[00:00:01] Speaker 00:
Good morning.

[00:00:02] Speaker 01:
Good morning.

[00:00:05] Speaker 01:
And may it please the court.

[00:00:06] Speaker 01:
Hunter Haney for Leon Gonzalez.

[00:00:09] Speaker 01:
I hope to reserve two minutes for a bottle and I'll keep an eye on my clock.

[00:00:13] Speaker 01:
This appeal concerns the important question of whether First Step Act earned time credits can be applied to reduce a term of supervised release.

[00:00:22] Speaker 01:
The FSA's plain text, broader context and purpose all confirm the answer to that question is yes.

[00:00:29] Speaker 01:
The FSA's text to start provides that, quote, time credits shall be applied toward time in pre-release custody or supervised release.

[00:00:39] Speaker 01:
The most harmonious meaning of this phrase is that Congress has provided a time credit scheme

[00:00:44] Speaker 01:
where credits can be earned and then used to fulfill, that is, reduce, the time to be served while in pre-release custody or supervised release, a construction that is consistent with language Congress has used in several other time credit statutes set forth in our briefs.

[00:01:00] Speaker 01:
The government focuses, however, exclusively on the word toward, alleging that the use of toward means that credits can only be applied to bring the start of pre-release custody and supervised release closer.

[00:01:15] Speaker 01:
But what this does is it plucks one definition out of the dictionary and forces it into this unique statutory context of a credit system.

[00:01:24] Speaker 01:
Toward isn't being used in some sort of directional sense here.

[00:01:28] Speaker 01:
It is being used in the way that one describes paying toward a debt, dollar for dollar, or here, day for day.

[00:01:35] Speaker 01:
Ultimately, the government's gloss defies common sense.

[00:01:39] Speaker 01:
The government also provides no example of another time credit statute operating in this way.

[00:01:45] Speaker 01:
It fails to consider the meaning of other words in the provision.

[00:01:49] Speaker 01:
It treats pre-release custody and supervised release differently despite their adjacent textual placement, and it renders the words time in superfluous.

[00:01:59] Speaker 01:
Now, the government says that its reading treats pre-release custody and supervised release the same because it allows for early entry into both.

[00:02:08] Speaker 01:
But the statute actually provides a pretty elaborate time credit scheme, not merely a mechanism for transfer.

[00:02:14] Speaker 01:
So the government's argument really ultimately begs the question of why bother having a time credit scheme at all if not to effectuate day-for-day reductions.

[00:02:22] Speaker 01:
It's undisputed that the BOP can effectuate reductions in some respect, because that's what the government concedes that the BOP did here when it transferred Gonzalez out of pre-release custody early to supervise release.

[00:02:36] Speaker 01:
So ultimately, the government's reading effectively rewrites time in as time before.

[00:02:42] Speaker 01:
However, as the court explained in Korotky last year, a decision that Judge Mendoza authored, a statute has to be construed to give full effect to all of its parts in light of context and common sense.

[00:02:56] Speaker 01:
And that is what Gonzalez's reading does.

[00:03:02] Speaker 01:
So although it's textual clarity on this point makes it unnecessary to address legislative history also supports our position.

[00:03:11] Speaker 01:
The FSA was a significant criminal justice bipartisan reform that was designed to incentivize recidivism reduction programming and reverse systemic inequities.

[00:03:22] Speaker 01:
And because the FSA is a remedial statute,

[00:03:25] Speaker 01:
the time credit framework should be interpreted broadly with due regard to what would maximize programming participation.

[00:03:33] Speaker 01:
It bears noting that the House initially passed a version of this statute that did not include any language regarding supervised release.

[00:03:41] Speaker 01:
And then the Senate added that language specifically to cover, in our position, so that time credits could cover reductions in supervised release.

[00:03:53] Speaker 01:
Now, the government argues that promising reductions in supervised release won't adequately incentivize programming participation.

[00:04:01] Speaker 01:
But that is wrong.

[00:04:02] Speaker 01:
A reduction in one sentence is undoubtedly a significant incentive to participate in more programming.

[00:04:08] Speaker 01:
If the BOP's construction ultimately of this provision is upheld, earned time credits will continue to be untimely applied, which is why we're in this position in the first place.

[00:04:19] Speaker 01:
And they will routinely go unused.

[00:04:22] Speaker 01:
And one would naturally expect less programming participation.

[00:04:26] Speaker 02:
Council, can you explain that?

[00:04:28] Speaker 02:
What exactly do you mean by that?

