Barber v. Thomas , 560 U.S. 474 ( 2010 )


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  • (Slip Opinion)              OCTOBER TERM, 2009                                       1
    
                                           Syllabus
    
             NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
           being done in connection with this case, at the time the opinion is issued.
           The syllabus constitutes no part of the opinion of the Court but has been
           prepared by the Reporter of Decisions for the convenience of the reader.
           See United States v. Detroit Timber & Lumber Co., 
    200 U.S. 321
    , 337.
    
    
    SUPREME COURT OF THE UNITED STATES
    
                                           Syllabus
    
                     BARBER ET AL. v. THOMAS, WARDEN
    
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                      THE NINTH CIRCUIT
    
          No. 09–5201. Argued March 30, 2010—Decided June 7, 2010
    The federal sentencing statute at issue provides that a “prisoner . . .
      serving a term of imprisonment of more than 1 year . . . may receive
      credit toward the service of [that] sentence . . . of up to 54 days at the
      end of each year” subject to the Bureau of Prison’s (BOP) “determina
      tion . . . that, during that year, the prisoner” has behaved in an ex
      emplary fashion. 
    18 U.S. C
    . §3624(b)(1). Credit “for the last year or
      portion of a year of the term of imprisonment [is] prorated . . . .” Ibid.
      The BOP applies this statute using a methodology that awards 54
      days of credit at the end of each year the prisoner serves and sets
      those days to the side. When the difference between the time re
      maining in the sentence and the amount of accumulated credit is less
      than one year, the BOP awards a prorated amount of credit for that
      final year proportional to the awards in other years.
         Petitioners claim that the BOP’s calculation method is unlawful
      because §3624(b)(1) requires a calculation based on the length of the
      term of imprisonment imposed by the sentencing judge, not the
      length of time that the prisoner actually serves. The District Court
      rejected this challenge in each of petitioner’s cases, and the Ninth
      Circuit affirmed.
    Held: Because the BOP’s method for calculating good time credit re
     flects the most natural reading of the statute, it is lawful. Pp. 5–17.
        (a) The statute’s language and purpose, taken together, support the
     BOP’s method. That method tracks §3624(b)’s language by providing
     a prisoner a maximum credit of 54 days for each full year of impris
     onment and a proportionally adjusted amount of credit for any addi
     tional time served that is less than a full year. As §3624(b) directs,
     the BOP awards the credit “at the end of each year” of imprisonment.
     Petitioners’ approach cannot be reconciled with the statute. Because
    2                          BARBER v. THOMAS
    
                                      Syllabus
    
        it awards credit for the sentence imposed, regardless of how much
        time is actually served, a prisoner could receive credit for a year that
        he does not spend in prison. Moreover the calculation of credit for
        such a year would not be made “at the end of” that year. Nor could
        the BOP determine whether the prisoner had exemplary behavior
        “during that year.” This language did not find its way into the stat
        ute by accident. The differences between the prior provision (re
        pealed in 1984)—which granted the prisoner a deduction at the out
        set of his sentence, subject to forfeiture for breaking prison rules—
        and the present statute—under which “credit” is “earned” “at the end
        of” the year based on an evaluation of behavior “during that year”—
        show an intent to move from a prospective entitlement to a retrospec
        tive award. The BOP’s method also furthers the basic purpose of the
        statute. Section 3624 was part of the comprehensive Sentencing Re
        form Act of 1984, which sought to achieve both increased sentencing
        uniformity and greater honesty by “mak[ing] all sentences basically
        determinate.” Mistretta v. United States, 
    488 U.S. 361
    , 367. There
        after, the sentence the judge imposed would be the one the offender
        actually served, with a sole statutory exception for good time credits.
        Ibid. Section 3624(b) states the reason for the exception: to provide
        an incentive for prisoners to “compl[y] with institutional disciplinary
        regulations.” The exception is limited and tailored to its purpose—
        credit is earned at the end of the year after compliance with institu
        tional rules is demonstrated and thereby rewards and reinforces a
        readily identifiable period of good behavior. The BOP’s approach fur
        thers §3624’s objectives by tying the award directly to good behavior
        during the preceding year. In contrast, petitioners’ approach would
        allow a prisoner to earn credit for both the portion of his sentence
        that he served and the portion offset with earned credit, which would
        loosen the statute’s connection between good behavior and the good
        time award. Pp. 5–8.
           (b) Arguments to the contrary are unconvincing. Context indicates
        that the phrase “term of imprisonment” as used in the portion of
        §3624(b) at issue here refers to prison time actually served not, as pe
        titioners contend, to the sentence imposed by the judge. Petitioners’
        reliance on legislative history is misplaced. A U. S. Sentencing Com
        mission Supplementary Report is not helpful to them either, because
        there is no indication that the Commission, in that report or in the
        Guidelines themselves, considered or referred to the particular ques
        tion whether to base good time credit on time served or the sentence
        imposed. Nor, in light of the statute’s text, structure, history, and
        purpose, is this a case in which there is a “grievous ambiguity or un
        certainty in the statute,” Muscarello v. United States, 
    524 U.S. 125
    ,
        139, permitting application of the rule of lenity. Because the BOP’s
                         Cite as: 560 U. S. ____ (2010)                   3
    
                                   Syllabus
    
      calculation system applies the statute as its language is most natu
      rally read, and in accordance with the statute’s basic purpose, this
      Court need not determine the extent to which Congress has granted
      the BOP authority to interpret the statute more broadly, or differ
      ently than it has done here. Cf. Chevron U. S. A. Inc. v. Natural Re
      sources Defense Council, Inc., 
    467 U.S. 837
    , 844–845. And because
      the BOP’s approach reflects the statute’s most natural reading and is
      the most consistent with its purpose, it is also preferable to the dis
      sent’s alternative interpretation. Pp. 8–17.
    Affirmed.
    
      BREYER, J., delivered the opinion of the Court, in which ROBERTS,
    C. J., and SCALIA, THOMAS, ALITO, and SOTOMAYOR, JJ., joined. KEN-
    NEDY, J., filed a dissenting opinion in which STEVENS and GINSBURG,
    JJ., joined.
                           Cite as: 560 U. S. ____ (2010)                              1
    
                                Opinion of the Court
    
        NOTICE: This opinion is subject to formal revision before publication in the
        preliminary print of the United States Reports. Readers are requested to
        notify the Reporter of Decisions, Supreme Court of the United States, Wash
        ington, D. C. 20543, of any typographical or other formal errors, in order
        that corrections may be made before the preliminary print goes to press.
    
    
    SUPREME COURT OF THE UNITED STATES
                                      _________________
    
                                      No. 09–5201
                                      _________________
    
    
      MICHAEL GARY BARBER, ET AL., PETITIONERS v.
               J. E. THOMAS, WARDEN
     ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
    
                APPEALS FOR THE NINTH CIRCUIT
    
                                    [June 7, 2010]
    
    
       JUSTICE BREYER delivered the opinion of the Court.
       Federal sentencing law permits federal prison authori
    ties to award prisoners credit against prison time as a
    reward for good behavior. 
    18 U.S. C
    . §3624(b). Petition
    ers, two federal prisoners, challenge the method that the
    Federal Bureau of Prisons uses for calculating this “good
    time credit.” We conclude that the Bureau’s method re
    flects the most natural reading of the statute, and we
    reject petitioners’ legal challenge.
                                 I
    
                                A
    
      A federal sentencing statute provides: 
    
        “[A] prisoner who is serving a term of imprisonment of
        more than 1 year . . . may receive credit toward the
        service of the prisoner’s sentence, beyond the time
        served, of up to 54 days at the end of each year of the
        prisoner’s term of imprisonment, beginning at the end
        of the first year of the term . . . . [C]redit for the last
        year or portion of a year of the term of imprisonment
        shall be prorated and credited within the last six
        weeks of the sentence.” §3624(b)(1).
    2                   BARBER v. THOMAS
    
