USCA4 Appeal: 24-6012 Doc: 9 Filed: 01/13/2025 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 24-6012
PAUL NICOLETTI,
Petitioner - Appellant,
v.
M. J. BAYLESS,
Respondent - Appellee.
Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:23-cv-00120-JPB)
Submitted: November 14, 2024 Decided: January 13, 2025
Before NIEMEYER, WYNN, and BENJAMIN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Paul Nicoletti, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 24-6012 Doc: 9 Filed: 01/13/2025 Pg: 2 of 5
PER CURIAM:
Paul Nicoletti appeals the district court’s orders accepting in part the
recommendation of the magistrate judge and dismissing with prejudice his 28 U.S.C.
§ 2241 petition and denying reconsideration. On appeal, Nicoletti challenges the district
court’s deference to the Bureau of Prison’s (BOP) calculation and application of Nicoletti’s
time credits under the First Step Act of 2018 (“FSA”), Pub. L. No. 115-391, §§ 101-107,
132 Stat. 5194, 5195-206. Specifically, Nicoletti contends that the district court erred in
relying on Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
865 (1984),* to defer to the BOP’s calculation of his time credits, and he asserts that the
BOP should have found him eligible for placement in home confinement on or around
January 22, 2024. For the following reasons, we vacate the district court’s orders and
remand for further proceedings consistent with this opinion.
A federal prisoner may challenge the execution of a sentence under § 2241,
Fontanez v. O’Brien, 807 F.3d 84, 86 (4th Cir. 2015), and we review the denial of relief de
novo, Castaneda v. Perry, 95 F.4th 750, 755 (4th Cir. 2024). The FSA allows eligible
inmates to earn “time credits” for participating in BOP recidivism reduction programming.
18 U.S.C. § 3632(d)(4)(A). According to the FSA, an inmate “earn[s] 10 days of [FSA]
time credits for every 30 days of successful participation in [this] programming. 18 U.S.C.
§ 3632(d)(4)(A)(i); see also 28 C.F.R. § 523.42(c)(1) (2024). However, an inmate can earn
* The Supreme Court subsequently overruled Chevron in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2273 (2024) (holding that a court “may not defer to an agency interpretation of the law simply because a statute is ambiguous”).
2 USCA4 Appeal: 24-6012 Doc: 9 Filed: 01/13/2025 Pg: 3 of 5
an extra five days of credit (that is, 15 days of time credit for every 30 days of successful
program participation), if the BOP has determined that the inmate presents a low recidivism
risk and the inmate maintains this “minimum or low risk for recidivating . . . over [two]
consecutive assessments.” 18 U.S.C. § 3632(d)(4)(A)(ii); see 28 C.F.R. § 523.42(c)(2)
(2024).
Under the FSA, an inmate’s earned time credits can “be applied toward time in
prerelease custody”—i.e., a residential reentry center (“RRC”) or home confinement
(“HC”)—“or supervised release.” 18 U.S.C. § 3632(d)(4)(C); see also 18 U.S.C.
§ 3624(g)(3) (authorizing BOP to apply earned time credits to commence supervised
release term up to 12 months earlier). However, the earned time credits can only be applied
toward supervised release or prerelease custody when an inmate has earned time credits
that equal the remainder of his sentence. 18 U.S.C. § 3624(g)(1)(A).
Based on this framework, we discern no error in the district court’s determination
that Nicoletti failed to identify an issue with his eligibility for RRC/HC placement,
particularly given that the FSA provides that the BOP may not apply an inmate’s time
credits toward early release or prerelease confinement until the number of credits equals
the remainder of the inmate’s term of imprisonment, and Nicoletti had failed to meet this
threshold at the time the district court issued its opinion. However, we agree with Nicoletti
that the district court erred in relying on Chevron to find that the BOP was entitled to
deference on its determination of the relevant risk and needs assessment periods.
Until recently, an agency’s interpretation of an ambiguous statute was entitled to
Chevron deference, but “such strong deference [was] limited to circumstances where
3 USCA4 Appeal: 24-6012 Doc: 9 Filed: 01/13/2025 Pg: 4 of 5
(1) Congress ha[d] given the agency authority to make rules carrying the force of law and
(2) the agency’s interpretation [was] rendered in the exercise of that authority.” Knox
Creek Coal Corp. v. Sec’y of Lab., Mine Safety & Health Admin., 811 F.3d 148, 158 (4th
Cir. 2016) (internal quotation marks omitted). Moreover, even prior to the Supreme
Court’s recent decision in Loper Bright, we have long held that BOP program statements
are not the type of agency interpretations that would have given rise to Chevron deference.
