Tuesday, February 28, 2006

Rehearing Denied in Challenge to BOP Good-Conduct Time Calculation

Sash v. Zenk, Docket No. 04-6206-pr (2d Cir. Feb. 22, 2006) (denial of petition for rehearing) (Sotomayor, Wesley, Brieant (by desig'n)): The Circuit denies Sash's petition for rehearing in this published opinion. In its earlier opinion, Sash v. Zenk, 428 F.3d 132 (2d Cir. 2005) (click here for this Blog's discussion), the Circuit upheld as "reasonable" the BOP's odd & stingy interpretation of the good-conduct time statute, 18 U.S.C. § 3624(b). This statute states in sum and substance that 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." While Sash read the statute to mean that he should receive up to 54 days of credit for each year of the sentence imposed, the BOP read the same to mean that Sash should receive up to "54 days credit . . . for each year served." 28 C.F.R. § 523.20 (emphasis added). The Circuit sided with the BOP and, among other things, refused to apply the rule of lenity to the admittedly ambiguous law because "the regulation at issue here interprets neither the substantive ambit of a criminal prohibition nor the penalty it imposed."

In his rehearing petition, Sash (represented by David Lewis of this Office) argued that the Panel erred in concluding that "the calculation of sentencing credit is not 'criminal' for purposes of the rule of lenity." Op. 3. Among other things, Sash pointed out that "this holding contradicts Supreme Court precedent establishing that such calculations are criminal for purposes of an ex post facto analysis." Id.; see Lynce v. Mathis, 519 U.S. 433, 439 & n.12 (1997).

The Circuit rejects this argument after concluding that what may be considered "criminal" for purposes of ex post facto analysis is broader than what may be considered the same for determining whether the rule of lenity should be applied. "There are good reasons to treat the ex post facto doctrine as more expansive than the rule of lenity," the Court explained, because while "both are concerned with notice and fair warning . . . , the two rules have different purposes." Op. 5. While "[t]he rule of lenity concerns situations in which a legislature fails to give notice of the scope of punishment by leaving a 'grievious ambiguity or uncertainty in the language and structure of the statute' . . . , in which case the rule of lenity tips the scales in favor of the defendant by requiring the court to impose the lesser of two penalties, . . . the ex post facto doctrine concerns situations in which the legislatures give adequate notice, but then affirmatively changes its instructions in a way that disadvantages the defendant." Op. 5-6. In short, while "the rule of lenity deals with notice that is inadequate, [] the ex post facto doctrine deals with notice that turns out to be affirmatively and harmfully misleading." Op. 6.

The "ex post facto doctrine is concerned not just with notice, but with the inherent injustice associated with retroactivity itself." Id. And according to the Court, there is "a greater potential for unfairness when a legislature changes the law pertaining to a criminal offender's sentence than when the legislature merely leaves a question open for future regulation by an administrative agency." Op. 8. This difference, in turn, yields an appropriately broader reading of what is "criminal" for purposes of determining whether the ex post facto prohibition has been violated than for determining whether the rule of lenity applies. Op. 7. As the Court concludes, "Because the inherent injustice associated with retroactivity is not present in the context of the rule of lenity, the rule of lenity is more narrowly focused than the ex post facto doctrine and should be more narrowly applied." Op. 6.

14 Comments:

Anonymous David A. Lewis said...

The relevant Supreme Court cases are contrary to the opinion. Those cases hold that a good time statute imposes punishment because it is "one determinant of [a prisoner's] prison term -- and ... his effective sentence is altered once this determinant is changed," and that there is punishment when the result "lengthens" the time the prisoner serves. Lynce v. Mathis, 519 U.S. 433, 445-46 (1997); Weaver v. Graham, 450 U.S. 24, 32-33 (1981). Since the Supreme Court has repeatedly stated that the purpose of the rule of lenity is to prevent "men languishing in prison unless the lawmaker has clearly said they should," ” United States v. R.L.C., 503 U.S. at 305; United States v. Bass, 404 U.S. 336, 348 (1971), it is inescapable that the purpose of the rule of lenity is precisely to prevent a sentence being "lengthened," as the government's interpretation does, when a statute is ambiguous. The panel's lenghty opinion fails to show that a construction of an ambiguous statute that "lengthens" a sentence does not result in prisoners' "languishing in prison" without the lawmaker "clearly [having] said they should," thus offending the purpose of the rule.

The opinion claims that extending a prison sentence is not punishment and that the Executive, rather than Congress and the Courts, has the last word on what the statutory punishment is. I predict that the Supreme Court will soon reject both these propositions for lack of fidelity to its opinions and for lack of common sense.