                         Opinion of the Court
    
    The Bureau of Prisons (BOP) applies this statute using a
    methodology that petitioners in this case challenge as
    unlawful. In order to explain the BOP method, we shall
    use a simplified example that captures its essential ele
    ments. The unsimplified calculations described by the
    BOP in its policy statement, see App. 96–100, will reach
    approximately the same results as, and are essentially the
    mathematical equivalent of, the simplified system we
    describe (there may be other ways to describe the calcula
    tion as well). To the extent that there are any differences
    between the methodology employed by the BOP and that
    reflected in our example, they are of no consequence to the
    resolution of petitioners’ challenge and are therefore not
    before us. Similarly, although petitioners committed their
    crimes before the current version of §3624 was enacted
    and are therefore subject to a previous version that dif
    fered slightly in certain details, see 
    18 U.S. C
    . §3624
    (1988 ed.), the differences between the two versions are
    immaterial to the questions presented by this case. The
    parties refer to the current version as the relevant provi
    sion of law, see Brief for Petitioners 2–3; Brief for Respon
    dent 8, n. 2, and we shall do the same.
       In our example we shall imagine a prisoner who has
    received a sentence of 10 years’ imprisonment. We shall
    assume that his behavior throughout his confinement is
    exemplary and that prison authorities will consequently
    consider him to merit the maximum good time credit that
    the statute will allow. And we shall ignore leap years.
       Thus, at the end of the first year (Year 1) that prisoner
    would earn the statute’s maximum credit of 54 days. The
    relevant official (whom we shall call the “good time calcu
    lator”) would note that fact and, in effect, preliminarily
    put the 54 days to the side. At the end of Year 2 the pris
    oner would earn an additional 54 days of good time credit.
    The good time calculator would add this 54 days to the
    first 54 days, note the provisional total of 108 days, and
                      Cite as: 560 U. S. ____ (2010)            3
    
                          Opinion of the Court
    
    again put the 108 days’ credit to the side. By the end of
    Year 8, the prisoner would have earned a total of 432 days
    of good time credit (8 years times 54 days). At that time,
    the good time calculator would note that the difference
    between the time remaining in the sentence (2 years, or
    730 days) and the amount of accumulated good time credit
    (432 days) is less than 1 year (730 minus 432 equals 298
    days, which is less than 365). The 432 days of good time
    credit that the prisoner has earned by the end of Year 8
    are sufficient to wipe out all of the last year of the 10-year
    prison term and to shorten the prisoner’s 9th year of im
    prisonment by 67 days.
       Year 9 of the sentence will consequently become the
    prisoner’s last year of imprisonment. Further, because the
    prisoner has already earned 67 days of credit against that
    year (432 days already earned minus 365 days applied to
    Year 10 leaves 67 days to apply to Year 9), the prisoner
    will have no more than 298 days left to serve in Year 9.
    Now the good time calculator will have to work out just
    how much good time the prisoner can earn, and credit
    against, these remaining 298 days.
       As we said, the statute provides that “good time” for this
    “last year or portion” thereof shall be “prorated.” Thus,
    the good time calculator must divide the 298 days into two
    parts: (1) days that the prisoner will have to serve in
    prison, and (2) credit for good behavior the prisoner will
    earn during the days served in Year 9. In other words, the
    number of days to be served in Year 9 plus the number of
    good time credit days earned will be equal to the number
    of days left in the sentence, namely, 298. And to keep the
    award of credit in the last year proportional to awards in
    other years, the ratio of these two parts of Year 9 (i.e., the
    number of good time days divided by the number of days
    served) must be 54/365, the same ratio that the BOP
    applies to full years served. We can use some elementary
    algebra, described in the Appendix, infra, to work out the
    4                   BARBER v. THOMAS
    
                         Opinion of the Court
    
    rest. The result is that if the prisoner serves 260 days, he
    can earn an additional 38 days of credit for good behavior.
    That is to say, of the 298 days remaining in his sentence,
    the prisoner will have to serve 260 days in confinement,
    after which point, his sentence will be fully accounted for
    (given the additional 38 days’ credit earned), and he will
    be released. In sum, a prisoner subject to a 10-year
    (3,650-day) sentence who earns the maximum number of
    days the statute permits will serve 3,180 days in confine
    ment and receive 470 days of “good time” credit, about
    15% of the prison time actually served.
                                   B
       In this case petitioners claim that the BOP’s calculation
    method is unlawful. They say that §3624(b)(1) (2006 ed.)
    requires a straightforward calculation based upon the
    length of the term of imprisonment that the sentencing
    judge imposes, not the length of time that the prisoner
    actually serves. Thus, if a sentencing judge imposes a
    prison term of 10 years (as in our example), then, in peti
    tioners’ view, the statute permits a maximum good time
    award of 540 days (10 years times 54 days), not the 470
    days that the method described above would allow. And if
    the judge imposes a prison term of 10 years and 6 months,
    then the statute permits 567 days (540 days for the 10
    years plus 27 days for the extra 6 months), not the 494
    days that the method above would allow. According to
    petitioners, the BOP’s method causes model prisoners to
    lose seven days of good time credit per year of imprison
    ment, and because their sentences are fairly long (one,
    Michael Barber, was sentenced to 26 years and 8 months;
    the other, Tahir Jihad-Black, was sentenced to 21 years
    and 10 months), the difference in their cases amounts to
    several months of additional prison time.
       The District Court in each of these cases rejected the
    prisoner’s challenge. Civ. No. 08–226 MO (D Ore., Oct. 27,
                     Cite as: 560 U. S. ____ (2010)            5
    
                         Opinion of the Court
    
    2008), App. 13; Jihad-Black v. Thomas, Civ. No. 08–227
    MO (D Ore., Oct. 27, 2008), App. 25. And in each instance
    the Court of Appeals affirmed the District Court. Tablada
    v. Thomas, No. 07–35538 (CA9, Apr. 10, 2009), App. 11;
    see also Tablada v. Thomas, 
    533 F.3d 800
     (CA9 2008).
    Because the BOP’s administration of good time credits
    affects the interests of a large number of federal prisoners,
    we granted the consolidated petition for certiorari to con
    sider petitioners’ challenge.
                                  II
       Having now considered petitioners’ arguments, we
    conclude that that we must reject their legal challenge.
    The statute’s language and its purpose, taken together,
    convince us that the BOP’s calculation method is lawful.
    For one thing, that method tracks the language of
    §3624(b). That provision says that a prisoner (serving a
    sentence of imprisonment of more than a year and less
    than life) “may receive credit . . . of up to 54 days at the
    end of each year” subject to the “determination by the
    Bureau of Prisons that, during that year, the prisoner” has
    behaved in an exemplary fashion. Ibid. (emphasis added).
    And it says that credit for the “last year or portion of a
    year . . . shall be prorated and credited within the last six
    weeks of the sentence.” Ibid. As the example in Part I
    makes clear, the BOP’s interpretation provides a prisoner
    entitled to a maximum annual credit with 54 days of good
    time credit for each full year of imprisonment that he
    serves and a proportionally adjusted amount of credit for
    any additional time served that is less than a full year.
    And, as §3624(b) directs, the BOP awards the credit at the
    end of each year of imprisonment (except, of course, for
    Year 9, which is subject to the statute’s special instruction
    requiring proration and crediting during the last six weeks
    of the sentence).
       We are unable similarly to reconcile petitioners’ ap
    6                    BARBER v. THOMAS
    
                          Opinion of the Court
    
    proach with the statute. Their system awards credit for
    the sentence imposed, regardless of how much time is
    actually served. Thus, a prisoner under petitioners’ sys
    tem could receive 54 days of credit for Year 10 despite the
    fact that he would be released after less than 81⁄2 years in
    prison. The good time calculation for Year 10 would not be
    made “at the end of” Year 10 (nor within the last six weeks
    of a sentence ending during that year). Neither could the
    BOP determine whether the prisoner had behaved in
    exemplary fashion “during that year.” 
    18 U.S. C
    . §3624(b)
    (emphasis added); see also White v. Scibana, 
    390 F.3d 997
    , 1001 (CA7 2004) (“The Bureau cannot evaluate a
    prisoner’s behavior and award credit for good conduct if
    the prisoner is not still in prison”); cf. McGinnis v. Royster,
    
