1. Background
The Petitioner-Appellant appeals from the district court’s denial of a petition for a writ of habeas corpus, under 28 U.S.C. § 2241, in which he contended that the Bureau of Prisons (“BOP”) improperly denied him “earn[ed] time credits” under the First Step Act of 2018 (“FSA”), Pub. L. No. 115-391, 132 Stat. 5194. See Op. at 4-6.
Under the FSA, “[a] prisoner is not eligible to earn time credits if he ‘is serving a sentence for a conviction’ of certain enumerated offenses” that are listed in 18 U.S.C. § 3632(d)(4)(D). See Op. at 3 (quoting § 3632(d)(4)(D)).
Here, the Petitioner, back in 2008, pleaded guilty to a 2-count indictment. And he received concurrent prison sentences of 120 months’ on an ineligible offense, and 235 months’ for an offense not listed in § 3632(d)(4)(D).
Because Petitioner has served the 120-month sentence imposed on the ineligible offense (a child porn conviction), he argues that he is entitled to earn time credits under the FSA (of 2018) on the remainder of his sentence. “He contends that once he completed serving the maximum sentence on his ineligible conviction — possession of child pornography — he was no longer ‘serving a sentence for’ an ineligible offense[.]” Op. at 4 (quoting § 3632(d)(4)(D)). Thus, Petitioner argues, he is “eligible to earn FSA time credits for the remainder of his term of imprisonment.” Op. at 3.
The BOP, however, contends that Petitioner isn’t eligible for FSA time credits “for his entire aggregated term of imprisonment” (not just for the term of the ineligible offense) because “18 U.S.C. § 3584(c) — which states that ‘[m]ultiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment’ — applies to the BOP’s administration of the FSA time credit program.” See Op at 3 (emphasis added) (quoting § 3584(c)). Under the “aggregation provision.” the BOP contends, a prisoner “‘is serving a sentence for any offense that is part of his aggregated term of imprisonment.” Id..
The Circuit agreed with the BOP.
2. No FSA time credit if any offense of conviction “that is part of [a prisoner’s] aggregated term of imprisonment” is an (ineligible) offense listed in § 3632(d)(4)(D).
In 2018, Congress enacted the FSA to, among other things, “provide incentives and rewards for successful participation in evidence-based recidivism reduction programs or productive activities[,]” in accordance with 18 U.S.C. § 3632(a)(6) (§ 3632, of Title 18, is titled, “Development of risk and needs assessment system”) . The FSA thus allows an “eligible prisoner” to earn time credits by “successfully participat[ing] in certain evidence-based recidivism reduction programs or productive activities.” Op. at 4 (citing id. § 3632(d)(4)(D)). “The time credits are applied toward pre-release custody or supervised release.” Op. at 4 (citing id. § 3632(d)(4)(C)).
But prisoners can’t earn time credits if they are “‘serving a sentence for a conviction’” for an offense listed in § 3632(d)(4)(D) — which includes possession of child pornography under 18 U.S.C. § 2252. See Op. at 3, 4 (quoting § 3632(d)(4)(D)); see also id. § 3632(d)(4)(D)(xli) (§ 2252 offenses are ineligible for the credit).
The Circuit — based on its construction of §§ 3632 and 3584(c), see Op. at 7-11 — reasoned that “[t]he FSA tasks the BOP with administering the FSA time credit program under the supervision of the Attorney General.” Op. at 8 (citations omitted). And under 18 U.S.C. § 3584(c), for “administrative purposes,” the BOP is required to treat “[m]ultiple terms of imprisonment ordered to run consecutively or concurrently . . . as a single, aggregate term of imprisonment.”18 U.S.C. § 3584(c) (emphasis added); see Op. at 8 .
So, in assessing a prisoner’s eligibility for FSA time credit, the BOP must evaluate all of a prisoner’s offenses of conviction. And if any one of them is on § 3632(d)(4)(D)’s list, the person can’t earn any credits. Op. at 3-12.
The Circuit states: “We conclude that, pursuant to the aggregation provision, a prisoner ‘is serving a sentence for’ any offense that is part of his aggregated term of imprisonment. Accordingly, the BOP must aggregate a prisoner’s sentence pursuant to § 3584(c) for the purpose of determining his eligibility for FSA time credits under § 3632(d)(4).” Op. at 3 (emphasis added).
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