See Cunningham v. Scibana, 259 F.3d 303, 306 (4th Cir. 2001) (explaining that a “BOP[]
program statement is an internal agency guideline that has not been subjected to the rigors
of notice and comment rulemaking” and therefore is not entitled to Chevron deference).
Rather, an interpretation contained in a policy statement is entitled to deference under
Skidmore v. Swift & Co., 323 U.S. 134 (1944), “to the extent that it has the ‘power to
persuade.’” Knox Creek Coal Co., 811 F.3d at 160 (quoting Skidmore, 323 U.S. at 140).
The Supreme Court’s decision in Loper Bright does not appear to impact the framework
established in Skidmore. 144 S. Ct. at 2262-63; see id. at 2309 (Kagan, J., dissenting)
(“[T]he majority makes clear that what is usually called Skidmore deference continues to
apply. Under that decision, agency interpretations constitute a body of experience and
informed judgment that may be entitled to respect.” (cleaned up)).
Thus, “the weight that courts afford an agency’s interpretation depends upon the
thoroughness evident in the agency’s consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all those factors which give it
power to persuade.” Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, 982 F.3d
258, 264 (4th Cir.
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USCA4 Appeal: 24-6012 Doc: 9 Filed: 01/13/2025 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 24-6012
PAUL NICOLETTI,
Petitioner - Appellant,
v.
M. J. BAYLESS,
Respondent - Appellee.
Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:23-cv-00120-JPB)
Submitted: November 14, 2024 Decided: January 13, 2025
Before NIEMEYER, WYNN, and BENJAMIN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Paul Nicoletti, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 24-6012 Doc: 9 Filed: 01/13/2025 Pg: 2 of 5
PER CURIAM:
Paul Nicoletti appeals the district court’s orders accepting in part the
recommendation of the magistrate judge and dismissing with prejudice his 28 U.S.C.
§ 2241 petition and denying reconsideration. On appeal, Nicoletti challenges the district
court’s deference to the Bureau of Prison’s (BOP) calculation and application of Nicoletti’s
time credits under the First Step Act of 2018 (“FSA”), Pub. L. No. 115-391, §§ 101-107,
132 Stat. 5194, 5195-206. Specifically, Nicoletti contends that the district court erred in
relying on Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
865 (1984),* to defer to the BOP’s calculation of his time credits, and he asserts that the
BOP should have found him eligible for placement in home confinement on or around
January 22, 2024. For the following reasons, we vacate the district court’s orders and
remand for further proceedings consistent with this opinion.
A federal prisoner may challenge the execution of a sentence under § 2241,
Fontanez v. O’Brien, 807 F.3d 84, 86 (4th Cir. 2015), and we review the denial of relief de
novo, Castaneda v. Perry, 95 F.4th 750, 755 (4th Cir. 2024). The FSA allows eligible
inmates to earn “time credits” for participating in BOP recidivism reduction programming.
18 U.S.C. § 3632(d)(4)(A). According to the FSA, an inmate “earn[s] 10 days of [FSA]
time credits for every 30 days of successful participation in [this] programming. 18 U.S.C.
§ 3632(d)(4)(A)(i); see also 28 C.F.R. § 523.42(c)(1) (2024). However, an inmate can earn
* The Supreme Court subsequently overruled Chevron in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2273 (2024) (holding that a court “may not defer to an agency interpretation of the law simply because a statute is ambiguous”).
2 USCA4 Appeal: 24-6012 Doc: 9 Filed: 01/13/2025 Pg: 3 of 5
an extra five days of credit (that is, 15 days of time credit for every 30 days of successful
program participation), if the BOP has determined that the inmate presents a low recidivism
risk and the inmate maintains this “minimum or low risk for recidivating . . . over [two]
consecutive assessments.” 18 U.S.C. § 3632(d)(4)(A)(ii); see 28 C.F.R. § 523.42(c)(2)
(2024).