    410 U.S. 263
    , 273 (1973) (“Where there is no evaluation
    by state officials and little or no rehabilitative participa
    tion for anyone to evaluate, there is a rational justification
    for declining to give good-time credit”).
       We cannot say that this language (“at the end of,” “dur
    ing that year”) found its way into the statute by accident.
    Under the previous good time provision, a prisoner was
    “entitled to a deduction from the term of his sentence
    beginning with the day on which the sentence commences
    to run.” 
    18 U.S. C
    . §4161 (1982 ed.) (repealed 1984). This
    deduction, granted at the outset of a prisoner’s sentence,
    was then made subject to forfeiture if the prisoner “com
    mit[ted] any offense or violate[d] the rules of the institu
    tion.” §4165 (repealed 1984). The present statute, §3624
    (2006 ed.), in contrast, creates a system under which
    “credit” is “earned” “at the end of” the year based on an
    evaluation of behavior “during that year.” We agree with
    the Government that “[t]he textual differences between
    the two statutes reveal a purpose to move from a system of
    prospective entitlement to a system of retrospective
    award.” Brief for Respondent 33; see also White, supra, at
    1002, n. 3.
                     Cite as: 560 U. S. ____ (2010)           7
    
                         Opinion of the Court
    
       For another thing, the BOP’s method better furthers the
    statute’s basic purpose. The “good time” provision in
    §3624 is part of the Sentencing Reform Act of 1984, 98
    Stat. 1987, 
    18 U.S. C
    . §3551 et seq., 
    28 U.S. C
    . §§991–
    998, a comprehensive law that reformed federal sentenc
    ing practice and directed the newly created United States
    Sentencing Commission “to devise guidelines to be used
    for sentencing” in district courts, Mistretta v. United
    States, 
    488 U.S. 361
    , 367 (1989). Under the previous
    regime, the United States Parole Commission, “as a gen
    eral rule, [could] conditionally release a prisoner any time
    after he serve[d] one-third of the judicially fixed term.”
    United States v. Grayson, 
    438 U.S. 41
    , 47 (1978). If, for
    example, a judge imposed a prison term of 15 years, the
    Parole Commission might have released the prisoner after
    only 5 years. And it routinely did so. See United States
    Sentencing Commission, Guidelines Manual §1A3, p. s., p.
    1.2 (Oct. 1987) (USSG) (“[D]efendants often serv[ed] only
    about one-third of the sentence handed down by the
    court”). The result was “confusion and implicit deception.”
    Ibid. With the Sentencing Reform Act, Congress sought to
    achieve both increased sentencing uniformity and greater
    honesty by “mak[ing] all sentences basically determinate,”
    Mistretta, supra, at 367. See USSG §1A3, p. s., at 1.2
    (statutory objectives included “honesty in sentencing,”
    “uniformity,” and “proportionality” (emphasis deleted)).
       Thereafter, the sentence the judge imposed would be the
    sentence the offender actually served, with a sole statutory
    exception for good time credits. Mistretta, supra, at 367 (a
    “prisoner is to be released at the completion of his sen
    tence reduced only by any credit earned by good behavior
    while in custody” (citing §3624(b)). The reason for this
    exception is provided in §3624(b) itself: to provide an
    incentive for prisoners to “compl[y] with institutional
    disciplinary regulations.” The good time exception is
    limited (to 54 days per year) and tailored to its purpose—
    8                    BARBER v. THOMAS
    
                          Opinion of the Court
    
    credit is earned at the end of the year after compliance
    with institutional rules is demonstrated and thereby
    rewards and reinforces a readily identifiable period of good
    behavior.
       The BOP’s approach furthers the objective of §3624. It
    ties the award of good time credits directly to good behav
    ior during the preceding year of imprisonment. By con
    trast, petitioners’ approach, insofar is it would award up to
    54 days per year of time sentenced as opposed to time
    served, allows a prisoner to earn credit for both the portion
    of his sentence that he serves and the portion of his sen
    tence that he offsets with earned good time credit. In
    other words, petitioners argue that the BOP should award
    good time credit not only for the days a prisoner spends in
    prison and behaves appropriately, but also for days that
    he will not spend in prison at all, such as Year 10 in our
    example. By doing so, it loosens the statute’s connection
    between good behavior and the award of good time and
    transforms the nature of the exception to the basic sen
    tence-imposed-is-sentence-served rule. And to that extent,
    it is inconsistent with the statute’s basic purpose.
                                  III 
    
                                   A
    
      We are not convinced by petitioners’ several arguments
    against the BOP’s methodology. First, petitioners point to
    the statement in §3624(b) that a prisoner “may receive
    credit . . . at the end of each year of the prisoner’s term of
    imprisonment.” (Emphasis added.) The words “term of
    imprisonment,” they say, must refer to the years of the
    term that the sentencing judge imposed (10 years in our
    example), not the (less-than-10) years of the term that the
    prisoner actually served once good time credits were taken
    into account. After all, the very first phrase of that provi
    sion makes eligible for good time credits “a prisoner who is
    serving a term of imprisonment of more than 1 year other
                       Cite as: 560 U. S. ____ (2010)              9
    
                           Opinion of the Court
    
    than a term of imprisonment for the duration of the pris
    oner’s life.” Ibid. (emphasis added; footnote omitted). The
    words “term of imprisonment” in this phrase almost cer
    tainly refer to the sentence imposed, not to the time actu
    ally served (otherwise prisoners sentenced to a year and a
    day would become ineligible for credit as soon as they
    earned it). And, as petitioners emphasize, we have recog
    nized a “presumption that a given term is used to mean
    the same thing throughout a statute,” Brown v. Gardner,
    
    513 U.S. 115
    , 118 (1994).
      The problem for petitioners, however, is that this pre
    sumption is not absolute. It yields readily to indications
    that the same phrase used in different parts of the same
    statute means different things, particularly where the
    phrase is one that speakers can easily use in different
    ways without risk of confusion. Atlantic Cleaners & Dyers,
    Inc. v. United States, 
    286 U.S. 427
    , 433 (1932); General
    Dynamics Land Systems, Inc. v. Cline, 
    540 U.S. 581
    , 595–
    596 (2004). See, e.g., id., at 596–597 (“age” has different
    meanings in the Age Discrimination in Employment Act of
    1967); United States v. Cleveland Indians Baseball Co.,
    
    532 U.S. 200
    , 213 (2001) (same for “ ‘wages paid’ ” in the
    Internal Revenue Code); Robinson v. Shell Oil Co., 
    519 U.S. 337
    , 343–344 (1997) (same for “employee” in Title
    VII of the Civil Rights Act of 1964).
      The phrase “term of imprisonment” is just such a
    phrase. It can refer to the sentence that the judge im
    poses, see, e.g., §3624(a) (“A prisoner shall be released” at
    the end of “the prisoner’s term of imprisonment, less any
    time credited” for good behavior), but it also can refer to
    the time that the prisoner actually serves. Thus, §3624(d)
    of the statute before us requires BOP to “furnish [a] pris
    oner with . . . suitable clothing[,] . . . money, . . . and . . .
    transportation” “[u]pon the release of [the] prisoner on the
    expiration of the prisoner’s term of imprisonment.” (Em
    phasis added.) The statute here means to assure that the
    10                   BARBER v. THOMAS
    
