Dawson v. Scott

¶5BIRCH, Circuit Judge:

¶6This habeas case presents the first-impression issue for our circuit of whether sentence credit is applicable for time spent in a halfway or safe house as a condition of release on bond before adjudication of guilt or sentencing, or after sentencing prior to surrender to the custody of the Attorney General. The district court determined that denial of sentence credit for this time was the proper statutory and constitutional interpretation. We AFFIRM.

¶7I. BACKGROUND

¶8On May 1, 1990, petitioner-appellant John F. Dawson was arrested by New Mexico federal agents for cocaine distribution. When Dawson was arrested, the government filed a forfeiture action against his residence and seized it. Following a detention hearing on May 3, 1990, Dawson was released on a personal recognizance bond. That same day, however, the bond was revoked upon a finding that Dawson was ineligible for bond because he had no home to which he could be released. Dawson was returned to custody. On May 4, 1990, Dawson was released on bond with the condition that he be placed in La Posada Halfway House in Abuquerque, New Mexico.

¶9Dawson resided at this halfway house for 104 days. During his time there, it is undisputed that he was subjected to the same conditions as other residents, including convicts serving their sentences there. While these conditions, such as random urinanalysis samples, searches of person and property, and no alcohol, sexual activity, or entry into other resident rooms, were mandatory, residents were confined to the premises of the halfway house from 7:00 P.M. until 7:00 A.M. only. During the daytime, they were either working in outside employment or seeking employment.

¶10Dawson pled guilty to one count of violating 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) on August 15, 1990. Because of safety concerns resulting from Dawson’s agreement to cooperate with the government, the court amended Dawson’s presentence condition of release and transferred him from the halfway house to a “safe house.”1 Dawson remained in the *886safe house for 384 days, including time after he was sentenced and prior to his required surrender to the custody of the Attorney General.

¶11On December 11, 1990, Dawson was sentenced to forty-one months in the custody of the Attorney General and three years of supervised release. Initially, Dawson was to surrender voluntarily on January 15, 1991. His surrender date subsequently was extended until September 4, 1991, to permit Dawson to continue assisting the government. Consequently, the government recommended a downward departure in Dawson’s sentence. Dawson did not file a direct appeal. In September, 1991, Dawson began to serve his term of incarceration, and the district court reduced his sentence to twenty-four months. Although he initially surrendered to the Bureau of Prisons (“BOP”) at the Federal Prison Camp (“FPC”), El Paso, Texas, the BOP transferred Dawson to FPC, Talladega, Alabama.

¶12The BOP credited Dawson for the days that he was imprisoned prior to his release to the halfway house before his plea. After exhausting his BOP administrative remedies, Dawson filed a pro se habeas corpus petition pursuant to 28 U.S.C. § 2241 in the Northern District of Alabama on May 20, 1992. He sought credit against his sentence for the time that he spent in halfway and safe houses, totaling 488 days. Dawson argued that this time constituted “official detention”, within the meaning of 18 U.S.C. § 3585(b), that should be credited against his sentence.

¶13A magistrate judge recommended that his petition be denied, and the district court adopted that recommendation. This appeal ensued. Dawson has completed his term of incarceration; he currently resides in Birmingham, Alabama, and is serving his period of supervised release.2

¶14II. DISCUSSION

¶15A. Statutory Interpretation

¶16“The judiciary is the final authority on issues of statutory construction,” Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 2781 n. 9, 81 L.Ed.2d 694 (1984); “[w]e review a district court’s interpretation and application of a statute de novo,” F.D.I.C. v. S & I 85-1, Ltd., 22 F.3d 1070, 1071 (11th Cir.1994). See James v. United States, 19 F.3d 1, 2 (11th Cir.1994) (per curiam) (holding that whether a statute affects sentencing is a “question of law subject to de novo review”). To interpret a statute administered by an agency, the Chevron court established “a two-step process.” Jaramillo v. I.N.S., 1 F.3d 1149, 1152 (11th Cir.1993) (en banc). First, if congressional purpose is clear, then interpreting courts and administrative agencies “must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781.

