United States District Court, E.D. Virginia, Alexandria Division
T. S. Ellis, III United States District Judge
At issue on defendant's appeal of the magistrate judge's Order is whether the magistrate judge erred in denying defendant's motion to award credit for the ten-day period following the government's erroneous release of defendant after he had served only four days of a fifteen-day sentence imposed for a violation of defendant's supervised release conditions. As the matter has been fully briefed and argued orally, it is now ripe for disposition.
On February 16, 2016, defendant appeared before the magistrate judge for a violation of his supervised release conditions. At the hearing, defendant admitted that he had possessed marijuana in violation of his supervised release conditions, and accordingly, he was sentenced to fifteen days of incarceration and remanded to the custody of the United States Marshal's Service ("USMS") to serve that sentence. See United States v. Briceton Grant, No. l:14-MJ-656 (Feb. 18, 2016) (Order).
Shortly thereafter, on February 19, 2016, the USMS erroneously released defendant from custody, after defendant had served only four days of his fifteen-day sentence. Specifically, the Bureau of Prisons ("BOP") mistakenly awarded defendant credit for time served on the basis of a thirteen-day period of incarceration defendant had previously served; the BOP was unaware that this thirteen-day period of incarceration had already been applied to a sentence imposed for a previous supervised release violation. On February 25, 2016, shortly after learning of the mistake, U.S. Probation Officer Vakida Wilson filed a petition on probation, and shortly thereafter, an arrest warrant issued. See United States v. Briceton Grant, No. l:14-MJ-656 (Feb. 25, 2016) (Petition and Order). On Monday, February 29, 2016, defendant self-surrendered to the USMS and appeared in person for a hearing that afternoon. Thus, in total, defendant was erroneously at liberty for a period of ten days. During this ten-day period, defendant obtained employment at a convenience store. At the February 29, 2016 hearing, the magistrate judge released defendant and scheduled a hearing on the matter for March 8, 2016.
Shortly thereafter, defendant filed a motion to award credit for the ten days he was at liberty to the eleven days remaining in his fifteen-day sentence, and the government filed a timely response. On March 8, 2016, the magistrate judge denied defendant's motion for credit for time at liberty on the ground that under the totality of the circumstances, such as the brevity of the time at liberty and the character of the government's error, it was not appropriate to award defendant credit for the time he spent erroneously at liberty. United States v. Briceton Grant, No. l:14-MJ-656 (Mar. 9, 2016) (Order). Accordingly, the magistrate judge ordered defendant to serve the remaining eleven days of incarceration, permitting him to serve it intermittently on weekends. Id.
Thereafter, defendant timely appealed the magistrate judge's decision pursuant to Rule 58(g), Fed. R. Crim. P. The parties filed timely briefs, and on April 29, 2016, appeared for oral argument. At that time, the matter was taken under advisement. United States v. Briceton Grant, No. 1.-16-CR-62 (April 29, 2016) (Order). That same day, defendant was remanded to the custody of the USMS and the BOP to serve one day of his fifteen-day sentence, as only ten of the eleven days remaining to be served were in dispute. Id.
When a defendant appeals a ruling of a magistrate judge, "[t]he scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge." Rule 58(g)(2)(D), Fed. R. Crim. P. Thus, "[findings of fact... are reviewed for clear error, and issues of law ... are reviewed de novo." United States v. Bursey, 416 F.3d 301, 306 (4th Cir. 2005). Accordingly, the review of the magistrate judge's ruling is de novo with respect to the question whether the magistrate judge applied the correct rule of law, but is deferential to the extent that the magistrate judge's decision under the correct rule of law involved the exercise of discretion.
Defendant contends that the magistrate judge erred in denying his motion to award credit for for the ten days during which he was at liberty following his erroneous release. Put another way, defendant requests credit for time not served due to a government error. In response, the government contends that in light of the totality of the circumstances, the magistrate judge did not err in denying defendant's motion to award credit for the ten days he spent at liberty.
Although there is no constitutional right to remain free on erroneously granted liberty, Hawkins v. Freeman, 195 F.3d 732, 750 (4th Cir. 1999), nearly every circuit has recognized a federal common law rule awarding prisoners credit for time erroneously at liberty in appropriate circumstances. The Tenth Circuit first recognized this doctrine nearly a century ago in White v. Pearlman, 42 F.2d 788, 789 (10th Cir. 1930) (holding that when a "prisoner is [erroneously] discharged from a penal institution, without any contributing fault on his part, and without violation of conditions of parole, ... his sentence continues to run while he is at liberty"). The principle articulated in White has been applied in a number of cases and has become known as the rule of "credit for time at liberty." Lee v. Wilson, No. 1:11-cv-981, 2012 WL 3069407, at *6 (E.D. Va. 2012). Although numerous courts have recognized the rule of credit for time at liberty, the Fourth Circuit has never addressed whether a prisoner may receive credit toward a federal sentence for time spent erroneously at liberty.
The Third Circuit recently addressed the rule of credit for time erroneously at liberty in Vega v. United States, 493 F.3d 310, 314-19 (3d Cir. 2007). There, the Third Circuit articulated a burden-shifting test in the context of a petition for a writ of habeas corpus to determine whether a prisoner is entitled to credit for time at liberty. Id. at 319. Specifically, the Third Circuit explained in Vega that:
[i]n order for a prisoner to receive full credit for time he was erroneously at liberty, the prisoner's habeas petition must contain facts that demonstrate that he has been released despite having unserved time remaining on his sentence. Once he has Dated this, the burden shifts to the government to prove either (1) that there was no negligence on the part of the ...