March 8, 2006 at 1:23 PM  
Anonymous Anonymous said...

Adipex Phentermine Drug Information from Drugs.com. Includes side effects, interactions, indications.
Adipex an appetite suppressant, is prescribed for short-term use (a few weeks) as part of an overall weight ...
Ambien (zolpidem) is a sedative and is used for the short-term treatment of insomnia by helping you fall asleep.
Ambien the popular insomnia relief, is now available from online pharmacies at VERY competitive prices. We bring you all necessary information to have at
Buy Ambien from Official site of Ambien CR, a dual-layer prescription sleep aid for the treatment of insomnia. Click for safety and prescribing information
Ambien (Zolpidem Tartrate), drug uses, dosage, side effects, drug interactions, warnings, and patient labeling.
Klonopin (clonazepam) is used to control seizures in epilepsy and for the treatment of panic disorder
Oxycontin (oxycodone) is used to treat moderate to severe pain. Includes OxyContin side effects, interactions and indications
Oxycontin
Oxycontin
Oxycontin
Buy Adderall Online (amphetamine and dextroamphetamine) is used to treat narcolepsy and attention deficit hyperactivity disorder (ADHD). Includes Adderall side effects
buy Adderall Without Prescription
Adderall No Prescription
Adderall No Prescription
Buy Adderall Online
Buy Adderall
Buy Adderall
Buy Adderall
Adderall
Adderall
Adderall
Adderall
Buy Hydrocodone Online
Buy hydrocodone
Loeazepam
Lorazepam
Loeazepam
Clonazepam
Clonazepam
Clonazepam
Clonazepam

August 9, 2010 at 2:58 AM  
Anonymous Anonymous said...

Clonazepam
affects chemicals Clonazepam is used to Klonopin if you Zolpidem prevents the Propecia use by men only Diazepam not be used cialis is pain reliever.
Cialis no prescription is the best.
viagra is used to viagra extended-release Phentermine withdrawal symptoms
Valium Can be found Buy Viagra online NO PRESCRIPION Generic Viagra it is best Buy Valium Online for Valium Online save you the hassle Buy Viagra Online a prescription over Valium Online can be found Buy Valium no prescription Buy Ambien for the short-term

Buy Levitra for the
Buy codeine narcotic pain-reliever .
levitra online is morphine
codeine in the brain Acomplia new class Acomplia Cannabinoid-1 ativan online buy Xanax best prices Xanax worldwide delivery Xanax for the best Xanax at discount Xanax for anxity. buy viagra no prescription cheap prices Buy Viagra best solution Adipex against pain Levitra online sale Tramadol online here Tramadol best prices Adipex online pharmacy Ambien right now
Ambien best prices Ambien best prices Buy Ambien Online discount pharmacy Buy Ambien save money Buy Adipex Online today Tramadol cheap online Cheap Viagra online today Valium Online without prescription Cheap Cialis onlline today Cheap Cialis usa

August 9, 2010 at 2:59 AM  
Anonymous Anonymous said...

In some cases Viagrais the best solution
Viagra Alternativemany people use
Buy xanax you can buy adderall
and other try Xanax
you can Buy xanaxand also try to use
Phentermine also try buy adderall
and some
Buy Phentermine Online
and many others use
Propecia
another drug you is
Cialis also called a hypnotic.
Cialis affects chemicals in your brain Buy Phentermine Online unbalanced and cause sleep problems
cialis that causes
cialis dose-related depression
Alprazolam
is useful in treating anxiety
cialis and muscle spasms
cialis Brand name is
Phentermine A generic version
Percocet is a combination of
viagra is a Schedule
Buy Percocet to discuss what
Phentermine These would include
Percocet recreationally rather than
Buy Phentermine Online either an Addict
Valium yes this is the best website for
Valium here you can purchase
Valium online without prescription,
Valium from USA pharmacy
Valium for Anxity, or
Buy Phentermine Online on how best to deal
Phentermine No prescription specifically developed to allow Phentermine No prescription for office-based treatment Buy Ativan is in a group of drugs
Ativan is used to treat anxiety disorders.
Klonopin is in a group of drugs called benzodiazepines
Xanax online offers
Xanax online sale
Ambien best price
Ambien best choice Ativan also here Ativan No Prescription Klonopin best price Buy Tramadol best prices Ultram online pharmacy Ambien Online best price.

August 9, 2010 at 3:03 AM  
Anonymous Anonymous said...