¶17A second level of review, however, is triggered when “the statute is silent or ambiguous with respect to the specific issue.” Id. at 843, 104 S.Ct. at 2782. Where an administrating agency has interpreted the statute, a reviewing court is bound by the Chevron *887“rule of deference.” Jaramillo, 1 F.3d at 1152. “[A] court may not substitute its own construction of a statutory provision for a reasonable interpretation” by an administrating agency. Chevron, 467 U.S. at 844, 104 S.Ct. at 2782. Agency interpretation is reasonable and controlling unless it is “arbitrary, capricious, or manifestly contrary to the statute.” Id.; Alabama Power Co. v. Federal Energy Regulatory Comm’n, 22 F.3d 270, 272 (11th Cir.1994). Thus, “we defer to an agency’s reasonable interpretation of a statute it is charged with administering.” Bigby v. United States I.N.S., 21 F.3d 1059, 1063 (11th Cir.1994). This direction governs our analysis of this case.

¶18Dawson argues that the 488 cumulative days that he spent in a halfway house and a safe house were “official detention” under 18 U.S.C. § 3585(b), and that this time should be credited against his subsequent sentence. Section 3585(b) provides:

Credit for prior custody. 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—

(1) as a result of the offense for which the sentence was imposed; or

(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;

that has not been credited against another sentence.

¶1918 U.S.C. § 3585(b) (emphasis added). Thus, we must determine the statutory meaning of “official detention” in section 3585(b) to decide whether Dawson is entitled to sentence credit for the time that he spent in halfway and safe houses.

¶20The predecessor statute to section 3585(b) provided that “[t]he Attorney General shall give any ... person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.” 18 U.S.C. § 35683 (emphasis added). Although the language differs in section 3568 and present section 3585(b), the majority of circuits that have considered the issue have determined that “the term ‘custody’ under § 3568 has the same meaning as the phrase ‘official detention’ under § 3585.”4Moreland v. United States, 968 F.2d 655, 658 n. 6 (8th Cir.) (en banc) (plurality opinion),5cert. denied, — *888U.S. -, 113 S.Ct. 675, 121 L.Ed.2d 598 (1992); accord Koray v. Sizer, 21 F.3d 558, 563 (3d Cir.1994), cert. granted, — U.S. -, 115 S.Ct. 787, 130 L.Ed.2d 779 (1995); Mills v. Taylor, 967 F.2d 1397, 1400 (9th Cir.1992); United States v. Edwards, 960 F.2d 278, 283 (2d Cir.1992); Pinedo v. United States, 955 F.2d 12, 13-14 (5th Cir.1992) (per curiam); United States v. Becak, 954 F.2d 386, 387-88 (6th Cir.), cert. denied, — U.S. -, 112 S.Ct. 2286, 119 L.Ed.2d 211 (1992); United States v. Insley, 927 F.2d 185, 186 (4th Cir.1991); United States v. Woods, 888 F.2d 653, 655 (10th Cir.1989), cert. denied, 494 U.S. 1006, 110 S.Ct. 1301, 108 L.Ed.2d 478 (1990); see United States v. Zackular, 945 F.2d 423, 424-25 (1st Cir.1991) (limiting holding to the determination that home confinement was not “official detention,” while noting that most circuits have determined that “official detention” is comparable to “custody”).

¶21Interpreting section 3568, the Former Fifth Circuit held that “custody” is “characterized by incarceration,” and that credit against a federal sentence does not accrue “until the prisoner is received at the place of imprisonment.”6Polakoff v. United States, 489 F.2d 727, 730 (5th Cir.1974). The Former Fifth Circuit also determined that a presentenee convict’s time on a “highly restricted bond” was not “custody” under section 3568 because it was not incarceration. Id. at 728, 730; see United States v. Mares, 868 F.2d 151, 152 (5th Cir.1989) (per curiam) (construing section 3568, the Fifth Circuit specifically excluded pretrial release on bail, time spent on bail pending appeal, and time spent on parole or probation, if revoked, from the definition of “custody”). This interpretation is augmented by the Ninth Circuit’s conclusion that a pretrial defendant who absconded from a halfway house to which he had been released on a personal recognizance bond could not be prosecuted under 18 U.S.C. § 751(a) for escape because he was not legally in custody. United States v. Baxley, 982 F.2d 1265, 1268-70 (9th Cir.1992).