[00:04:30] Speaker 01:
Because as the statute recognizes,

[00:04:35] Speaker 01:
The premise of this whole time credit program is to incentivize programming participation through providing these time credits.

[00:04:49] Speaker 01:
So, you know, I think we used the example of the 10-year-old in our brief.

[00:04:54] Speaker 01:
You know, another more adult example would be credit card points.

[00:04:57] Speaker 01:
You know, you offer someone points to,

[00:05:02] Speaker 01:
toward to be used as a credit toward a trip to Hawaii?

[00:05:06] Speaker 02:
Let's use the examples that we would face in this circumstance.

[00:05:12] Speaker 02:
So let's say someone received, not talking about a 10-year-old, but a 10-year sentence.

[00:05:17] Speaker 02:
And that person was involved in a couple of programs and maybe have

[00:05:27] Speaker 02:
Is there an incentive under the government's reading for them to participate in additional recidivism programs?

[00:05:36] Speaker 01:
I'm sorry, I may be misunderstanding the question, Your Honor, but our position is the more programming that someone can participate in, the more time-credit incentives that there are available to someone through participation in these programs, the more likely it is ultimately that someone's going to actually participate in those programs.

[00:05:59] Speaker 01:
And I realize that

[00:06:01] Speaker 01:
The statute also mandates participation of these programs, of course, but by ultimately putting prisoners in a position where they are not able to use, at least in my client's case, even their credits toward pre-release custody in many cases because the BOP is not timely applying the statute.

[00:06:24] Speaker 01:
It ultimately sends the message, why participate in these programs?

[00:06:27] Speaker 01:
Because I think the end result of the BOP's position is at most one year of credits under 3624G3 can be applied to reduce time.

[00:06:40] Speaker 01:
So at most you have 365 days of credits that you can get and there is no reason I think after that point to actually participate in these programs.

[00:06:51] Speaker 00:
Council, accepting your argument creates a circuit split with the 11th Circuit, correct?

[00:06:56] Speaker 00:
I recognize that theirs is not a published case, but they have interpreted this provision.

[00:07:01] Speaker 01:
Right.

[00:07:02] Speaker 01:
So Guerriero, the 11th Circuit decision is, of course, as Your Honor mentioned, unpublished, sparsely reasoned.

[00:07:08] Speaker 01:
It's seemingly involved an uncounseled petitioner who didn't raise the arguments that we raise here.

[00:07:12] Speaker 01:
It also relied on the Calabrese decision from the Northern District of Ohio, which is flawed for many of the reasons set forth in our briefs.

[00:07:20] Speaker 00:
And I would encourage the court to take... It cites to quite a few district court decisions that have gone that way, right?

[00:07:28] Speaker 01:
It did cite to some, I believe the primary authority it relied on was Calabrese.

[00:07:34] Speaker 01:
And several courts have since followed suit, district courts have followed suit, and just pretty much adhered to Calabrese without providing much additional reasoning.

[00:07:43] Speaker 01:
But I would point your honors to the recent decision out of the District Court of Connecticut, Rivera Perez, which very persuasively sort of picks apart the arguments in Calabrese and Guerriero

[00:07:55] Speaker 01:
and shows that Guerriero is not persuasive.

[00:07:59] Speaker 01:
So I think given the tremendous stakes of interpreting the statute correctly and the potential broad effects of it, we do think this case and these circumstances call out for departing from Guerriero, as this court did in Williams v. King, departing from out-of-circuit precedent for similar reasons that, you know, it wasn't very specifically reasoned.

[00:08:20] Speaker 01:
And I think were the court to publish a decision on this issue favorable to Gonzalez, the 11th Circuit, of course, wouldn't be bound to disagree with its unpublished decision in Garriero.

[00:08:32] Speaker 01:
And it would be up to them, ultimately, to create a split with this court's decision.

[00:08:37] Speaker 00:
Thank you.

[00:08:37] Speaker 01:
Unless the court has any further questions, I'll reserve my remaining time.

[00:08:42] Speaker 01:
Thank you.

[00:08:55] Speaker 03:
Good morning.

[00:08:56] Speaker 03:
Kedar Bhatia for the United States.

[00:08:57] Speaker 03:
May it please the court.

[00:08:59] Speaker 03:
I want to start with the mechanics of the earned time credits because I think they're relevant to the government's argument here.

[00:09:05] Speaker 03:
And I heard at least some argument from the defense that was also in the reply brief that misstates the way ETCs work and the government's position on it.

[00:09:14] Speaker 03:
Under the First Step Act, an inmate can earn earned time credits for completing recidivism reduction programming.

