RAYMOND WOODS, PETITIONER V. UNITED STATES OF AMERICA No. 89-6331 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-9) is reported at 888 F.2d 653. JURISDICTION The judgment of the court of appeals was entered on October 20, 1989. The petition for a writ of certiorari was filed on December 19, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner was deprived of his equal protection rights when, consistent with 18 U.S.C. 3585, he was not given credit on his prison sentence for time he had spent in a residential treatment center while released on bond prior to the commencement of his sentence. STATEMENT Petitioner entered a plea of guilty in the United States District Court for the District of Colorado on one count of conspiring to rob and assault a federal officer, in violation of 18 U.S.C. 371. He was sentenced to 27 months' imprisonment. 1. On February 4, 1988, petitioner was arrested and charged with assault on a federal officer. On February 8, 1988, the district court released him on bond with the condition that he reside at a community treatment center. On March 2, the district court modified petitioner's bond to enable him to participate in a work release program. Petitioner pleaded guilty on April 14 to conspiring to rob and assault a federal officer, in violation of 18 U.S.C. 371. On April 21, petitioner's bond was modified to enable him to spend weekends at home pending sentence. Petitioner was sentenced on June 24 to 27 months' imprisonment. At sentencing, petitioner unsuccessfully sought a credit against his sentence for the time he had resided at the community treatment center. Pet. App. 2. 2. The court of appeals affirmed the district court's refusal to credit the time petitioner had spent at the community treatment center. Pet. App. 3-9. The court held that 18 U.S.C. 3585, which governs credit for time served prior to trial, does not entitle defendants to credit for pre-sentence custody in a conditional release environment such as a community treatment center. Section 3585, held the court, entitles a defendant to receive credit only for time spent in actual custodial incarceration -- not for time spent on conditional release. Pet. App. 4-7. The court also held that giving credit to residential treatment center residents serving their sentences -- while denying similar credit to residents, like petitioner, who had not yet commenced their sentences -- does not violate equal protection principles. Pet. App. 7-9. The court explained that the two categories of residents are not "similarly situated" for equal protection purposes. Id. at 8. "Post-sentence residents," the court noted, "have been adjudicated guilty and are serving their sentence (at the treatment center) pursuant to the Attorney General's discretion to determine the conditions of punishment." Ibid. Pre-sentence residents, by contrast, "are not being punished; they are conditionally released to (the treatment center) to protect the community and assure their presence at trial and sentencing." Ibid. ARGUMENT Petitioner renews his contention (Pet. 2-7) that equal protection principles entitle him to credit against his prison sentence for the time he spent at the residential center while released on bond prior to the commencement of his sentence. The court of appeals' decision rejecting that claim is correct and does not conflict with any decision of this Court or of any other court of appeals. Further review is therefore unwarranted. The statute governing credit for time served in custody prior to commencement of sentence, 18 U.S.C. 3585, provides in pertinent part: A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences -- (1) as a result of the offense for which the sentence was imposed * * *. 18 U.S.C. 3585(b). Section 3585, effective November 1, 1987, replaced 18 U.S.C. 3568 (1982), /1/ which required that a defendant receive credit for time spent "in custody" prior to commencement of his sentence; however, Section 3585 did not effect any substantive change in the old statute. Pet. App. 4; S. Rep. No. 225, 98th Cong., 2d Sess. 128-129 (1984). The courts have uniformly held that the "custody" contemplated by Section 3568 is actual custodial incarceration, and that the statute does not apply to conditions -- no matter how restrictive -- imposed upon a person released on bail pending commencement of his sentence. United States v. Mares, 868 F.2d 151, 152 (5th Cir. 1989); Villaume v. United States Department of Justice, 804 F.2d 498, 499 (8th Cir. 1986), cert. denied, 481 U.S. 1022 (1987); United States v. Robles, 563 F.2d 1308, 1309 (9th Cir. 1977), cert. denied, 435 U.S. 925 (1978); United States v. Peterson, 507 F.2d 1191 (D.C. Cir. 1974); Polakoff v. United States, 489 F.2d 727, 730 (5th Cir. 1974). More particularly, the courts have also held that time spent in a halfway house pending commencement of sentence should not be credited against a prisoner's sentence. See Ramsey v. Brennan, 878 F.2d 995, 996 (7th Cir. 1989); United States v. Smith, 869 F.2d 835 (5th Cir. 1989); Brown v. Rison, 673 F. Supp. 1505, 1508 (C.D. Calif. 1987); Anderberg v. Martin, 679 F. Supp. 1034, 1036 (W.D. Okla. 1987). The Bureau of Prisons has taken the same position in its Policy Statement 5880.24. /2/ Petitioner contends, however, that by allowing credit to halfway-house residents serving their sentences while denying such credit to residents who have not commenced their sentence, Section 3585 violates equal protection principles. There is no merit to that claim. As an initial matter, petitioner is not similarly situated to halfway house residents who are already serving their sentence. As the court of appeals correctly explained (Pet. App. 8), "(p)ost-sentence residents have been adjudicated guilty and are serving their sentence at (the residential treatment center) pursuant to the Attorney General's discretion (under 18 U.S.C. 4001(b)) to determine the conditions of punishment." /3/ Pre-sentence residents, by contrast, are not being punished; rather, they have been conditionally released to the residential treatment center in order to protect the community and assure their presence at trial and sentencing. /4/ See Anderberg v. Martin, 679 F. Supp. at 1036-1037 ("petitioner was not similarly situated to others in the community