisons on the date of the expiration
of the prisoner’s term of imprisonment, less any time credited
toward the service of the prisoner’s sentence as provided in
subsection (b).”
“the

date

of

The BOP’s proposed target release date is not
the

imprisonment,

less

Instead,

BOP’s

the

expiration
any

of

[GCT].”

target

release

the

prisoner’s

§ 3624(a)
date

is

term

of

(emphasis

added).

the

of

date

the

expiration of Hogge’s term of imprisonment less half of his GCT.
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See Hill, 717 F. Supp. 2d at 270 (explaining that a similar BOP
calculation method conflicted with 3624(a)); see also Hood, 2012
WL

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

partly consecutive sentences.”
Hood

and

Hill,

calculation method.

the

serving

partly

concurrent,

Appellee’s Br. at 17.

district

courts

rejected

In both

the

BOP’s

See Hood, 2012 WL 6061211, at *1; Hill, 717

F. Supp. 2d at 269–70.

In Williams v. Maye, No. 13-3005-RDR,

2013 WL 5291955 (D. Kan. Sept. 19, 2013), however, the court
found no error in the BOP’s method of calculation.

The Williams

court, however, did so without explaining its analysis.

For the

reasons stated above, we agree with the conclusions of Hill and
Hood instead of Williams.
The Warden presents two reasons why we should reject Hood
and Hill and affirm the district court’s judgment.

First, he

argues that the method of calculation requested by Hogge and
adopted by the courts in Hill and Hood “creates the arbitrary
and

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

longer than necessary service of the concurrent portion of the
federal sentence.”

Appellee’s Br. at 18.
11

We fail to grasp the

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inequity claimed by the Warden.

Hogge’s method of calculation

allows him to receive an actual benefit for his good behavior
during

the

released

concurrent

from

contrast,

the

prison
BOP’s

portion
earlier
method

of

his

than
of

sentence:

he

would

calculation

he

will

otherwise.
grants

be
In

Hogge

an

illusory benefit for his good behavior during the concurrent
portion of his sentence, as it has no effect on the length of
time he will spend in prison.
Second, the Warden argues that unlike Hogge’s method of
calculation, the BOP’s method is consistent with the sentencing
court’s intent that “48 months [of Hogge’s sentence] shall be
consecutive
served

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
BOP’s

calculation

method

ensures

Hogge

will

serve

an

equal

number of days in the concurrent and consecutive portions of his
sentence.

But under Hogge’s method, the Warden explains that

Hogge will serve the full 48-months for the concurrent portion
of

his

sentence

and

378

fewer

days

during

the

consecutive

portion of his sentence.
While we doubt the sentencing court’s intent could trump
the demands of the GCT statute, we also do not ascribe to the
sentencing

court

the

intent

claimed

by

the

Warden.

Under

Hogge’s calculation method and absent the application of GCT, he
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would serve half of his federal sentence in state custody and
half in federal custody.
court’s order.

This is consistent with the sentencing

Moreover, the Warden fails to point to anything

that suggests that the sentencing court’s intent was to ensure
that

Hogge

would

serve

an

equal

amount

of

time

during

his

concurrent and consecutive sentences after taking into account
GCT.

Consequently, we reject the Warden’s argument that Hogge’s

method of calculation fatally undermines the sentencing court’s
intent.

III.
For

the

reasons

given,

we

reverse

the

judgment

of

the

district court and remand with instructions that the court grant
Hogge’s habeas petition.

As it appears that Hogge is entitled

to be released immediately, we direct the Clerk to issue the
mandate forthwith.
REVERSED AND REMANDED

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