White v. Federal Bureau of Prisons

Background

Marilyn Elaine White, proceeding without a lawyer, filed two petitions asking the court to review her custody. The court merged the petitions into one case. White was serving a 30-month prison term for a probation violation arising from an original charge of distributing methamphetamine.

White argued that the Federal Bureau of Prisons had miscalculated and failed to apply earned time credits under the First Step Act of 2018. She claimed that her participation in evidence-based programs and productive activities entitled her to 1,630 days of credits. She later objected to the magistrate judge’s recommendation, arguing that her low recidivism-risk scores entitled her to earn 15 credits for every 30 days of successful participation. She also argued that applying her credits should result in immediate release.

Earned-time-credit calculations

The court held that White’s interpretation of the First Step Act was incorrect. The statute provides 10 days of credit for every 30 days of successful participation in qualifying programs or activities. The court interpreted this as a calculation based on days of participation, not on the number of programs or classes completed. Participating in several programs at the same time therefore does not produce multiple sets of credits for the same 30-day period.

The court also considered the higher rate of 15 credits per 30 days. The statute provides an additional five days for a prisoner found to have a minimum or low risk of recidivating who has not increased that risk over two consecutive assessments. The Bureau interpreted the statute to require an initial low or minimum assessment followed by two more assessments showing that the risk had not increased. The court found that interpretation reasonable and deferred to it. Because White had received two low risk assessments, the court found that she was not yet eligible for the 15-day rate and needed one more assessment period maintaining her low risk score.

Use of the credits and jurisdiction

The court distinguished between earning credits and applying them. Under the First Step Act and the Bureau’s regulations, credits may be applied toward prerelease custody or supervised release, not immediate unsupervised release. White had no supervised-release term, so her credits could be used only for prerelease custody, such as placement in a residential reentry center or home confinement.

The court stated that White’s credits appeared to have been or would be properly applied toward prerelease custody. The record showed that she had accumulated 100 days of credits when her home-confinement referral was submitted, that the Bureau calculated she had later earned 160 days toward prerelease confinement, and that she had a projected release date of December 21, 2023, with a home-confinement placement date of September 22, 2023.

The court treated White’s request as a request for an earlier transfer to home confinement because that was the only available remedy. It held that this request was not reviewable through her petition because an order changing the place of confinement would not change the fact or length of her custody. The court therefore concluded that it lacked authority to grant that relief.

Disposition

Judge John R. Tunheim overruled White’s objection, adopted the magistrate judge’s report and recommendation, denied White’s petition, and dismissed the action without prejudice. The court explained that dismissal without prejudice reserved White’s ability to sue again if new information relevant to the decision became available. The court did not issue a certificate of appealability because White had not made the required substantial showing that a constitutional right had been denied and reasonable judges could not debate the result.