treatment center inasmuch as his stay there was a special condition of his parole. * * * He was not there as a direct result of his federal conviction for distribution of cocaine, and he was therefore not in custody at the community treatment center in connection with the offense or acts for which sentence was imposed"); Brown v. Rison, 673 F. Supp. at 1508-1509. But even if petitioner were "similarly situated" to residents who are already serving their sentences, the disparity in treatment permitted by Section 3585 is rationally related to a legitimate governmental interest. Congress amended 18 U.S.C. 4082 in 1965 to allow service of a sentence at a community treatment center, in an effort to facilitate the rehabilitation of persons convicted of an offense against the United States. Pub. L. 89-176, 79 Stat. 674 (1965). As Congress explained at the time: Testimony before the ad hoc subcommittee and the studies of the National Penitentiaries Subcommittee indicate that the period immediately following release from prison is most critical. It is during this period that all too many offenders get back into trouble as a result of an almost total lack of resources, guidance, employment, and even food and shelter. The provision of the bill would create an organized means of accomplishing the re-absorption of ex-prisoners into the community, reducing the crime rate, and thereby promoting the public safety. S. Rep. No. 613, 89th Cong., 1st Sess. 2 (1965). Thus, the goal of this legislation was "to facilitate the re-entry of convicts into society by making the last stage of their confinement transitional * * *." Ramsey v. Brennan, 878 F.2d at 997. "There can be little doubt that permitting service of the remainder of a sentence in a (community treatment center) where the prisoner can be re-integrated into the community is a rational means of achieving a legitimate goal." Brown v. Rison, 673 F. Supp. at 1510. By contrast, petitioner's stay at the community treatment center did not follow his custodial incarceration; accordingly, granting him the credit he seeks would not serve the purpose of "re-integrat(ing) him into the community" (Brown, 673 F. Supp. at 1510). As the court explained in Ramsey, 878 F.2d at 997, Section 4082's policy of providing assistance to prisoners during the transitional period between confinement and freedom "has no application to a prisoner moving in the opposite direction * * *." /5/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General DEBORAH WATSON Attorney FEBRUARY 1990 /1/ 18 U.S.C. 3568 (1982) was repealed effective November 1, 1987, by Pub. L. No. 98-473, tit. II, Sections 212(a)(2) and 235(a)(1), 98 Stat. 1987, 2031 (1984). /2/ Policy Statement 5880.24(5)b(5) provides in pertinent part: Time spent in residence in a residential community center (or a community based program located in a Metropolitan Correctional Center of jail) under the provisions of 18 U.S.C. 3146 as a condition of bail or bond, including the "Pretrial Services" program (18 U.S.C. 3152-3154), 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 U.S.C. 3568. Also, a "highly restrictive" condition of bail or bond, such as requiring the defendant to report daily to the U.S. Marshal, is not considered as time in custody. However, the time spent in a jail type facility (not including a community based program located in a Metropolitan Correctional Center or jail) as a condition of bail or bond is creditable as jail time because of the greater degree of restraint. /3/ 18 U.S.C. 4001(b), which authorizes the Attorney General to house prisoners in residential treatment centers (halfway houses), provides in pertinent part: (1) The control and management of Federal penal and correctional institutions, except military or naval institutions, shall be vested in the Attorney General * * * (2) The Attorney General may establish and conduct industries, farms, and other activities and classify the inmates; and provide for their proper government, discipline, treatment, care, rehabilitation, and reformation. /4/ 18 U.S.C. 3142(c), which authorizes a court to grant a criminal defendant conditional release, provides in pertinent part: (1) If the judicial officer determines that (release on personal recognizance) will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community, such judicial officer shall order the pretrial release of the person -- (B) subject to the least restrictive further condition, or combination of conditions, that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community * * *. /5/ Contrary to petitioner's claim (Pet. 4-5), the decision of the court of appeals does not conflict with that of the Eleventh Circuit in Johnson v. Smith, 696 F.2d 1334 (1983). In Johnson, the defendant sought credit against his prison sentence for time spent in a community treatment center prior to commencement of his sentence. The district court ordered that the defendant be credited with time spent in the center. The court found that the government had offered neither a rational reason for the distinction between pre-sentence and post-sentence detainees, nor had it in any way refuted the contention that the defendant was similarly situated to post-sentence detainees. Accordingly, the court held that the failure to give the defendant credit violated his equal protection rights. The court of appeals affirmed. The court declined to allow the government to argue for the first time on appeal that the defendant was not similarly situated to post-sentence detainees or that rational reasons justified the difference in treatment; the court therefore affirmed on the particular record (or lack thereof) established in the trial court. 696 F.2d at 1338. In light of the meager record, however, the court emphasized the limited reach of its decision (id. at 1338-1339): We do not base our decision on any determination as to whether or not post-sentence and pre-sentence detainees are always similarly situated under (18 U.S.C. 3568) or whether or not a rational reason for disparate treatment of the two groups could ever be shown. Further, this decision does not establish a constitutional or statutory right to credit for all pre-sentence detainees for time spent at this center or under conditions similar to the center.