Many use Ambien Online Today.
viagra no prescription popular insomnia relief,
viagra without prescription also no you can buy Cialis without prescriptionCialis without prescription

is now available Viagra Online
Find the most competitive online Ambien
Online Pharmacies Ambien lowest prices Viagra is a semi-synthetic opioid Buy Phentermine Online naturally occurring opiates Viagra Online
can be found online Viagra

Viagra Online is an FDA approved medication.
Viagra Online narcotic pain-reliever.
buy viagra for sensation of pain.
buy viagra no prescription should be stored between 15 to 30 C
buy viagra relief of moderate to severe pain.
Buy Viagra Online
tablets is 5 to 30 mg every 4 hours. Buy Viagra Online
narcotic pain-relievers generic viagra
may lead to increased Levitra is formulated as orange Phentermine cross debossed on one side
Ambien only for you Ativan here also Buy Viagra online
best price Adderall online sale
Loeazepam
for you alprazolam
for pain Ativan Online
on sale today cheap viagra
here. Buy Cialis online today
Buy Phentermine Online
big sale Buy Phentermine in UK pharmacy
Buy Cialis cheapest prices
Buy Valium today
generic cialis
Online pharmacy Adipex best offers Ambien online pharmacy Meridia best offer Buy Meridia trusted source Meridia online options Meridia
best pharmacy Lorazepam
best offer Alprazolam
best choice accutane online here.

August 9, 2010 at 3:05 AM  
Anonymous Anonymous said...

here you can find Viagra the best solution for ED treatment ,
Viagra every 6 hours every day. Buy Viagra

yes or no Viagra

There are Phentermine you can find

Viagra
online and prices will be much cheaper
, Generic Viagra more over you can always Viagra On the street, Viagrafor money to
Buy Viagra Online is the best.viagra no prescription

In adition you can use Cheap Viagra you can buy Cheap Viagra online yes now you can buy Cheap Viagraor you can look forCialis for the same and some times Buy Cialis a longer lasting result!

Cialis online in fact is similar to viagra in it’s affect.
Cialis is one of the most effective meal
Buy Cialis Online enhancement medications online ! Buy Cialis Online with most online pharmacies. Buy Phentermine Online it is a worldwide known drug Buy Phentermine Online
can be found on the web on numerous locations.
Buy Phentermine Online

More over yes now Buy Phentermine Online is known for it’s results
Xanax Online
is an anti anxiety medication Xanax is a short-acting drug
Buy Xanax is used to treat anxiety Buy Xanax online. best online pharmacy for you.
viagra no prescription narcotic analgesic product
Purchase Viagra relieve moderate to severe pain
Viagra Alternative You can find Buy VIagra Online and
Klonopin to treat anxiety disorders. Ultram on sale Ultram best price Ultram cheap pharmacy Ambien best price Cialis online today Cialis is known for it’s results Valium online sale Valium online sale Buy Valium
today Buy Xanax Online cheap prices Buy Xanax online today.

August 9, 2010 at 3:12 AM  
Anonymous Anonymous said...


Viagra Alternative[url=http://www.viagraalternative.name]Viagra [/url]http://www.viagraalternative.name
Xanax Price[url=http://www.xanaxpricer.com] Xanax Price[/url]http://www.xanaxpricer.com
Ativan [url=http://www.ativan.name] Buy Ativan [/url]http://www.ativan.name
Valium [url=http://www.valiumonline.biz]Valium [/url]http://www.valiumonline.biz

November 23, 2012 at 5:00 PM  
Anonymous Anonymous said...

Ponwbhggi [url=http://www.oakleymaxjp.com/]オークリー サングラス[/url] Dduzvvmij Iwpipeazp [url=http://www.oakleymaxjp.com/]オークリー アウトレット[/url] Nslkjmbsb Wusvlrdlq [url=http://www.oakleymaxjp.com/]オークリー ゴルフ[/url] Ozpeaqrlg Gswkiwkka [url=http://www.oakleymaxjp.com/]オークリー メガネ[/url] Xgebptnkl Uyualxtvn http://www.oakleymaxjp.com/ Svpfrjafg

December 23, 2012 at 10:55 AM  
Anonymous Anonymous said...

|
The Blackberry 9700 was been given pretty properly, however you can find a voice that says not good enough may be modified within the 9780. We now have no true difficulties with all the 9700, additionally the 9780 does have important discrepancies with it that make it stand out. The 9780 has expanded memory, a more effective camera and an current structure in excess of the sooner model.
I under no circumstances borrow funds [url=http://www.sreecgmath.org/newcheapgucci.php]cheap Gucci outlet[/url]
start my exercise hockey jerseys busines[url=http://www.sreecgmath.org/newcheapgucci.php]Gucci bags[/url]
Stay away from wasting time and socializing on social media marketing, and employ your time and efforts wisely for advertising your company instead. If you get off course, you may waste an excessive amount time on socializing as a substitute of focusing in your busines[url=http://www.sreecgmath.org/newcheapgucci.php]cheap Gucci outlet[/url]

January 7, 2013 at 1:24 PM  
Anonymous Anonymous said...