                          Opinion of the Court
    
    prisoner is provided with these necessities at the time of
    his actual release from prison (sometime during Year 9 in
    our example), not at the end of the term that the judge
    imposed (which would be over a year later). Since the
    statute uses the same phrase “term of imprisonment” in
    two different ways, the presumption cannot help petition
    ers here. And, for the reasons we have given, see Part II,
    supra, context here indicates that the particular instance
    of the phrase “term of imprisonment” at issue refers to
    prison time actually served rather than the sentence
    imposed by the judge.
       Second, petitioners seek to draw support from the stat
    ute’s legislative history. But those who consider legisla
    tive history significant cannot find that history helpful to
    petitioners here. Petitioners point, for example, to a
    statement in the Senate Report accompanying the Sen
    tencing Reform Act, which says that the “method of calcu
    lation” of good time “will be considerably less complicated
    than under current law in many respects,” and that “credit
    toward early release is earned at a steady and easily
    determined rate that will have an obvious impact on the
    prisoner’s release date.” S. Rep. No. 98–225, p. 146–147
    (1983); see Brief for Petitioners 31–32. But these state
    ments are consistent with the BOP’s interpretation of the
    statute. Its method, as we understand it, is not particu
    larly difficult to apply and it is certainly less complex than
    prior law, which provided for the accumulation of two
    different kinds of good time credit (general and industrial),
    calculated in different manners (prospectively and retro
    spectively), and awarded at different rates, depending on
    the length of sentence imposed on the prisoner (5 to 10
    days per month for general) or the year of employment (3
    or 5 days per month for industrial). See 
    18 U.S. C
    .
    §§4161, 4162 (1982 ed.).
       Petitioners also point to various statements contained in
    the Act’s Conference Report and made by individual legis
                      Cite as: 560 U. S. ____ (2010)           11
    
                          Opinion of the Court
    
    lators that describe good time credit as providing sentence
    reductions of 15%. See Brief for Petitioners 34–36 (citing,
    e.g., H. R. Conf. Rep. No. 98–1159, p. 415 (1984); 131
    Cong. Rec. 488 (1985) (remarks of Rep. Hamilton)). But
    there is nothing in the context of these statements to
    suggest that they amounted to anything other than rough
    approximations or that they were made with the present
    controversy in mind. See, e.g., H. R. Conf. Rep. No. 98–
    1159, at 415 (noting simply that an increase in the amount
    of maximum annual credit from 36 days to 54 days “in
    creases ‘good time’ that accrues from 10 percent to 15
    percent”); 131 Cong. Rec. 488 (1985) (statement of Rep.
    Hamilton) (“Under [pre-Sentencing Reform Act] law, about
    80% of all criminals are paroled after serving one third of
    their time. Now sentences will be reduced only 15% for
    good behavior”). And whatever interpretive force one
    attaches to legislative history, the Court normally gives
    little weight to statements, such as those of the individual
    legislators, made after the bill in question has become law.
    See, e.g., Heintz v. Jenkins, 
    514 U.S. 291
    , 298 (1995).
       Third, petitioners rely on a statement in the United
    States Sentencing Commission’s Supplementary Report on
    the Initial Sentencing Guidelines and Policy Statements
    issued in 1987 (hereinafter Supplementary Report). In
    that Report, the Commission summarized its analysis of
    recent pre-Guidelines sentencing practice, which it had
    used to help draft the Guidelines. The results of the
    analysis were presented in a table that permits compari
    son of the likely prison-time consequences of the new
    Guidelines with prison time actually served under pre-
    Guidelines practice (specifically, by identifying the Guide
    lines “offense level that is closest to the average time . . .
    served by first-time offenders” convicted of a particular
    crime, Supplementary Report 23). Because the Guidelines
    “refer to sentences prior to the awarding of good time” (i.e.,
    because a Guidelines sentence of, say, 30 months’ impris
    12                 BARBER v. THOMAS
    
                        Opinion of the Court
    
    onment does not necessarily mean that the offender will
    serve the entire 30 months in prison), the Commission
    adjusted the average time served “by dividing by 0.85 good
    time when the term exceeded 12 months.” Ibid. This
    adjustment, the Commission explained, “made sentences
    in the [t]able comparable with those in the guidelines.”
    Ibid.
       Pointing to this adjustment and a reference in later
    editions of the Guidelines to a potential credit of “ap
    proximately fifteen percent for good behavior,” see, e.g.,
    USSG §1A3, p. s., at 3 (Nov. 2009), petitioners maintain
    that the Commission set its Guideline ranges with the
    expectation that well-behaved prisoners would receive
    good time credit of up to 15% of the sentence imposed, not
    15% of the time actually served. They add that, in setting
    the Guidelines ranges in this way, the Commission exer
    cised congressionally delegated power to interpret the
    Sentencing Reform Act, see Mistretta, 488 U. S., at 371–
    379 (approving Congress’ delegation of the power to prom
    ulgate sentencing guidelines), and that as long as that
    interpretation is reasonable, courts must defer to it. See
    Chevron U. S. A. Inc. v. Natural Resources Defense Coun
    cil, Inc., 
    467 U.S. 837
    , 843–844 (1984).
       Again, however, we can find no indication that the
    Commission, in writing its Supplementary Report or in
    the Guidelines themselves, considered or referred to the
    particular question here before us, that is whether good
    time credit is to be based on time served or the sentence
    imposed. The Guidelines Manual itself, a more authorita
    tive account of the Commission’s interpretive views than
    the Supplementary Report, says nothing directly on that
    subject. Moreover, with respect to comparisons between
    Guidelines sentences and pre-Guidelines practice, the
    original 1987 Manual cautioned that the Guidelines did
    not “simply cop[y] estimates of existing practice as re
    vealed by the data,” but rather “departed from the data at
                     Cite as: 560 U. S. ____ (2010)           13
    
                         Opinion of the Court
    
    different points for various important reasons.” USSG
    §1A3, p. s., at 1.4; see also id., §1A4(g), p. s., at 1.11
    (while “Guideline sentences in many instances will ap
    proximate existing [i.e., pre-Guidelines] practice,” the
    Commission did “not conside[r] itself bound by existing
    sentencing practice” (emphasis added)). Because the
    Commission has expressed no view on the question before
    us, we need not decide whether it would be entitled to
    deference had it done so. If it turns out that the calcula
    tion of good time credit based on prison time served rather
    than the sentence imposed produces results that are more
    severe than the Commission finds appropriate, the Com
    mission remains free to adjust sentencing levels accord
    ingly. See id., §1A2, at 1.2 (acknowledging that “the
    guideline-writing process is evolutionary” and that the
    Commission functions “as a permanent agency to monitor
    sentencing practices in the federal courts throughout the
    nation”).
       Fourth, petitioners ask us to invoke the rule of lenity
    and construe §3624 (2006 ed.) in their favor, that is, in a
    way that will maximize the amount of available good time
    credit. We may assume for present purposes that §3624(b)
    can be construed as imposing a criminal penalty. See
    Bifulco v. United States, 
    447 U.S. 381
    , 387 (1980) (rule of
    lenity applies to “interpretations of . . . the penalties”
    imposed by “criminal prohibitions”); but see Sash v. Zenk,
    
    428 F.3d 132
    , 134 (CA2 2005) (Sotomayor, J.) (holding
    that §3624(b) is not a criminal statute for the purposes of
    the rule of lenity). Even so, the rule of lenity only applies
    if, after considering text, structure, history, and purpose,
    there remains a “grievous ambiguity or uncertainty in the
    statute,” Muscarello v. United States, 
    524 U.S. 125
    , 139
    (1998) (internal quotation marks omitted), such that the
    Court must simply “ ‘guess as to what Congress intended.’ ”
    Bifulco, supra, at 387 (quoting Ladner v. United States,
    