[00:09:20] Speaker 03:
When their earned time credits equal the amount of time they have left in custody, those earned time credits go into effect.

[00:09:28] Speaker 03:
If the individual has up to 365 days, they can move into supervised release.

[00:09:33] Speaker 03:
If they have in excess of 365 days,

[00:09:36] Speaker 03:
they're eligible to go into pre-release custody earlier.

[00:09:40] Speaker 03:
Pre-release custody is a sort of middle ground between the harshest form of incarceration and supervised release.

[00:09:47] Speaker 03:
It's things like home confinement.

[00:09:48] Speaker 03:
In this case, defendant was actually already on home confinement due to COVID relief.

[00:09:53] Speaker 03:
So in this case, the government's interpretation and the one reached by the vast majority of courts does give full effect to these earned time credits.

[00:10:03] Speaker 03:
The credits that an inmate earns by completing these recidivism reduction programs can allow that person to go into pre-release custody earlier.

[00:10:12] Speaker 03:
Before the First Step Act, there was a limit of one year.

[00:10:16] Speaker 03:
After the First Step Act, it can be any amount of time that the defendant earns through their credits going into pre-release custody.

[00:10:22] Speaker 03:
In addition, they can also leave the BOP custody earlier altogether by up to a year based on these credits.

[00:10:31] Speaker 02:
Council, I guess if you can clarify something for me, because I've looked at the statute, because that's where you want to start, right?

[00:10:38] Speaker 02:
You want to start with the language of the statute.

[00:10:41] Speaker 02:
And 3632 D4C says, shall be applied toward time in pre-release custody, consistent to what you're saying.

[00:10:50] Speaker 02:
But it has, importantly and significantly, the additional language of or supervised release.

[00:10:58] Speaker 02:
I think if Congress wanted to say

[00:11:01] Speaker 02:
just pre-release custody, they would have said that.

[00:11:04] Speaker 02:
They would have said that we're not talking about giving credit towards supervised release.

[00:11:11] Speaker 02:
They would have just not included that.

[00:11:14] Speaker 02:
So we have to give those words meaning.

[00:11:17] Speaker 02:
And could you explain to me how, in your view, we give those words meaning?

[00:11:22] Speaker 03:
Yes, Your Honor.

[00:11:23] Speaker 03:
So we are giving those words meaning because the time credits

[00:11:28] Speaker 03:
can be used to move a person towards pre-release custody earlier and be used to move them into supervised release earlier.

[00:11:35] Speaker 03:
And that's the language of the first sentence.

[00:11:39] Speaker 03:
And then it's also read in harmony with the second sentence, which puts that into effect.

[00:11:43] Speaker 03:
So it gives meaning to every part of D4C.

[00:11:47] Speaker 02:
That seems to be a tortured reading when you look at how Congress used toward, because that's the word that you're focusing on,

[00:11:57] Speaker 02:
In another section, and that's 3624, there we're talking about regarding releasing of prisoners.

[00:12:08] Speaker 02:
There Congress used – we're talking about good time credits, the time that folks are given.

[00:12:14] Speaker 02:
And the way they use towards there is giving that credit towards the time when they are released.

[00:12:23] Speaker 02:
Why shouldn't we use that meaning instead of the meaning that you suggest?

[00:12:34] Speaker 03:
What Pulsifer, I think Pulsifer put it the best way, when there are two grammatically plausible readings, the court has to look to the context.

[00:12:44] Speaker 03:
And in the context you described, Your Honor, with good time credits, Congress could not have been more clear.

[00:12:50] Speaker 03:
It was explicit.

[00:12:51] Speaker 03:
Good time credits go towards reducing a term of imprisonment.

[00:12:56] Speaker 03:
Congress was equally clear with Section 3632G3, where it said,

[00:13:04] Speaker 03:
supervised release can be reduced by up to, the term of custody can be reduced by up to a year to move someone into supervised release.

[00:13:12] Speaker 03:
Here, the first sentence of 3632D4C has to be read in the context of the statute.

[00:13:19] Speaker 03:
To read that to reduce any term of supervised release by any amount of unused credits would be to hide an elephant in a mouse hole.

[00:13:29] Speaker 03:
And it's really not what Congress intended.

[00:13:31] Speaker 00:
So, Your Honor, I take your point about the word towards being used to... Well, I think your argument has some force if we look at the application of earned good time credit in the custody setting traditionally.

[00:13:47] Speaker 00:
But the first step back seems to change all that, right?