¶22Dawson was confined to the premises of the halfway house at night only. During the day, he was to work at a job or to seek employment. Such liberty is markedly different from custodial incarceration in a penitentiary.7See United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990) (holding that confinement “subject to a defendant’s being released to go to work, cannot possibly be equated with an equivalent period of imprisonment”). Thus, we have joined other circuits that have determined that custody or official detention time is not credited toward a sentence until the convict is imprisoned, and that release stipulations or imposed conditions that do not subject a person to full physical incarceration do not qualify as official detention.8*889Spinola v. United States, 941 F.2d 1528, 1529 (11th Cir.1991) (per curiam) (interpreting section 3568); see United States v. Cleto, 956 F.2d 83, 84-85 (5th Cir.1992) (per curiam); Insley, 927 F.2d at 186; United States v. Freeman, 922 F.2d 1393, 1397 (9th Cir.1991); Mieles v. United States, 895 F.2d 887, 888 (2d Cir.1990); Woods, 888 F.2d at 655; Ramsey v. Brennan, 878 F.2d 995, 996 (7th Cir.1989); United States v. Figueroa, 828 F.2d 70, 70-71 (1st Cir.1987) (per curiam); Villaume v. United States Dep’t of Justice, 804 F.2d 498, 499 (8th Cir.1986) (per curiam), cert. denied, 481 U.S. 1022, 107 S.Ct. 1908, 95 L.Ed.2d 514 (1987); United States v. Golden, 795 F.2d 19, 21 (3d Cir.1986); United States v. Peterson, 507 F.2d 1191, 1192-93 (D.C.Cir.1974) (per curiam).

¶23Interpreting 18 U.S.C. § 3585(b), the Supreme Court held that the Attorney General through the BOP, and not district courts, is authorized to compute sentence credit awards after sentencing. United States v. Wilson, 503 U.S. 329, 333-35, 112 S.Ct. 1351, 1354, 117 L.Ed.2d 593 (1992); see United States v. Lucas, 898 F.2d 1554, 1555-56 (11th Cir.1990) (per curiam) (concluding from the legislative history for section 3585(b) that Congress intended for the Attorney General to have initial discretion to credit a defendant’s time in custody prior to sentencing and that this determination has been delegated to the BOP pursuant to 28 C.F.R. § 0.96); accord United States v. Herrera, 931 F.2d 761, 763-64 (11th Cir.1991), cert. denied, 503 U.S. 972, 112 S.Ct. 1588, 118 L.Ed.2d 306 (1992). To the extent that there is ambiguity in the congressional intent in section 3585(b), the United States Department of Justice through the BOP, which administers or implements, including credits, imposed sentences,9 has resolved this ambiguity in its following Program Statement on sentence computation issued by the Justice Department and applicable when Dawson was sentenced:

Time spent in residence in a residential community center (or a community based program located in a Metropolitan Correctional Center or jail) ... as a condition of bail or bond ... is not creditable as jail time since the degree of restraint provided by residence in a community center is not sufficient restraint to constitute custody within the meaning or intent of 18 USC 3568. Also, a “highly restrictive” condition of bail or bond, such as requiring the defendant to report daily to the U.S. Marshal, is not considered as time in custody. However, time spent in a jail-type facility (not including a community based program located in a Metropolitan Correctional Center or jail) as a condition of bail or bond is creditable as jañ time because of the greater degree of restraint.

¶24Federal BOP, Program Statement No. 5880.24(5)(b)(5) (Sept. 5, 1979) (interpreting section 3568).10 The Seventh Circuit con-*890eluded that determining whether confinement in a halfway house is sufficiently like prison to be treated as such for sentence credit “is not a question susceptible of rational determination, at least by tools of inquiry available to judges. It is a matter of judgment, or policy, or discretion, and we are fortunate in having a policy statement by the Bureau of Prisons which opines unequivocally” that it is not. Ramsey, 878 F.2d at 996.