    358 U.S. 169
    , 178 (1958)). See United States v. Hayes,
    14                  BARBER v. THOMAS
    
                         Opinion of the Court
    
    
    555 U.S.
    ___, ___ (2009) (slip op., at 13); United States v.
    R. L. C., 
    503 U.S. 291
    , 305–306 (1992) (plurality opinion).
    Having so considered the statute, we do not believe that
    there remains a “grievous ambiguity or uncertainty” in the
    statutory provision before us. Nor need we now simply
    “guess” what the statute means.
      Finally, we note that petitioners urge us not to defer to
    the BOP’s implementation of §3624(b). In our view, the
    BOP’s calculation system applies that statute as its lan
    guage is most naturally read, and in accordance with what
    that language makes clear is its basic purpose. No one
    doubts that the BOP has the legal power to implement the
    statute in accordance with its language and purposes;
    hence we need not determine the extent to which Congress
    has granted the BOP authority to interpret the statute
    more broadly, or differently than it has done here. Cf.
    Chevron, supra, at 844–845.
                                  B
      Acknowledging that petitioners’ arguments cannot carry
    the day, the dissent has proposed a “third possibility,”
    post, at 2 (opinion of KENNEDY, J.), not raised by either
    party nor, to our knowledge, used elsewhere in the Crimi
    nal Code. The dissent reads the statutory phrase “term of
    imprisonment” to refer to “the administrative period along
    which progress toward eventual freedom is marked.” Post,
    at 3. It derives from this reading the following method of
    calculation as applied to our 10-year example. First, “[t]he
    sentence is divided into 10 365-day segments.” Ibid. At
    the end of the first segment, a prisoner may receive up to
    54 days of credit for good behavior. These credits immedi
    ately “go toward completion of the next year” so that the
    prisoner need only serve “another 311 days behind bars
    before the second year of his term of imprisonment is at an
    end.” Ibid. This process repeats itself until the “10th
    segment,” in which a prisoner receives an unspecified
                      Cite as: 560 U. S. ____ (2010)            15
    
                          Opinion of the Court
    
    “credit in a prorated amount.” Ibid. In the end, the pris
    oner will have served 10 “administrative segments,” ibid.,
    collectively comprising 3,117 days in prison and 533 days
    of credit.
       The dissent claims “[r]eading ‘term of imprisonment’
    this way is consistent with all parts of the statute.” Post,
    at 4. We see at least four problems. First, the opening
    sentence of §3624(a) instructs that “[a] prisoner shall be
    released” upon “the expiration of the prisoner’s term of
    imprisonment, less any time credited” for good behavior.
    But if a prisoner’s “term of imprisonment” is the “period
    that a prisoner must complete in order to earn his free
    dom,” post, at 4, and it is “accounted for through a combi
    nation of prison time and credits,” post, at 3, then a pris
    oner should be released exactly at the end of his term of
    imprisonment (without any further adjustment). Because
    the dissent’s approach would require us to read words out
    of the statute, or give prisoners double credit, its definition
    cannot be used here.
       Second, §3624(b)(1) tells us that a prisoner receives
    credit “at the end of each year” based on behavior “during
    that year.” Under the dissent’s approach, however, a
    prisoner may receive credit at the end of each “administra
    tive segmen[t]” presumably based on his behavior during
    that segment. And because an “administrative segmen[t]”
    is made up of some “combination of service and credits,”
    post, at 4, each one lasts less than a calendar year. We do
    not see how a system in which “a prisoner may complete a
    particular year of his term in less than 365 calendar days,”
    ibid., and receive full good time credit for doing so, can
    possibly represent the most natural reading of this statu
    tory language. Nor do we know, because the BOP has not
    had an opportunity to tell us, whether a system in which a
    “year” lasts anywhere from 311 to 365 calendar days (and
    in which the “years” of a single prisoner’s sentence may all
    be of different lengths), is easily administrable. (We doubt
    16                  BARBER v. THOMAS
    
                         Opinion of the Court
    
    that this system will be more comprehensible to prisoners
    than one, like the BOP’s, that provides credit for actual
    years.)
       Third, under the dissent’s approach, credit is earned at
    different rates during a single sentence. For the first
    “administrative segmen[t]” in its 10-year example, the
    prisoner serves 365 days and earns 54 days of credit. The
    ratio of credit earned to days served is .148. For the sec
    ond “administrative segmen[t],” the prisoner serves 311
    days and earns 54 days of credit. This time, the ratio of
    credit earned to days served is .174. (For the last “admin
    istrative segmen[t],” the dissent tells us the prisoner will
    receive “credit in a prorated amount,” but it does not tell
    us which ratio should be used for the proration. Post, at
    3.) The use of different rates finds no support in the stat
    ute. The dissent objects that the statute “prescribes no
    particular rate,” post, at 7, but in fact it does—54 days of
    credit per year of good behavior—and it further requires
    that credit for the last year be “prorated” using the same
    proportion. Moreover, the dissent’s application of different
    rates leads to odd results. For example, a model prisoner
    sentenced on two separate 5-year terms (with a break in
    between) will serve a different number of days from one
    sentenced to a single 10-year term. How can this be if
    both prisoners are earning 54 days of credit for each of
    their 10 years in prison?
       Fourth, §3624(b)(2) provides that good time credit “shall
    vest on the date the prisoner is released from custody.”
    (This provision does not apply to prisoners, like petition
    ers, who committed their offenses before it was amended
    in 1996, but the dissent plainly intends for its approach to
    apply more broadly. See post, at 9 (noting the effect on
    “almost 200,000 federal prisoners”).) Yet under the dis
    sent’s approach, credit appears to vest immediately. See
    post, at 3 (Days of credit for the first year “go toward
    completion of the next year” so that the prisoner “would
                      Cite as: 560 U. S. ____ (2010)           17
    
                          Opinion of the Court
    
    need another 311 days behind bars before the second year
    of his term of imprisonment is at an end”). And if it does
    not, then the situation quickly becomes complicated.
    What happens if, say, on the last day of the 10th “adminis
    trative segmen[t]” (somewhere in the 8th calendar year), a
    prisoner badly misbehaves and prison officials punish him
    by taking away all of his previously earned credit? Cf. 28
    CFR §541.13 (2009) (prescribing sanctions for prohibited
    acts). Does the BOP retroactively adjust the duration of
    all of his administrative segments to 365 days so that the
    prisoner now finds himself in the middle of the 8th “ad
    ministrative segmen[t]”? (Again we do not know if the
    BOP would find such a system administrable, and we
    doubt that this system would be more comprehensible to a
    prisoner.) If so, does the prisoner have a second opportu
    nity to earn credit for good behavior for the 9th “adminis
    trative segmen[t]” that he had previously completed but
    now must account for again? Cf. §3624(b)(1) (“Credit that
    has not been earned may not later be granted”). Or, hav
    ing previously awarded (and taken away) credit for that
    segment, are prison authorities left without any incentive
    to offer for good behavior?
      Finally, the dissent, like petitioners, invokes the rule of
    lenity to support its interpretation. But, the best efforts of
    the dissent notwithstanding, we still see no “grievous
    ambiguity or uncertainty” that would trigger the rule’s
    application. We remain convinced that the BOP’s ap
    proach reflects the most natural reading of the statutory
    language and the most consistent with its purpose. What
    ever the merits of the dissent’s policy arguments, the
    statute does not require the BOP to accept them.
    
     For all of these reasons, we conclude that the BOP’s
    methodology is lawful. The Ninth Circuit’s judgment is
    
                                                        Affirmed.
    18                   BARBER v. THOMAS
    
                         Opinion of the Court
                    Appendix to opinion of the Court
    
                            APPENDIX
    
      A fuller example of the BOP’s method for calculat
      ing “credit for the last year or portion of a year of
                    the term of imprisonment”
       The defendant is sentenced to 10 years’ imprisonment.
    As a prisoner he exhibits exemplary behavior and is
    awarded the maximum credit of 54 days at the end of each
    year served in prison. At the end of Year 8, the prisoner
    has 2 years remaining in his sentence and has accumu
    lated 432 days of good time credit. Because the difference
    between the time remaining in his sentence and the
    amount of accumulated credit (i.e., 730 - 432) is less than a
    year (298 days), Year 9 is the last year he will spend in
    prison. (Year 10 has been completely offset by 365 of the
    432 days of accumulated credit.) Further, Year 9 will be a
    partial year of 298 days (the other 67 days of the year
    being offset by the remainder of the accumulated credit).
       Here is where the elementary algebra comes in. We
    know that x, the good time, plus y, the remaining time
    served, must add up to 298. This gives us our first equa
    tion: x + y = 298.
       We also know that the ratio of good time earned in the
    portion of the final year to the amount of time served in
    that year must equal the ratio of a full year’s good time
    credit to the amount of time served in a full year. The
    latter ratio is 54/365 or .148. Thus, we know that
    x/y = .148, or to put it another way, x = .148y. Because we
    know the value of x in terms of y, we can make a substitu
    tion in our first equation to get .148y + y = 298. We then
    add the two y terms together (1.148y = 298), and we solve
    for y, which gives us y = 260. Now we can plug that value
    into our first equation to solve for x (the good time credit).
    If we subtract 260 from 298, we find that x = 38.
       The offender will have to serve 260 days in prison in
    Year 9, and he will receive 38 days additional good time
                     Cite as: 560 U. S. ____ (2010)           19
    
