IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30117
Summary Calendar
EDWARD G. ROBICHAUX, Petitioner-Appellant,
versus
WARDEN, FEDERAL DETENTION FACILITY, Respondent-Appellee.
Appeal from the United States District Court for the Western District of Louisiana (94-CV-1093)
(October 20, 1995)
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Edward G. Robichaux appeals from the United States District
Court's dismissal of his petition for writ of habeas corpus
seeking jail-time credit for time served in a half-way house
prior to the commencement of his term of imprisonment. We have
jurisdiction, 28 U.S.C. § 2241, and we now affirm.
I.
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. On February 6, 1992, Robichaux was convicted of three counts
of mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343,
2. The district court released Robichaux on unsecured bond on
the condition that he remain at a halfway house pending
sentencing. See 18 U.S.C. § 3142(c) (authorizing release subject
to conditions). The order of release specified that he was not
to leave the house unless he was accompanied by his attorney or
was in need of medical treatment. Robichaux willingly accepted
these conditions, signing the order of release.
On April 22, 1992, the district court sentenced Robichaux to
57 months imprisonment, such term to begin on June 12, 1992. The
court ordered Robichaux, in the interim, to remain at the half-
way house pursuant to the terms of the order of release. On June
11, 1992, Robichaux surrendered to federal authorities at the
Federal Corrections Institute at Talladega, Alabama.
Soon after commencing his imprisonment, Robichaux petitioned
prison officials for credit for the time he had spent at the
half-way house. The Bureau of Prisons denied his request.
Robichaux appealed to the Regional Director and subsequently to
the Administrator for National Inmate Appeals, both of whom
rejected his request.
On June 13, 1994, Robichaux filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241 in the Eastern
District of Louisiana. Robichaux claimed that the BOP's refusal
to credit the time he spent in the half-way house towards his
term of imprisonment violated 18 U.S.C. § 3585(b), which provides
2 that, in certain circumstances, "[a] defendant shall be given
credit toward the service of a term of imprisonment for any time
he has spent in official detention prior to the date the sentence
commences." In addition, Robichaux argued that the BOP's refusal
to grant him credit for time served in the half-way house
violated the equal protection component of the Due Process Clause
of the Fifth Amendment to the United States Constitution since
other residents of the half-way house who had already begun
serving their prison sentences received such credit.
The petition was referred to a magistrate judge, who
recommended dismissal of the petition. The magistrate judge
concluded that Robichaux's confinement in the half-way house did
not constitute "official detention" since that term does not
include time spent under restrictive conditions imposed as part
of an order of release. The magistrate judge also rejected
Robichaux's equal protection argument, concluding that Robichaux
was not similarly situated to postsentence residents who were
confined under similar restrictions at the half-way house but who
received credit for time spent there. The district court adopted
the magistrate judge's recommendation and dismissed Robichaux's
petition. Robichaux timely appealed.
II.
Robichaux first claims that he is entitled under 18 U.S.C.
§ 3585(b) to receive credit for the time he spent in the halfway
house prior to the beginning of his imprisonment. We disagree.
After the district court rendered its decision, the United States
3 Supreme Court held in Reno v. Koray, 115 S.Ct. 2021, 132 L.Ed.2d
46 (1995), that time spent in a halfway house prior to the
commencement of a federal prison sentence is not "official
detention" entitling the detainee for credit for time served
there. In Koray, the petitioner, like Robichaux, sought jail-
time credit for time spent at a halfway house after conviction
but prior to commencement of the federal sentence. We see no
difference between this case and Koray, and we reject Robichaux's
claim accordingly. See also Pinedo v. United States, 955 F.2d
12, 14 (5th Cir. 1992) (rejecting similar claim under 18 U.S.C.
§ 3585(b)).
Robichaux next contends that BOP's refusal to credit the
time served at the halfway house against his term of imprisonment
violates his equal protection rights. Once again, we disagree.
Because neither a suspect classification nor a fundamental right
is involved, we review the BOP's decision under the rational
basis test. City of Cleburne v. Cleburne Living Ctr., Inc., 473
U.S. 432, 440-42, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). To
prevail, Robichaux must demonstrate both that he is similarly
situated to postsentence halfway house residents who receive
credit for time spent at the house, and, if so, that there is no
rational basis for withholding credit from Robichaux while
granting it to postsentence residents. Id.; Dawson v. Scott, 50
F.3d 884, 892 (11th Cir. 1995).