¶25Thus, at the time pertinent to Dawson’s sentence, the BOP, as the administrating agency, specifically had determined that release on bail or bond, despite the conditions, was not creditable toward a sentence, but that incarceration time was creditable. At the first appearance of a criminal defendant before a judicial officer after arrest, the defendant is either detained11 or released, with or without conditions.1218 U.S.C. § 3142(a). Dawson’s case exemplifies both possibilities and the resulting sentence credit consequences. When he was arrested, Dawson was officially imprisoned or detained, for which he received credit against his sentence. Subsequently, he was released on bond to a halfway house and, later, to a safe house, for which he alleges that he improperly did not receive sentence credit. The fact that Dawson did not have a home to which he could be released on bond and, thus, had to reside in a halfway house is inconsequential with regard to sentence credit. “[C]onfinement to the comfort of one’s own home is not the functional equivalent of incarceration in either a practical or a psychological sense.” Zackular, 945 F.2d at 425. For confinement purposes, a federal criminal defendant may be in one of two states: released or detained.13 It *891is Dawson’s release status during the time that he was in halfway and safe houses, rather than official detention, that is determi-natives to sentence credit.

¶26Because the BOP’s construction is “permissible,” “reasonable,” and not an “arbitrary, capricious, or manifestly contrary” statutory interpretation, we must defer to it.14Chevron, 467 U.S. at 843, 844, 104 S.Ct. at 2782; Jaramillo, 1 F.3d at 1152-53.15 “When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail.”16Chevron, 467 U.S. at 866, 104 S.Ct. at 2793. Additionally, other circuits have concluded specifically that presentenee time spent in a halfway house does not constitute “official detention” and is not creditable toward a subsequently imposed sentence. Moreland, 968 F.2d at 657-60; Ramsey, 878 F.2d at 996-97; Woods, 888 F.2d at 656. But see Brown v. Rison, 895 F.2d 533, 536 (9th Cir.1990) (concluding under section 3568 that residence in a treatment center as a condition of pretrial release imposed restrictions “too close to incarceration” not to be credited against a sentence).17 Because Dawson was in release status when he was in the halfway and safe houses and not incarcerated, and because the BOP has determined that time spent in a release state does not qualify as time served in official detention, we hold that this release time is not creditable toward his imposed sentence.18

¶27B. Equal Protection

¶28Because he was subjected to the same liberty restrictions in the halfway house19 as *892convicts, who were serving their sentences there and receiving sentence credit, Dawson also contends that denying him sentence credit for his tenure violates equal protection. Accordingly, we must decide whether providing sentence credit to a convict serving his sentence in a halfway house and denying such credit to a defendant before adjudication of guilt or sentencing infringes equal protection. Under Wilson and Chevron, we recognize that the Attorney General through the BOP, determines presentence credit, and not the courts. We review solely the constitutional consequences or effect of placing defendants prior to adjudication of guilt and sentencing and postsentence convicts serving their sentences in a halfway house under identical conditions and giving only the post-sentence convicts sentence credit.

¶29Because neither a suspect nor a quasi-suspect class is involved, we review this governmental decision for a rational basis. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 44-42, 105 S.Ct. 3249, 3254-55, 87 L.Ed.2d 313 (1985); see 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) (holding that a rational basis analysis is applicable to equal protection claims of presentence defendants residing in a halfway house). Under this review standard, Dawson prevails only if (1) persons similarly situated are treated differently by the government, and (2) the government fails to provide a rational basis for the dissimilar treatment. Cleburne, 473 U.S. at 439-42, 105 S.Ct. at 3254-55. Consequently, if the two groups are not similarly situated, then we need not proceed with the constitutional analysis because “there is no equal protection violation.” Woods, 888 F.2d at 656. Our first inquiry, therefore, is to determine whether pretrial, presentence defendants and postsentence convicts are similarly situated.20