[00:13:51] Speaker 00:
And so if it's meant to change all that, then we're looking at a different landscape and maybe it may not feel as intuitively correct to apply earned credit towards supervised release.

[00:14:05] Speaker 00:
I'm looking at the plain text of the statute, shall be applied toward time in pre-release custody or supervised release.

[00:14:13] Speaker 00:
That doesn't seem to be.

[00:14:16] Speaker 00:
textually ambiguous in any way, and maybe Congress did mean to change the whole landscape of what we would traditionally think of as to how to apply earned credits while in custody.

[00:14:27] Speaker 00:
Because otherwise, under your interpretation, any excess credit just basically goes away and there's no benefit given to defendants who have excess credits, right?

[00:14:36] Speaker 03:
So maybe I'll address the second part first, and then I'll go to the text.

[00:14:40] Speaker 03:
So as to the unused credits, we do think they have effect.

[00:14:44] Speaker 03:
As I mentioned in the ordinary course, when the time credits equal the amount of days left in custody, they either go towards pre-release custody, moving that earlier and expanding the amount of time, which is consistent with the First Step Act, or moving someone out of custody altogether and into supervised release, which is also in line with the First Step Act.

[00:15:03] Speaker 00:
In the rare, in their case, Mr. Gonzalez, what happened to his excess credit?

[00:15:11] Speaker 03:
Sure, so in Mr. Gonzalez's case, he was already on home confinement for even far longer than the First Step Act would have allowed because of COVID relief.

[00:15:20] Speaker 03:
In this case, though, the Bureau of Prisons did, admittedly, err in not calculating those credits sooner, causing him to not move from home confinement onto supervised release in a timely way.

[00:15:31] Speaker 03:
So it was about five months late where he moved from home confinement to supervised release.

[00:15:36] Speaker 03:
And in this case, the defendant has availed himself now twice of the remedies that are available to him.

[00:15:42] Speaker 03:
In his underlying 2241 petition, he said,

[00:15:46] Speaker 03:
To Judge Fisher, even if you disagree with my textual reading, please use your equitable powers to reduce my term of supervised release.

[00:15:53] Speaker 03:
Judge Fisher considered that and said, I'm not going to use my equitable powers that way.

[00:15:58] Speaker 03:
But she did consider it.

[00:15:59] Speaker 03:
She ruled on it.

[00:16:00] Speaker 03:
And as part of the decision below,

[00:16:02] Speaker 03:
In February of this year, the defendant applied to Judge Snyder, who heard the underlying case, for a 3583 motion to reduce the term of supervised release, citing the familiar 3553A factors and this over-served time.

[00:16:17] Speaker 03:
Judge Snyder just on Monday issued an opinion saying, I'm considering it.

[00:16:23] Speaker 03:
I'm crediting what you're saying is true about these over-served credits.

[00:16:27] Speaker 03:
But ultimately, under my discretion, I'm going to say it's not the right time to do that.

[00:16:31] Speaker 03:
So Judge Snyder denied the petition, denied the motion without prejudice to applying later.

[00:16:38] Speaker 03:
Judge Snyder said he had only served one year.

[00:16:39] Speaker 03:
In other cases, inmates had served at least two or three years of their supervised release.

[00:16:44] Speaker 03:
So she denied it without prejudice to making another application.

[00:16:46] Speaker 03:
So these credits do go into effect.

[00:16:49] Speaker 03:
They reduce the time of supervised release.

[00:16:51] Speaker 03:
And if there is overuse time, the defendant and an inmate can do exactly what this defendant did and apply to the district court.

[00:16:58] Speaker 03:
I want to go back to, Your Honor, to ask an earlier textual question.

[00:17:02] Speaker 00:
But get it as a matter of an exercise of equitable discretion rather than as a matter of rights.

[00:17:08] Speaker 03:
That's right, Your Honor.

[00:17:09] Speaker 03:
We think it's appropriately used that way, as other credits are under the statute.

[00:17:14] Speaker 03:
So if an inmate has excess good time credits, for example,

[00:17:18] Speaker 03:
Cases have held that those also aren't automatically used the the familiar good time credits don't automatically reduce a term of supervised release rather the court has the discretion to do that on emotion to reduce supervised release.

[00:17:31] Speaker 02:
Council if you could address the other part of Judge Winn's question which has I think

[00:17:39] Speaker 02:
some force, and that is if in fact Congress did change the landscape with regards to the First Step Act and included that language indicating that folks shall be given credit for supervised release, that's Congress's intent, right?

[00:17:59] Speaker 02:
That's showing their intent of what they want us to do.