Under the FSA, an inmate’s earned time credits can “be applied toward time in
prerelease custody”—i.e., a residential reentry center (“RRC”) or home confinement
(“HC”)—“or supervised release.” 18 U.S.C. § 3632(d)(4)(C); see also 18 U.S.C.
§ 3624(g)(3) (authorizing BOP to apply earned time credits to commence supervised
release term up to 12 months earlier). However, the earned time credits can only be applied
toward supervised release or prerelease custody when an inmate has earned time credits
that equal the remainder of his sentence. 18 U.S.C. § 3624(g)(1)(A).
Based on this framework, we discern no error in the district court’s determination
that Nicoletti failed to identify an issue with his eligibility for RRC/HC placement,
particularly given that the FSA provides that the BOP may not apply an inmate’s time
credits toward early release or prerelease confinement until the number of credits equals
the remainder of the inmate’s term of imprisonment, and Nicoletti had failed to meet this
threshold at the time the district court issued its opinion. However, we agree with Nicoletti
that the district court erred in relying on Chevron to find that the BOP was entitled to
deference on its determination of the relevant risk and needs assessment periods.
Until recently, an agency’s interpretation of an ambiguous statute was entitled to
Chevron deference, but “such strong deference [was] limited to circumstances where
3 USCA4 Appeal: 24-6012 Doc: 9 Filed: 01/13/2025 Pg: 4 of 5
(1) Congress ha[d] given the agency authority to make rules carrying the force of law and
(2) the agency’s interpretation [was] rendered in the exercise of that authority.” Knox
Creek Coal Corp. v. Sec’y of Lab., Mine Safety & Health Admin., 811 F.3d 148, 158 (4th
Cir. 2016) (internal quotation marks omitted). Moreover, even prior to the Supreme
Court’s recent decision in Loper Bright, we have long held that BOP program statements
are not the type of agency interpretations that would have given rise to Chevron deference.
See Cunningham v. Scibana, 259 F.3d 303, 306 (4th Cir. 2001) (explaining that a “BOP[]
program statement is an internal agency guideline that has not been subjected to the rigors
of notice and comment rulemaking” and therefore is not entitled to Chevron deference).
Rather, an interpretation contained in a policy statement is entitled to deference under
Skidmore v. Swift & Co., 323 U.S. 134 (1944), “to the extent that it has the ‘power to
persuade.’” Knox Creek Coal Co., 811 F.3d at 160 (quoting Skidmore, 323 U.S. at 140).
The Supreme Court’s decision in Loper Bright does not appear to impact the framework
established in Skidmore. 144 S. Ct. at 2262-63; see id. at 2309 (Kagan, J., dissenting)
(“[T]he majority makes clear that what is usually called Skidmore deference continues to
apply. Under that decision, agency interpretations constitute a body of experience and
informed judgment that may be entitled to respect.” (cleaned up)).
Thus, “the weight that courts afford an agency’s interpretation depends upon the
thoroughness evident in the agency’s consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all those factors which give it
power to persuade.” Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, 982 F.3d
258, 264 (4th Cir. 2020) (cleaned up); see also Perez v. Cuccinelli, 949 F.3d 865, 877 (4th
4 USCA4 Appeal: 24-6012 Doc: 9 Filed: 01/13/2025 Pg: 5 of 5
Cir. 2020) (“Absent eligibility for Chevron deference, agency interpretations are only given
a level of respect commensurate with their persuasiveness.” (internal quotation marks
omitted)); Knox Creek Coal Co., 811 F.3d at 160 (listing factors). Other factors used to
assess a rule’s persuasiveness include “the degree of the agency’s care, its consistency,
formality, and relative expertness.” Carlton, 982 F.3d at 264-65 (internal quotation marks
omitted). The application of this “approach has produced a spectrum of judicial responses
from great respect at one end, to near indifference at the other.” United States v. Mead
Corp., 533 U.S. 218, 228 (2001) (citations omitted).
Here, the district court did not examine the persuasiveness of the BOP’s
interpretation of its rule under Skidmore or the extent to which that persuasiveness requires
deference. Accordingly, we vacate the court’s orders and remand to allow the court to
analyze the issue, “[r]ather than guess as to how much deference (if any) the district court
is inclined to give.” Carlton, 982 F.3d at 265. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materials before this court
and argument would not aid the decisional process.
VACATED AND REMANDED