The Tenth Circuit published its opinion in Al-Marri v. Davis on Wednesday, April 24, 2013.

On December 12, 2001, the FBI arrested Ali Saleh Kahlah al-Marri as a material witness to the September 11, 2001 terrorist attacks against the United States.

President George W. Bush later declared Mr. al-Marri to be an enemy combatant. He was transferred to a Naval Brig where he was detained for almost six years. Mr. al-Marri was eventually transferred to civilian custody, where a federal grand jury indicted him on two counts of providing material support or resources to a designated foreign terrorist organization (al-Qaeda). On April 30, 2009, Mr. al-Marri pled guilty to one count of providing material support or resources to a designated foreign terrorist organization.

Prior to sentencing, the Bureau of Prisons (BOP) indicated that under 18 U.S.C. § 3585(b), it would only grant prior custody credit for the time Mr. al-Marri spent in pretrial criminal detention after he was transferred to civilian custody. BOP was unwilling to credit Mr. al-Marri for the 71 months he was held as a material witness and an enemy combatant.

Taking into account the BOP’s indication that it would deny Mr. al-Marri credit for the 71 months, the sentencing court reduced the period of confinement (180 months) by 71 months to reflect the periods of time for which he would not be credited by the BOP. The court further reduced the sentence by nine months to reflect the severe conditions at the Naval Brig.

After sentencing, pursuant to 18 U.S.C. § 3624(b)(1), the BOP credited Mr. al-Marri for both periods spent in pretrial criminal detention (totaling 745 days), but refused to grant prior custody credit for the 71 months during which he was held as an enemy combatant.

Mr. al-Marri filed a § 2241 petition in the district court seeking a statutory calculation of GCT for the 71 months he was detained or, in the alternative, a calculation as an equitable remedy for his allegedly unconstitutional detention. The district court denied the petition. Mr. al-Marri appealed.

On appeal, Mr. al-Marri contended he was entitled to Good Conduct Time (GCT) for the 71 months he was held as an enemy combatant, either statutorily under 18 U.S.C. § 3624(b), or as an equitable remedy.

Statutory Entitlement to Good Time Credit

This argument is foreclosed by the Supreme Court’s decision in United States v. Wilson, 503 U.S. 329 (1992). Wilson held that a sentencing court does not have authority to grant prior custody credit under § 3585. Instead, that authority is vested with the Attorney General, acting through the BOP.

Mr. al-Marri was detained because the President declared him to be an enemy combatant; he was not detained for an alleged violation of the federal criminal code. Similarly, Mr. al-Marri was held as a material witness—not as punishment for providing material support to a terrorist organization. The purpose of his detention was preventative rather than punitive. In short, the Court reasoned, Mr. al-Marri’s 71-month detention as an enemy combatant did not constitute “prior custody” as required by § 3585(b), and he was therefore ineligible for Good Conduct Time.

Next, Mr. al-Marri argued that if the 71-month sentencing reduction did not constitute “prior custody” under § 3585(b), the period should still be awarded because it is ‘time served’ and therefore part of the ‘term of imprisonment’ within the meaning of the GCT. The Tenth Circuit held that the Bureau of Prison’s calculation of Good Conduct Time for Mr. al-Marri comported with the most natural reading of the statute—that it applies only to time served under the actual sentence. The Court therefore deferred to the BOP’s interpretation.

Good Time Credit as an Equitable Remedy

The Tenth Circuit held the district court did not abuse its discretion in declining to reconsider Mr. al-Marri’s argument that the BOP’s refusal to calculate GCT for his unlawful detention entitled him to equitable relief.

AFFIRMED.