¶30*893Even if pretrial, presentence defendants and postsentence convicts are treated equally 21 while residing in a halfway house, “as a matter of law ... their divergent legal status negates the possibility that they are similarly situated.” Id.; accord Moreland v. United States, 968 F.2d 655, 660-61 (8th Cir.) (en banc) (plurality opinion), cert. denied, — U.S. -, 113 S.Ct. 675, 121 L.Ed.2d 598 (1992). Significantly, postsentence halfway house residents have been adjudicated guilty. They are serving their sentence at a minimally secure halfway house pursuant to the Attorney General’s discretion to determine the conditions of punishment.22 Consequently, postsentence convicts who escape or attempt to escape from a halfway house are subject to criminal prosecution, 18 U.S.C. § 751(a),23 or punishment by the BOP. See *894United States v. Baxley, 982 F.2d 1265, 1269 & n. 8 (9th Cir.1992) (distinguishing between pretrial release to a halfway house on a personal recognizance bond and post-incarceration residence in a halfway house as to prosecution for escape).

¶31Importantly, postsentence convicts serving part of their sentence in a halfway house are “not given credit for time served in the same sense in which [Dawson] is seeking credit.” Ramsey v. Brennan, 878 F.2d 995, 997 (7th Cir.1989). The time spent in a halfway house is credited for postsentence convicts because it is part of such convicted criminals’ sentence. Further, placement in a halfway house serves a particular purpose for post-sentence convicts, who are in a “twilight zone between prison and freedom.” Id. at 996. The BOP has determined that they are capable of residing in minimally secure confinement, and that work release in this environment “faeilitate[s] the re-entry of convicts into society by making the last stage of their confinement transitional — hence the apt name ‘halfway house.’ ” Id. at 997.

¶32In contrast, Dawson’s confinement in a halfway house was before his plea or adjudication of guilt and subsequent sentence.24 “A presentence defendant is under the custody of the proprietors of the halfway house” to whom he has been conditionally released “to impose the least restrictive conditions possible upon the defendant’s liberty.” Moreland, 968 F.2d at 660; see Randall v. Whelan, 938 F.2d 522, 525 (4th Cir.1991) (“There exists a strong presumption that ‘custody’ refers to the legal authority of the custodian rather than to actual housing conditions.”). Significantly, Dawson’s conditional release was not for a punitive purpose. See United States v. Edwards, 960 F.2d 278, 284 (2d Cir.1992) (“[R]elease on conditions of bail is not pursuant to a conviction and, indeed, is not punishment_”). Prior to adjudication of guilt, “the judicial officer must maintain the presumption of innocence” in determining the conditions of release. Moreland, 968 F.2d at 660 n. 9; 18 U.S.C. § 3142(j). Thus, Dawson was placed in a halfway house “to protect the community and assure [his] presence at trial and sentencing.” Woods, 888 F.2d at 656; 18 U.S.C. § 3142(c); see Cohen v. United States, 82 S.Ct. 526, 528, 7 L.Ed.2d 518 (1962) (“The purpose of a bail bond is to insure that the accused will reappear at a given time by requiring another to assume personal responsibility for him_”). While confinement in a halfway house has a transitional or rehabilitative purpose for a postsentence convict, that objective does not apply to a pretrial or presentence defendant “moving in the opposite direction.” Ramsey, 878 F.2d at 997.

¶33*895Accordingly, Dawson’s comparison of his halfway house residence as a pretrial, pre-sentence defendant with postsentence convicts as to sentence credit is inapposite. The appropriate similarly situated comparison would be to other pretrial or presentence halfway house residents. See Woods, 888 F.2d at 656; see also Edwards, 960 F.2d at 284 (excluding a presentence defendant from the “class” of postsentence convicts; a pre-sentence defendant “is not similarly situated to convicted persons who are eligible for home detention”). We hold that pretrial, presentence defendants and postsentence convicts are not similarly situated because they were placed in the halfway house “under significantly different legal conditions.”25Moreland, 968 F.2d at 661.