[00:18:03] Speaker 02:
We can't sort of second guess what they have chosen

[00:18:07] Speaker 02:
within their authority to do.

[00:18:09] Speaker 02:
Under your interpretation, we might have to do that.

[00:18:18] Speaker 03:
I think, again, the cases I cited earlier are the right ones on ambiguity here.

[00:18:24] Speaker 03:
So we cited definitions from the statute.

[00:18:27] Speaker 03:
We cited definitions from the dictionary.

[00:18:30] Speaker 03:
The defendant cited definitions from the dictionary about towards and how to give credit to time in.

[00:18:35] Speaker 03:
I think we have the better of that argument.

[00:18:37] Speaker 03:
You'll see that in our briefs.

[00:18:38] Speaker 03:
But even if we don't, I think then we're still back in the land of two grammatically plausible interpretations of that first sentence.

[00:18:48] Speaker 03:
Defendant, in this case, the petitioner, discounts the government for trying to cherry pick words.

[00:18:53] Speaker 03:
But the petitioner is relying really just on that first sentence.

[00:18:57] Speaker 03:
I think we have the better of the argument.

[00:19:00] Speaker 03:
But at a minimum, there are two grammatically plausible readings of that first sentence.

[00:19:05] Speaker 03:
The second sentence makes clear what it really means.

[00:19:09] Speaker 03:
And then I also want to note 3624G10.

[00:19:12] Speaker 03:
Under 3624G10, Congress explicitly

[00:19:17] Speaker 03:
expanded the amount of time an inmate can serve in pre-release custody.

[00:19:22] Speaker 03:
The petitioner's argument here, and the one rejected by the vast majority of courts, would treat pre-release custody and supervised release differently.

[00:19:31] Speaker 03:
The government's reading them in harmony.

[00:19:33] Speaker 03:
The first step act expanded the term of pre-release custody.

[00:19:37] Speaker 03:
It was an important part of the first step act to say that inmates can move into this less restrictive custody earlier.

[00:19:44] Speaker 03:
The defendant would read pre-release custody to get shortened, not expanded, which is what Congress was explicit in doing.

[00:19:52] Speaker 03:
So to go back to what Your Honor said, I think at a bare minimum, there are two grammatically plausible readings of a few words in the first sentence.

[00:20:00] Speaker 03:
But when they're read in context, which is all part of that first threshold decision, what do the words mean?

[00:20:06] Speaker 03:
They have to be read in context.

[00:20:09] Speaker 03:
We think that it's really unambiguous when you read it in context.

[00:20:12] Speaker 00:
All right, you're over time, counsel, but we thank you for your argument.

[00:20:15] Speaker 03:
Thank you.

[00:20:24] Speaker 01:
So unless there are questions specifically about context, and we think that our reading of the statute does give full effect to every provision in 3624 and 3632, I do want to make sure I touch upon the points made about the 3583 motion as well.

[00:20:41] Speaker 01:
So over the last three years, since April of 2022, Mr. Gonzalez has been attempting to pursue every possible avenue for applying his earned time credits.

[00:20:51] Speaker 01:
After the government recognized in its brief to this court that equitable considerations of great weight were implicated by Mr. Gonzalez's conceded over service, he exercised his right as soon as he became eligible at the one-year mark for 3583 motion to seek early termination in the interest of justice.

[00:21:07] Speaker 01:
citing his over-service in part and in the interest of saving this court's resources in this appeal.

[00:21:14] Speaker 01:
And despite the government's concessions to the court, it oddly urged the district court not to consider Mr. Gonzalez's over-service in light of the pendency of this appeal.

[00:21:24] Speaker 01:
And the district court ultimately found early termination premature and asked for us to come back after this court rendered its decision.

[00:21:32] Speaker 01:
So everyone here, I think, appears to agree that the 3583 equitable remedy

[00:21:37] Speaker 01:
is a distinct one from the legal claim, as Judge Wen pointed out, being asserted here under the FSA as a consequence of the denied 2241 petition.

[00:21:47] Speaker 01:
And so I think this issue remains as ripe as ever for this court's review.

[00:21:52] Speaker 00:
Remind me, what's the time period that he's got left?

[00:21:55] Speaker 01:
So he has just under four years of supervised release left.

[00:22:02] Speaker 01:
So unless this court has any further questions, we would ask the court to reverse and order that Mr. Gonzalez's unused time credits be applied to his term of supervised release.

[00:22:14] Speaker 00:
Thank you, counsel, to both sides for your very helpful arguments this morning.

[00:22:18] Speaker 00:
The matter is submitted.