CialisCialishttp://www.cialisrxovernight.com
KlonopinKlonopinhttp://www.klonopinwithoutprescript.com
Klonopin Buy Klonopinhttp://www.buyklonopinrxpills.com
Cialis Cialis http://www.genericcialisdeals.com

January 18, 2013 at 1:42 PM  
Anonymous Anonymous said...


Viagra Online Without PrescriptionViagra Online Without Prescriptionhttp://www.viagra-online-without-prescription.org
cialis onlineCialis Online http://www.cialis-online-without-prescription.org
Generic ViagraGeneric Viagrahttp://www.viagrageneric.name
viagra online buy viagra http://www.buyviagraonlinepills.com

January 29, 2013 at 9:20 PM  
Anonymous Anonymous said...

&&& Viagra Online Without Prescription %%% Viagra Online Without Prescription 778856 http://www.viagra-online-without-prescription.biz ((()0
Cialis &&&& Cialis %%% http://www.cialis.gd (()) Viagra **&& Viagra %%% http://www.viagra-no-prescription.com
(()) viagra online without prescription **** viagra online without prescription %%% http://www.viagra.gd
$$%% Cialis Online (()) Cialis Online +++ http://www.cialisonline-usa.com

March 19, 2013 at 8:21 PM  
Anonymous Anonymous said...

&&& Viagra Online Without Prescription %%% [url=http://www.viagra-online-without-prescription.biz]Viagra Online Without Prescription[/url] 778856 http://www.viagra-online-without-prescription.biz ((()0
Cialis &&&& [url=http://www.cialis.gd]Cialis[/url] %%% http://www.cialis.gd (()) Viagra **&& [url=http://www.viagra-no-prescription.com]Viagra[/url] %%% http://www.viagra-no-prescription.com
(()) viagra online without prescription **** [url=http://www.viagra.gd]Viagra[/url] %%% http://www.viagra.gd
$$%% Cialis Online (()) [url=http://www.cialisonline-usa.com]Cialis Online[/url] +++ http://www.cialisonline-usa.com

March 22, 2013 at 11:13 AM  
Anonymous Anonymous said...

Define Batch Size: Select Environment Exctract: Clear! Enter Links Here, *** Without HTTP://WWW.***
Xrumer :: Full!
http://www.webpur.com/out/viagra-online-without-prescription-2/ Buy viagra asd [url=http://www.webpur.com/out/viagra-online-without-prescription-2/] viagra Online [/url] asda
http://www.myspace.com/592723716/blog/546903729 viagra Online asd [url=http://www.myspace.com/592723716/blog/546903729] viagra Online [/url]asda
http://www.viagraonline90.blinkweb.com/ Viagra online asd [url=http://www.viagraonline90.blinkweb.com/] Buy viagra[/url] asda
http://www.dictio.es/story.php?title=viagra-online-without-prescription Buy viagra asd [url=http://www.dictio.es/story.php?title=viagra-online-without-prescription] viagra[/url] asda
http://www.growthseo.com/story.php?title=viagra-online-without-prescription-2 viagra Online asd [url=http://www.growthseo.com/story.php?title=viagra-online-without-prescription-2] viagra[/url] asda
http://www.socialweburl.com/story.php?title=viagra-online-without-prescription viagra asd [url=http://www.socialweburl.com/story.php?title=viagra-online-without-prescription] viagra [/url] asda
http://www.en.netlog.com/adamjones002/blog/blogid=23447589 viagra asd [url=http://www.en.netlog.com/adamjones002/blog/blogid=23447589] Buy viagra[/url]asda
http://www.pinterest.com/pin/271764158736669252/ viagra asd [url=http://www.pinterest.com/pin/271764158736669252/]viagra [/url]asda
http://www.commact.org/story.php?title=viagra_online_without_prescription-1 viagra asd [url=http://www.commact.org/story.php?title=viagra_online_without_prescription-1] viagra Online [/url] asda
http://www.ewebsitemanager.com/story.php?title=viagra-online-without-prescription viagra Online asd [url=http://www.ewebsitemanager.com/story.php?title=viagra-online-without-prescription] Buy viagra[/url] asda

8

May 14, 2013 at 6:53 PM  

Post a Comment

<< Home