Robichaux fails to demonstrate that he is similarly situated
to residents who are given jail-time credit for the time they
4 spent at the halfway house. Even if presentence and postsentence
residents of a halfway house live under similar restrictions,
"their divergent legal status negates the possibility that they
are similarly situated." United States v. Woods, 888 F.2d 653,
656 (10th Cir. 1989), cert. denied, 494 U.S. 1006, 110 S.Ct.
1301, 108 L.Ed.2d 478 (1990); see also Rodriguez v. Lamer, 60
F.3d 745, 749 (11th Cir. 1995); Fraley v. United States Bureau of
Prisons, 1 F.3d 924, 926 (9th Cir. 1993).
During their time at the halfway house, postsentence
residents remain in the custody of the Attorney General. Koray,
115 S.Ct. at 2028. Postsentence residents "are subject to BOP's
disciplinary procedures; they are subject to summary reassignment
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30117
Summary Calendar
EDWARD G. ROBICHAUX, Petitioner-Appellant,
versus
WARDEN, FEDERAL DETENTION FACILITY, Respondent-Appellee.
Appeal from the United States District Court for the Western District of Louisiana (94-CV-1093)
(October 20, 1995)
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Edward G. Robichaux appeals from the United States District
Court's dismissal of his petition for writ of habeas corpus
seeking jail-time credit for time served in a half-way house
prior to the commencement of his term of imprisonment. We have
jurisdiction, 28 U.S.C. § 2241, and we now affirm.
I.
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. On February 6, 1992, Robichaux was convicted of three counts
of mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343,
2. The district court released Robichaux on unsecured bond on
the condition that he remain at a halfway house pending
sentencing. See 18 U.S.C. § 3142(c) (authorizing release subject
to conditions). The order of release specified that he was not
to leave the house unless he was accompanied by his attorney or
was in need of medical treatment. Robichaux willingly accepted
these conditions, signing the order of release.
On April 22, 1992, the district court sentenced Robichaux to
57 months imprisonment, such term to begin on June 12, 1992. The
court ordered Robichaux, in the interim, to remain at the half-
way house pursuant to the terms of the order of release. On June
11, 1992, Robichaux surrendered to federal authorities at the
Federal Corrections Institute at Talladega, Alabama.
Soon after commencing his imprisonment, Robichaux petitioned
prison officials for credit for the time he had spent at the
half-way house. The Bureau of Prisons denied his request.
Robichaux appealed to the Regional Director and subsequently to
the Administrator for National Inmate Appeals, both of whom
rejected his request.
On June 13, 1994, Robichaux filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241 in the Eastern
District of Louisiana. Robichaux claimed that the BOP's refusal
to credit the time he spent in the half-way house towards his
term of imprisonment violated 18 U.S.C. § 3585(b), which provides
2 that, in certain circumstances, "[a] defendant shall be given
credit toward the service of a term of imprisonment for any time
he has spent in official detention prior to the date the sentence
commences." In addition, Robichaux argued that the BOP's refusal
to grant him credit for time served in the half-way house
violated the equal protection component of the Due Process Clause
of the Fifth Amendment to the United States Constitution since
other residents of the half-way house who had already begun
serving their prison sentences received such credit.
The petition was referred to a magistrate judge, who
recommended dismissal of the petition. The magistrate judge
concluded that Robichaux's confinement in the half-way house did
not constitute "official detention" since that term does not
include time spent under restrictive conditions imposed as part
of an order of release. The magistrate judge also rejected
Robichaux's equal protection argument, concluding that Robichaux
was not similarly situated to postsentence residents who were
confined under similar restrictions at the half-way house but who
received credit for time spent there. The district court adopted
the magistrate judge's recommendation and dismissed Robichaux's
petition. Robichaux timely appealed.
II.
Robichaux first claims that he is entitled under 18 U.S.C.
§ 3585(b) to receive credit for the time he spent in the halfway
house prior to the beginning of his imprisonment. We disagree.
After the district court rendered its decision, the United States
3 Supreme Court held in Reno v. Koray, 115 S.Ct. 2021, 132 L.Ed.2d
46 (1995), that time spent in a halfway house prior to the
commencement of a federal prison sentence is not "official
detention" entitling the detainee for credit for time served
there. In Koray, the petitioner, like Robichaux, sought jail-
time credit for time spent at a halfway house after conviction
but prior to commencement of the federal sentence. We see no
difference between this case and Koray, and we reject Robichaux's
claim accordingly. See also Pinedo v. United States, 955 F.2d
12, 14 (5th Cir. 1992) (rejecting similar claim under 18 U.S.C.
§ 3585(b)).