¶34While pretrial, presentenee defendants and postsentence convicts may be in the same halfway house and subjected to identical conditions, we conclude that they are not similarly situated legally because their residence in a halfway house serves a fundamentally and functionally different purpose. Thus, it is not the type of detention, but the respective difference in legal status that is disposi-tive. The consequent divergent sentence credit treatment results directly from the different legal status occupied by pretrial, presentence defendants and postsentence convicts. Therefore, the BOP does not violate equal protection in according sentence credit to postsentenee convicts, but not to pretrial or presentence defendants. See Fraley v. United States Bureau of Prisons, 1 F.3d 924, 926 (9th Cir.1993) (holding that a presentence defendant is not similarly situated with a postsentence convict and denial of sentence credit does not violate equal protection).

¶35III. CONCLUSION

¶36Dawson has challenged the failure of the BOP to credit his sentence with time that he spent on conditional release in halfway and safe houses as a misapplication of section 3585(b) and a violation of equal protection. As we have analyzed, the determination of sentence credit is solely within the discretion of the BOP and not the judiciary. Because Dawson, as a pretrial, presentence defendant residing in a halfway house, is not similarly situated with postsentence convicts, the BOP does not violate equal protection by not cred*896iting his halfway house tenure against his sentence while crediting the sentences of postsentence convicts. Accordingly, we AFFIRM.

¶77CONWAY, District Judge,

¶78dissenting:

¶79I. HALFWAY HOUSE

¶80I dissent from the majority’s conclusion that Dawson is not entitled to sentence credit for his 104-day stay at the halfway house. The Bureau of Prisons’ refusal to credit Dawson’s sentence for that period of confinement violated 18 U.S.C. § 3585(b)(1) and denied Dawson equal protection. In my view, Judge Heaney’s dissent in Moreland v. U.S., 968 F.2d 655, 663-67 (8th Cir.) (Heaney, J., dissenting), cert. denied, — U.S. -, 113 S.Ct. 675, 121 L.Ed.2d 598 (1992), provides the proper analytical framework for resolution of this issue.

¶81A. “Official Detention"

¶82As it appears in 18 U.S.C. § 3585(b), the phrase “official detention” is not ambiguous. Moreland, 968 F.2d at 664 (Heaney, J., dissenting). Dawson’s confinement at the halfway house clearly was “official.” He resided there pursuant to a court order requiring him to do so. That the operative order was a “release” order is largely a matter of semantics. Further, regardless of the word or phrase used to describe Dawson’s stay at the halfway house, it cannot seriously be disputed that he was functionally “detained.” Since “official detention” is unambiguous, the Bureau of Prisons’ interpretation of the phrase is not entitled to any particular deference.

¶83Whether Dawson is entitled to sentence credit under § 3585(b)(1) depends on the degree of confinement or restraint imposed on him during his stay at the halfway house. Id. at 664 (Heaney, J., dissenting). “[A] defendant subject to conditions as restrictive as incarceration may receive sentence credit.” Id. at 664 (Heaney, J., dissenting).

¶84The record reflects that Dawson was subject to the same conditions of confinement as postsentence inmates residing at the halfway house. Dawson was completely confined for 12 hours during each 24-hour period, from 7:00 p.m. to 7:00 a.m. His presence was monitored by nightly bed checks and counts. If he left the facility, he was required to punch a time card and to provide the address and phone number of his destination. While away from the facility, Dawson was required to check in every three hours. While on the premises, he was prohibited from using alcohol, from engaging in sexual activity, and from entering other residents’ rooms. He could only use the telephone for 15 minutes at a time. He was required to provide random urinalysis samples and was subject to “on demand” searches of his person and property. He also was required to attend on-premises meetings. The facility placed limitations on his clothing and personal appliances. He could only receive “pre-approved” visitors, and all visits were required to take place in a “visiting room.”

¶85Residents were assigned work or maintenance duties. Those who did not have outside employment, such as Dawson, were required to seek employment daily and to submit a list of prospective employers contacted pursuant to that requirement. The facility deducted 25% of the gross weekly earnings of residents who were employed.

¶86If Dawson violated facility rules, he was subject to Bureau of Prisons — type administrative punishment. Unauthorized absences were punishable by loss of privileges, revocation of bond or criminal sanctions.