                         Opinion of the Court
                    Appendix to opinion of the Court
    
    credit for that time served. The prisoner’s total good time
    is 470 days (432 + 38 = 470). His total time served is 3180
    days.
       As a final matter, while we have described the foregoing
    as the method to calculate credit for the portion of the last
    year to more transparently track the relevant statutory
    language, we note that the mathematical formula can be
    used to calculate the amount of maximum available credit
    for an entire sentence. Using the equations supplied
    above, if we divide the total number of days in a sentence
    by 1.148, we get the minimum number of days that a
    defendant must serve in that sentence. If we then sub
    tract the number of days served from the total number of
    days in the sentence, we arrive at the maximum number
    of good time credit days the prisoner can earn. The stat
    ute, however, awards them on a yearly basis (but for the
    “last year or portion” thereof).
                     Cite as: 560 U. S. ____ (2010)            1
    
                        KENNEDY, J., dissenting
    
    SUPREME COURT OF THE UNITED STATES
                             _________________
    
                             No. 09–5201
                             _________________
    
    
      MICHAEL GARY BARBER, ET AL., PETITIONERS v.
               J. E. THOMAS, WARDEN
     ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
    
                APPEALS FOR THE NINTH CIRCUIT
    
                            [June 7, 2010]
    
    
       JUSTICE KENNEDY, with whom JUSTICE STEVENS and
    JUSTICE GINSBURG join, dissenting.
       The Court has interpreted a federal sentencing statute
    in a manner that disadvantages almost 200,000 federal
    prisoners. See Pet. for Cert. 11, and n. 2. It adopts this
    reading despite the existence of an alternative interpreta
    tion that is more consistent with the statute’s text. Absent
    a clear congressional directive, the statute ought not to be
    read as the Court reads it. For the Court’s interpreta
    tion—an interpretation that in my submission is quite
    incorrect—imposes tens of thousands of years of additional
    prison time on federal prisoners according to a mathe
    matical formula they will be unable to understand. And if
    the only way to call attention to the human implications of
    this case is to speak in terms of economics, then it should
    be noted that the Court’s interpretation comes at a cost to
    the taxpayers of untold millions of dollars. See id., at 11.
    The interpretation the Court adopts, moreover, will be
    devastating to the prisoners who have behaved the best
    and will undermine the purpose of the statute. These
    considerations, and those stated below, require this re
    spectful dissent.
                                I
      The federal sentencing statute at issue here provides:
    2                    BARBER v. THOMAS
    
                        KENNEDY, J., dissenting
    
        “[A] prisoner who is serving a term of imprisonment of
        more than 1 year[,] other than a term of imprisonment
        for the duration of the prisoner’s life, may receive
        credit toward the service of the prisoner’s sentence,
        beyond the time served, of up to 54 days at the end of
        each year of the prisoner’s term of imprisonment, be
        ginning at the end of the first year of the term, subject
        to determination by the Bureau of Prisons that, dur
        ing that year, the prisoner has displayed exemplary
        compliance with institutional disciplinary regula
        tions. . . . [C]redit for the last year or portion of a year
        of the term of imprisonment shall be prorated and
        credited within the last six weeks of the sentence.” 
    18 U.S. C
    . §3624(b)(1) (emphasis added).
    According to the Court, the phrase “term of imprisonment”
    must mean “time actually served” the third time that it
    appears in this particular subsection. But the Court gives
    the phrase a different interpretation the first two times it
    is used in the very same sentence. This in itself indicates
    that something is quite wrong here.
       Petitioners invite the Court to read “term of imprison
    ment” to mean “the sentence imposed.” This, too, seems
    unworkable. And it can be acknowledged that the Court’s
    rejection of this interpretation is correct.
       The choice, however, is not just between the Court’s
    reading and that offered by petitioners. There is a third
    possibility, one more consistent with the statute than
    either of these two alternatives.
       A fair reading of the statute, and a necessary reading to
    accomplish its purpose best, is to interpret the phrase
    “term of imprisonment” to refer to the span of time that a
    prisoner must account for in order to obtain release. The
    length of the term is set at the outset by the criminal
    sentence imposed. The prisoner earns release when that
    term has been fully completed. Most of the term will be
                      Cite as: 560 U. S. ____ (2010)            3
    
                        KENNEDY, J., dissenting
    
    satisfied through time spent behind bars. Assuming the
    prisoner is well behaved, however, he may earn good time
    credits along the way; and those credits may substitute for
    actual prison time. Each year of the term comprises a full
    365 days, which must be accounted for through a combina
    tion of prison time and credits. Thus conceived, a pris
    oner’s “term” is the administrative period along which
    progress toward eventual freedom is marked.
       Consider the Court’s example of a prisoner subject to a
    ten-year sentence. See ante, at 2–4. The sentence is
    divided into ten 365-day segments. Each segment consti
    tutes a year of the term. The prisoner will spend the first
    365 days behind bars. In the statute’s words, he has
    reached “the end of the first year of the term.” Now is the
    time for credit to be awarded, and he may receive up to 54
    days if sufficiently well behaved. Because he has already
    completed a full year of his term, those credits go toward
    completion of the next year. If, based on good behavior, he
    has earned the maximum of 54 days, he would need an
    other 311 days behind bars before the second year of his
    term of imprisonment is at an end (because 54 + 311 =
    365). If he has earned fewer than 54 days, a longer incar
    ceration will be required to reach 365. Regardless, once
    the prisoner reaches the end of the second year of his
    term, he will again be eligible to receive good time credits.
       This process repeats itself for the third year of the term,
    and so on. In the final year of his term (in this example,
    the tenth segment into which his term has been divided),
    the prisoner will receive credit in a prorated amount, to be
    awarded “within the last six weeks of the sentence.” This
    ensures that the prisoner does not reach the end of year
    ten, only to find that he has just earned 54 days of credit
    he no longer needs.
       The controlling rule is that each year of the prisoner’s
    term—each of the ten administrative segments—
    comprises 365 days that must be completed through a
    4                   BARBER v. THOMAS
    
                        KENNEDY, J., dissenting
    
    combination of service and credits. By combining actual
    prison time with the credits he has earned, a prisoner may
    complete a particular year of his term in less than 365
    calendar days. As a result, credits may enable a well
    behaved prisoner to complete his ten-year sentence before
    ten calendar years have elapsed. For a ten-year (3,650
    day) sentence, a prisoner will serve 3,117 days behind bars
    if he earns a maximum of approximately 533 credits. This
    is 63 more days of credit than under the Court’s reading—
    more than 6 additional credit days for every year of the
    sentence imposed.
       Reading “term of imprisonment” this way is consistent
    with all parts of the statute. The prisoner receives his
    credit “at the end of each year of [his] term of imprison
    ment,” a process that “begin[s] at the end of the first year
    of the term.” Credit is only awarded if the prisoner has
    proven well behaved “during that year.” This interpreta
    tion fulfills the “objective of §3624”—rewarding a prisoner
    for exemplary conduct during the preceding year. See
    ante, at 8.
       This approach also has a textual integrity that the
    Court’s reading does not: It gives “term of imprisonment”
    the same meaning each time it is used by the statute.
    Every time it appears in §3624(b)(1), “term of imprison
    ment” refers to the administrative period that a prisoner
    must complete in order to earn his freedom. The Court, by
    contrast, would read this phrase to mean “time actually
    served” the third time it is used, but “the sentence im
    posed” the first two times it is used (“ ‘a prisoner who is
    serving a term of imprisonment of more than 1 year[,]
    other than a term of imprisonment for the duration of the
    prisoner’s life’ ”). See ante, at 8–9. The Court’s interpreta
    tion thus runs afoul of the “ ‘presumption that a given
    term is used to mean the same thing throughout a stat
    ute.’ ” Ante, at 9 (quoting Brown v. Gardner, 
    513 U.S. 115
    , 118 (1994)). The inconsistency here is particularly
                      Cite as: 560 U. S. ____ (2010)            5
    
