Darrell Lee Brown v. Richard H. Rison, Warden , 895 F.2d 533 ( 1990 )

WALLACE, Circuit Judge,

concurring in part and dissenting in part:

I concur in part A of the majority opinion. Because I find the Bureau of Prisons’s interpretation of 18 U.S.C. § 3568 to be reasonable, I dissent from part B and from the judgment.

The statute does not contain an explicit definition of the disputed phrase “in custody.” Using a dictionary definition, Brown’s time in the rehabilitation center might or might not be said to be “in custody.” In some respects, the conditions of his residence at the center imposed substantial restrictions on his freedom: Brown was required to be present, without outside contact, from 7 p.m. to 5 a.m.; he could not travel beyond a three-county area; he had to maintain a job and undergo regular drug testing. On the other hand, his position hardly resembled that of someone in jail: he was restricted to the center only at night, and could move freely (subject to the three-county limitation) without oversight during the day. I do not think that the clear language of the statute compels a resolution either way.

The legislative history is similarly unhelpful. The relevant phrase was inserted in the statute as part of the Bail Reform Act of 1966. The stated intent was to correct the inequity arising when a person who could not make bail spent a longer time in jail (before and after conviction) than a person who could qualify for bail, even though the two received an identical sentence for an identical offense. See H.R. Rep. No. 2058, 86th Cong., 2d Sess. 1-2, reprinted in 1960 U.S.Code Cong. & Admin. News 3288, 3288-90; H.R.Rep. No. 1541, 89th Cong., 2d Sess. 4, 16, reprinted in 1966 U.S.Code Cong. & Admin.News 2293, 2294, 2306. It thus appears that Congress was drawing a line between those out on bail and those still “in custody”— however “custody” is defined. Congress probably did not contemplate the situation of a person such as Brown, who was out on bail but nevertheless subject to significant restrictions on his freedom.

When the text and the legislative history of a statute are unclear upon a particular point, we grant “great deference to the interpretation given the statute by the officers or agency charged with its administration.” Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965) (Udall). “ ‘To sustain [an agency’s] application of [an ambiguous] statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.’ ” Id., quoting Unemployment Commission v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 250, 91 L.Ed. 136 (1946). Our sole inquiry is whether the agency’s construction of the disputed term is a “reasonable one.” Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 844-45, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984).

The Bureau of Prisons concluded that time spent in rehabilitation centers before trial “is not creditable as jail time since the degree of restraint provided by residence in a community center is not sufficient restraint to constitute custody within the meaning or intent of 18 USC 3568.” Bureau of Prisons Program Statement MISB No. 5880.24 § 5(b)(5) (September 5, 1979). The Bureau relied upon judicial authority, from this circuit and elsewhere, establishing that time spent on bail — even with significant restrictions — does not constitute time spent in custody for purposes of jail credit. In United States v. Robles, 563 F.2d 1308, 1309 (9th Cir.1977), cert. denied, 435 U.S. 925, 98 S.Ct. 1491, 55 L.Ed.2d 519 (1978), Robles was placed on bail with restrictions which required him to obey all laws and court orders, remain within the jurisdiction unless the court granted permission to travel, and keep his attorney informed about his address and employment. We held that such restriction did not place Robles “in custody” for purposes of section 3568. Id.; see also Pokaloff v. United States, 489 F.2d 727, 730 (5th Cir.1974) (time spent on “highly restricted bond” does not meet section 3568 custody requirement); United States v. Peterson, 507 F.2d 1191, 1192 (D.C.Cir.1974) (custody for section 3568 purposes “means detention or imprisonment in a place of confinement”).

The reasonableness of the Bureau’s interpretation of the word “custody” in section 3568 has previously been examined by two circuits. Both courts upheld the Bureau’s determination. Ramsey v. Brennan, 878 F.2d 995, 996 (7th Cir.1989) (citing our decision in Robles)-, United States v. Smith, 869 F.2d 835, 837 (5th Cir.1989). No court has ever found the Bureau’s position unreasonable. I do not believe we should do so and create a circuit conflict.

Brown’s residence at the center, while imposing significant restrictions, was a condition of his bail. The restraint upon his freedom was substantially less than it would have been had he remained in jail. It might well be reasonable to treat the rehabilitation center as a place of confinement. However, I cannot say that it was unreasonable not to do so, and thus to deny Brown jail credit. We should not overturn an agency determination when the agency selects one of several competing reasonable interpretations. Udall, 380 U.S. at 16, 85 S.Ct. at 801. I would affirm the ruling of the district court.