¶87The record thus demonstrates that Dawson was constantly and closely supervised during his stay at the halfway house, and was physically incarcerated for at least 12 hours each day. These particular circumstances constituted “official detention”, within the plain and ordinary meaning of that phrase. Any other interpretation is “unreasonable and contrary to the considerations of fairness that inspired Congress’ decision to provide credit for time served.” Moreland, 968 F.2d at 665 (Heaney, J., dissenting) (citing Brown v. Rison, 895 F.2d 533, 536 (9th Cir.1990)).

¶88B. Equal Protection

¶89Presentence detainees, such as Dawson, and postsentence detainees were subject to the same rules, restrictions and conditions of *897confinement while at the halfway house. Under the majority’s analysis, Dawson will not receive sentence credit, even though identically-treated postsentence detainees did.

¶90In my view, presentence and postsentence detainees at this particular halfway house were similarly situated for equal protection purposes. Rather than comparing the legal custody “status” of each group, a court should focus on the comparative degree of confinement of the two groups.

¶91In the section of his brief devoted to the equal protection issue, Appellee Scott has not articulated a rational reason for this disparate treatment. I find none. In the words of Judge Heaney,

I do not see how a delineation of the paths by which people become residents or a recitation of official goals and reasons leading to their residential status can adequately serve as a rational basis for differing treatment. Nobody would contend that the Bureau of Prisons could justify a denial of sentence credit to presentence detainees in county jails because their legal status differed from postsentence defendants. Under the statute, the degree of confinement is what is at issue, and the restraints on [the appellant’s] liberty at the [halfway house] were the same as those who were concluding a sentence there. Moreover, ... the restrictions on [the appellant’s] liberty were among the most severe that could have been imposed as a condition of pretrial release.

¶92Moreland, 968 F.2d at 666-67 (Heaney, J., dissenting).

¶93Denying Dawson sentence credit for his halfway house stay ignores the reality of his confinement and elevates form over substance.

¶94II. SAFE HOUSE

¶95I also dissent from the majority’s determination that Dawson should not receive sentence credit for his stay in the safe house, and the reasons underpinning that conclusion. Again, the pertinent issue is whether the conditions at the safe house were as restrictive as incarceration. In my view, that question cannot be resolved on the present record.

¶96In the proceedings below, Dawson detailed the conditions of his confinement at the halfway house. He was not nearly as specific about conditions at the safe house. However, Dawson filed at least three documents in the district court suggesting that the conditions at the safe house were the same as those at the halfway house.

¶97The first document is one Dawson originally submitted to the BOP in connection with the BOP’s administrative remedy process. Therein, Dawson indicated that when he was transferred from the halfway house to the safe house, “[t]he conditions of my restrictions were continued by the court at the ‘safe house.’ ” R. 12, Exhibit “Al” (Request for Administrative Remedy, attached to Petitioner’s Affidavit in Opposition to Respondent’s Motion for Summary Judgement [sic]).

¶98The second document is also one Dawson originally filed during the BOP administrative review process. In this document, Dawson stated that a pretrial services representative told him that he would continue to be under the same restrictions as imposed on him at the halfway house. R. 12, Exhibit “A4” (Attachment 1 to Request for Administrative Remedy) at para. 7.

¶99Finally, Dawson filed an affidavit in which his criminal defense counsel stated that “[a]f-ter discussions with Pretrial Services, I informed my client that he would still be subject to all of the conditions of custody that were imposed upon him at [the halfway house].” R. 13, Exhibit “E23” (Affidavit of Charles H. Reid, Esq., attached to Petitioner’s Opposition to Respondent’s Motion for Summary Judgement [sic] and Cross — Motion for Partial Summary Judgement [sic]) at para. 9.

¶100These submissions suggest that the conditions actually imposed on Dawson at the safe house may have been as restrictive as incarceration. However, the record on this point is not nearly as clear as with respect to the degree of confinement at the halfway house. Accordingly, I would remand with directions to the district court to make findings concerning the conditions of confinement Daw*898son actually experienced at the safe house, and to determine whether those conditions were as restrictive as incarceration.