                        KENNEDY, J., dissenting
    
    egregious because all three uses appear in the same sen
    tence. See id., at 118 (“[The] presumption [is] surely at its
    most vigorous when a term is repeated within a given
    sentence”).
       The Court responds by noting another part of the stat
    ute, a provision stating that prisoners shall receive cloth
    ing, money, and transportation “[u]pon the release of [the]
    prisoner on the expiration of the prisoner’s term of impris
    onment.” §3624(d). A prisoner is released at the end of
    his actual time behind bars, says the Court, and so “term
    of imprisonment” must here refer to time actually served.
    Yet release also comes at the end of a prisoner’s “term” in
    the sense described above—that is, when the balance of
    the sentence has been reduced to zero through a combina
    tion of prison time and good time credits. Indeed, this
    administrative use of the phrase fits well with the word
    “expiration,” which in its most natural sense in this con
    text refers to the close of a formal accounting period. See
    Black’s Law Dictionary 619 (8th ed. 2004) (“A coming to
    an end; esp., a formal termination on a closing date”). By
    contrast, it is awkward at best to say, as the Court would
    have it, that a prisoner’s actual time behind bars is some
    thing that “expires.”
       The Court’s approach produces yet another oddity. The
    statute requires that prorated credit be awarded for “the
    last year or portion of a year of the term of imprisonment.”
    One might naturally assume that the last year of a ten
    year term would be year ten. That is how things work
    under the approach described above, in which a ten-year
    sentence is subdivided into ten administrative segments.
       But under the Court’s reading, a prisoner serving a ten
    year sentence will never reach year ten of his term; year
    ten simply does not exist. According to the Court, year
    nine is the final year, and even year nine is not a full year:
    It lasts “no more than 298 days.” Ante, at 3. If this
    sounds confusing, it will be all the more so to the prisoner
    6                   BARBER v. THOMAS
    
                        KENNEDY, J., dissenting
    
    who has just received his sentence and turns to the statute
    books to figure out when to expect his freedom.
       The Court does not even attempt to defend these flaws.
    Instead, it points to four supposed defects in the approach
    described above. None withstands examination.
       First, the Court notes that the statute requires the
    release of a prisoner “upon ‘the expiration of the prisoner’s
    term of imprisonment, less any time credited’ for good
    behavior.” Ante, at 15 (quoting §3624(a)). But if “term of
    imprisonment” truly refers to the entire span that a pris
    oner must complete to earn his freedom—a period that
    accounts both for actual time and for good time credits—
    then why would the “less any time credited” language be
    appropriate? The answer is that this provision—which
    appears at the very beginning of the section entitled “Re
    lease of a prisoner”—announces to a prisoner when release
    may be expected: when the prisoner’s term expires, taking
    into account credit days “as provided in subsection (b).”
    §3624(a) (bold face deleted). This use of language is com
    mon. A debtor who says “I will write a check for what I
    owe you, less what you owe me” is simply saying “I will
    pay what I owe, taking into account your debts to me.”
    Perhaps the same meaning could have been conveyed
    using different words, but this is hardly probative.
       Second, the Court alleges that the above approach con
    flicts with the statute’s requirement that credit be
    awarded “at the end of each year” based upon behavior
    “during that year.” After all, if a year of the term can be
    satisfied in part through credit, then it may last less than
    a full calendar year. Yet the statute does not require that
    credit be awarded at the end of a calendar year for good
    behavior during a calendar year. What it requires is that
    credit be awarded “at the end of each year of the prisoner’s
    term of imprisonment” for good behavior “during that
    year.” And this is precisely what the above approach does.
       Third, the Court frets that, under the approach above,
                     Cite as: 560 U. S. ____ (2010)            7
    
                        KENNEDY, J., dissenting
    
    prisoners will earn credit at different rates during a single
    sentence. It admonishes that “[t]he use of different rates
    finds no support in the statute.” Ante, at 16. This re
    sponse is telling. The statute, in fact, prescribes no par
    ticular rate—and certainly no formula based on a rate—
    except as embodied in one clear directive: Prisoners are
    eligible to earn “up to 54 days at the end of each year of
    the prisoner’s term of imprisonment.” As to that com
    mand, the above approach is perfectly faithful.
       Fourth, the Court suggests that the above approach
    causes credit to vest immediately, contrary to the statute.
    Again, this is not true. As per the statute, credit only
    vests “on the date the prisoner is released from custody,”
    §3624(b)(2), meaning that it can be revoked at any time
    before that date. This gives prisoners approaching their
    release date an extra incentive to behave.
       As a fallback, the Court wonders what would happen if
    a prisoner misbehaved on the final day of his ten-year
    sentence. Would the Bureau of Prisons (BOP) be forced to
    “retroactively adjust the duration of all of his [term years]
    to 365 days”? Ante, at 17. The answer is what one might
    suppose: A prisoner whose credits are revoked will find
    himself precisely where he would have been if those cred
    its had never been earned. All years of the term remain
    365 days, as they always have. But a misbehaving pris
    oner who had formerly earned, say, 500 credits will find
    himself without the benefit of those 500 days. That will
    leave him with more of his term to complete—500 days
    more, to be precise. If he behaves well again, he can re
    sume earning credit for the remainder of his term, but he
    has lost the opportunity to earn credits for any prior years.
    See §3624(b)(1). This is not at all confusing for a prisoner;
    and certainly it is as straightforward, if not more so, than
    the Court’s approach. The Court’s view causes a prisoner’s
    “term of imprisonment” to shrink over time according to
    an algebraic formula, only to expand again if he misbe
    8                    BARBER v. THOMAS
    
                        KENNEDY, J., dissenting
    
    haves.
       Finally, the Court speculates that BOP might find the
    above approach difficult to administer. The Court identi
    fies no basis for this claim, nor does one exist. The infor
    mation used to calculate a prisoner’s term under the above
    approach is the same as it is under the Court’s approach.
    True, a prisoner may become eligible to be awarded credit
    on different calendar days during the course of his term.
    But under the Court’s approach, this also happens when
    awarding credit in the final year. And, it goes without
    saying, federal prisoners begin their incarceration on
    different calendar days anyway, so that under any ap
    proach, BOP will be forced to evaluate prisoners through
    out the calendar year.
                                   II
       The Court’s reading of §3624(b)(1), therefore, is less
    consistent with the text than the reading explained above.
    But even if these interpretations were in equipoise, under
    any fair application the rule of lenity should tip the bal
    ance in petitioners’ favor. When a penal statute is suscep
    tible of two interpretations, the one more favorable to the
    defendant must be chosen unless “text, structure, and
    history . . . establish that the [harsher] position is unam
    biguously correct.” United States v. Granderson, 
    511 U.S. 39
    , 54 (1994). Resolving ambiguity in favor of lenity en
    sures that statutes provide “fair warning[,] . . . in language
    that the common world will understand, of what the law
    intends to do if a certain line is passed.” United States v.
    Bass, 
    404 U.S. 336
    , 348 (1971) (internal quotation marks
    omitted). The rule thus applies “not only to interpreta
    tions of the substantive ambit of criminal prohibitions, but
    also to the penalties they impose.” Bifulco v. United
    States, 
    447 U.S. 381
    , 387 (1980).
       The Court assumes without deciding that §3624(b) is
    penal in nature. See ante, at 13. No assumption is neces
                     Cite as: 560 U. S. ____ (2010)           9
    