Robichaux next contends that BOP's refusal to credit the
time served at the halfway house against his term of imprisonment
violates his equal protection rights. Once again, we disagree.
Because neither a suspect classification nor a fundamental right
is involved, we review the BOP's decision under the rational
basis test. City of Cleburne v. Cleburne Living Ctr., Inc., 473
U.S. 432, 440-42, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). To
prevail, Robichaux must demonstrate both that he is similarly
situated to postsentence halfway house residents who receive
credit for time spent at the house, and, if so, that there is no
rational basis for withholding credit from Robichaux while
granting it to postsentence residents. Id.; Dawson v. Scott, 50
F.3d 884, 892 (11th Cir. 1995).
Robichaux fails to demonstrate that he is similarly situated
to residents who are given jail-time credit for the time they
4 spent at the halfway house. Even if presentence and postsentence
residents of a halfway house live under similar restrictions,
"their divergent legal status negates the possibility that they
are similarly situated." United States v. Woods, 888 F.2d 653,
656 (10th Cir. 1989), cert. denied, 494 U.S. 1006, 110 S.Ct.
1301, 108 L.Ed.2d 478 (1990); see also Rodriguez v. Lamer, 60
F.3d 745, 749 (11th Cir. 1995); Fraley v. United States Bureau of
Prisons, 1 F.3d 924, 926 (9th Cir. 1993).
During their time at the halfway house, postsentence
residents remain in the custody of the Attorney General. Koray,
115 S.Ct. at 2028. Postsentence residents "are subject to BOP's
disciplinary procedures; they are subject to summary reassignment
to any other penal or correctional facility within the system;
and, being in the legal custody of BOP, the Bureau has full
discretion to control many conditions of their confinement." Id.
(citation omitted); Woods, 888 F.2d at 656. Moreover, if they
attempt to leave, they may be prosecuted for escape. See 18
U.S.C. § 751(a); Dawson, 50 F.3d at 893.
In contrast, presentence residents at the halfway house,
such as Robichaux, are in the custody of the proprietors of the
halfway house, not in the custody of the Attorney General.
Moreland v. United States, 968 F.2d 655, 659-60 (8th Cir.), cert.
denied, 113 S.Ct. 675, 121 L.Ed.2d 598 (1992). The court, not
the Attorney General, is responsible for disciplining presentence
residents who violate the terms of their confinement. The
sanctions that the court may impose, which include revoking the
5 release order, issuing a detention order, and holding the
presentence resident in contempt of court, differ from BOP
disciplinary measures for unruly postsentence residents. See 18
U.S.C. § 3148(a); Dawson, 50 F.3d 893 & n.23. In addition,
presentence residents who leave the halfway house cannot be
prosecuted for escape since they are not in the custody of the
Attorney General. See United States v. Baxley, 982 F.2d 1265,
1270 (9th Cir. 1992). In short, while Robichaux was required to
obey many of the same rules, his legal status at the house
differed from that of the postsentence residents, and "it is not
the type of detention, but the respective difference in legal
status that is dispositive" in determining whether Robichaux was
similarly situated to postsentence residents. Dawson, 50 F.3d at
895.
Robichaux responds that the Eleventh Circuit in Johnson v.
Smith, 696 F.2d 1334 (11th Cir. 1983), held that presentence
residents were similarly situated to postsentence residents and
that, therefore, the BOP's decision not to award presentence
residents jail-time credit for the time they spent at a halfway
house violated their equal protection rights. The Eleventh
Circuit, however, has subsequently limited Johnson to its facts.
See Dawson, 50 F.3d at 892 n.20. Unlike here, "[i]n Johnson, the
government failed to differentiate presentence defendants and
postsentence convicts in the district court, gave no reason why
postsentence defendants were credited while presentence
defendants were not, and conceded that they actually were
6 similarly situated." Id. Indeed, the Eleventh Circuit in Dawson
retreated from its holding in Johnson and rejected an equal
protection argument identical to Robichaux's.
We hold that presentence residents held in a halfway house
pursuant to a release order are not similarly situated to
postsentence residents and, therefore, the BOP did not violate
Robichaux's equal protection rights by failing to award him jail-
time credit for the time he spent at the halfway house.
III.
Neither 18 U.S.C. § 3585(b) nor equal protection require the
BOP to grant Robichaux credit for the time he spent at the
halfway house prior to the commencement of his federal prison
sentence. We AFFIRM the district court's dismissal of
Robichaux's petition.1
1 Robichaux also claims that he should have been notified at the time he signed the release order that he would not be given credit for time served at the halfway house. Because this contention is raised for the first time on appeal, we do not reach it.