                        KENNEDY, J., dissenting
    
    sary: The statutory provision awarding good time credits
    “in fact is one determinant of [a] prison term,” so that a
    prisoner’s “effective sentence is altered once this determi
    nant is changed.” Weaver v. Graham, 
    450 U.S. 24
    , 32
    (1981). In Weaver, the Court considered whether an
    amendment to Florida’s statutory formula for calculating
    good time credits implicated the Ex Post Facto Clause.
    The Court concluded that it did, as the new statute “sub
    stantially alter[ed] the consequences attached to a crime
    already completed, and therefore change[d] ‘the quantum
    of punishment.’ ” Id., at 33 (quoting Dobbert v. Florida,
    
    432 U.S. 282
    , 294 (1977)). For the same reason, the penal
    effect of §3624(b)(1) is substantial enough to implicate the
    rule of lenity. We should not disadvantage almost 200,000
    federal prisoners unless Congress clearly warned them
    they would face that harsh result.
                                  III
       The Government—although not the Court—argues that
    we should embrace its interpretation out of deference to
    BOP. BOP has been charged by the Attorney General
    with responsibility for “[a]pproving inmate disciplinary
    and good time regulations.” 28 CFR §0.96(s) (2009). BOP
    has long followed the same credit-calculation method now
    advocated by the Court. The Government argues that we
    should defer to BOP’s choice as a permissible exercise of
    its delegated responsibility.
       This argument fails on multiple levels. There is no
    indication that BOP has exercised the sort of interpretive
    authority that would merit deference under Chevron
    U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
    
    467 U.S. 837
     (1984). The statute does not create a legis
    lative gap for BOP to fill. To the contrary, the procedures
    that govern the timing of credit awards are spelled out in
    great detail. Cf. Lopez v. Davis, 
    531 U.S. 230
    , 241–242
    (2001) (where statute says that BOP “may” grant early
    10                  BARBER v. THOMAS
    
                        KENNEDY, J., dissenting
    
    release to certain prisoners, without specifying further
    criteria, Congress deliberately created a “statutory gap”).
    The statute even goes so far as to explain what to do “[i]f
    the date for a prisoner’s release falls on a Saturday, a
    Sunday, or a legal holiday.” §3624(a). This legislative
    specificity as to timing contrasts with other provisions
    that do delegate authority to BOP. E.g., §3624(b)(1)
    (awarding of credit is “subject to determination” by BOP
    that the prisoner “has displayed exemplary compliance
    with institutional disciplinary regulations”).
       BOP has not claimed that its view is the product of any
    “formal administrative procedure tending to foster the
    fairness and deliberation that should underlie a pro
    nouncement” with the force of law. United States v. Mead
    Corp., 
    533 U.S. 218
    , 230 (2001). In 2005, BOP made final
    an administrative rule adopting its preferred methodology.
    70 Fed. Reg. 66752 (adopting 28 CFR §523.20). But when
    pressed during an earlier stage of this litigation, BOP
    conceded that it had “failed to articulate in the adminis
    trative record the rationale upon which it relied when it
    promulgated” the rule. Tablada v. Thomas, 
    533 F.3d 800
    ,
    805 (CA9 2008). The Court of Appeals accepted BOP’s
    concession, ibid., and that aspect of its ruling has not been
    appealed.
       As a fallback position, the Government argues that
    BOP’s interpretation should receive at least some defer
    ence under Skidmore v. Swift & Co., 
    323 U.S. 134
     (1944).
    But under Skidmore, an agency decision only merits “re
    spect proportional to its ‘power to persuade.’ ” Mead,
    supra, at 235 (quoting Skidmore, supra, at 140). BOP’s
    position is of long standing, but the administrative record
    is noteworthy for what it does not contain—namely, any
    reasoned justification for preferring BOP’s methodology
    over statutorily permissible alternatives. BOP has consis
    tently adhered to its mistaken belief that its approach is
    the only one that can be squared with the text. See 62
                     Cite as: 560 U. S. ____ (2010)          11
    
                        KENNEDY, J., dissenting
    
    Fed. Reg. 50786 (1997) (explanation to interim rule assert
    ing that the correct methodology “had been clearly stated
    by statute since the implementation of the Sentencing
    Reform Act of 1984”). For example, at no point did BOP
    consider, much less consciously reject, the interpretation
    outlined here. Cf. Reno v. Koray, 
    515 U.S. 50
    , 60–61
    (1995) (deferring to BOP’s reasoned decision to reject one
    interpretation in favor of another). An agency need not
    consider all possible alternatives. But deference is not
    owed to an agency view, however consistently held, that
    from the start has been premised on legal error. See
    Mead, supra, at 228; Skidmore, supra, at 140.
                            *     *     *
      The straightforward interpretation urged here accords
    with the purpose of the statute, which is to give prisoners
    incentive for good behavior and dignity from its promised
    reward. Prisoners can add 54 days to each year. And
    when they do so, they have something tangible. In place
    of that simple calculation, of clear meaning, of a calendar
    that can be marked, the Court insists on something differ
    ent. It advocates an interpretation that uses different
    definitions for the same phrase in the same sentence;
    denies prisoners the benefit of the rule of lenity; and caps
    off its decision with an appendix that contains an alge
    braic formula to hang on a cell wall.
      To a prisoner, time behind bars is not some theoreti
    cal or mathematical concept. It is something real, even
    terrifying. Survival itself may be at stake. See Dept.
    of Justice, Bureau of Justice Statistics, C. Mumola,
    Suicide and Homicide in State Prisons and Local
    Jails (NCJ 210036, Aug. 2005), online at http://
    bjs.ojp.usdoj.gov/content/pub/pdf/shsplj.pdf (all Internet
    materials as visited June 2, 2010, and available in
    Clerk of Court’s case file) (prison homicide rates); Na
    tional Prison Rape Elimination Commission Re
    12                  BARBER v. THOMAS
    
                       KENNEDY, J., dissenting
    
    port, p. 4 (June 2009) (citing a national survey estimating
    that 60,500 state and federal prisoners had been sexually
    abused during the preceding year). To this time, the
    Court adds days—compounded to years. We should not
    embrace this harsh result where Congress itself has not
    done so in clear terms. I would reverse the judgment of
    the Court of Appeals.
    

Document Info

DocketNumber: 09-5201

Citation Numbers: 560 U.S. 474, 130 S. Ct. 2499, 177 L. Ed. 2d 1, 2010 U.S. LEXIS 4717

Filed Date: 6/7/2010

Precedential Status: Precedential

Modified Date: 3/21/2018

Authorities (26)

United States v. Detroit Timber & Lumber Co. , 200 U.S. 321 ( 1906 )

Atlantic Cleaners & Dyers, Inc. v. United States , 286 U.S. 427 ( 1932 )

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

Ladner v. United States , 358 U.S. 169 ( 1958 )

United States v. Bass , 404 U.S. 336 ( 1971 )

McGinnis v. Royster , 410 U.S. 263 ( 1973 )

Dobbert v. Florida , 432 U.S. 282 ( 1977 )

United States v. Grayson , 438 U.S. 41 ( 1978 )

Bifulco v. United States , 447 U.S. 381 ( 1980 )

Weaver v. Graham , 450 U.S. 24 ( 1981 )

Chevron USA Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 ( 1984 )

Mistretta v. United States , 488 U.S. 361 ( 1989 )

United States v. RLC , 503 U.S. 291 ( 1992 )

United States v. Granderson , 511 U.S. 39 ( 1994 )

Brown v. Gardner , 513 U.S. 115 ( 1994 )

Heintz v. Jenkins , 514 U.S. 291 ( 1995 )

Reno v. Koray , 515 U.S. 50 ( 1995 )

Robinson v. Shell Oil Co. , 519 U.S. 337 ( 1997 )

Muscarello v. United States , 524 U.S. 125 ( 1998 )

Lopez v. Davis , 531 U.S. 230 ( 2001 )

View All Authorities »

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Pepper v. United States , 131 S. Ct. 1229 ( 2011 )

United States v. Booker , 644 F.3d 12 ( 2011 )

United States v. Galaviz , 645 F.3d 347 ( 2011 )

Schleining v. Thomas , 642 F.3d 1242 ( 2011 )

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