Wright v. Federal Bureau of Prisons

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
July 7, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

GLEN N A . W RIGH T,

Petitioner - A ppellant,

v. No. 05-1383

FED ERAL B UR EA U O F PR ISONS
and JO E L. N O RWO O D ,

Respondents - Appellees.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D. Ct. No. 04-CV-2667-REB/BNB)

David Alan Lewis, Brooklyn, New York (Colleen B. Scissors, Offices of Colleen
B. Scissors, LLC, Grand Junction, Colorado, on the briefs), appearing for
Appellant.

Jerry N. Jones, Assistant United States Attorney, (W illiam J. Leone, United States
Attorney, with him on the brief), Office of the United States Attorney for the
District of C olorado, Denver, Colorado, appearing for Appellees.

M ary Price, Esq., General Counsel, Families Against M andatory M inimums,
Denver, Colorado, and Philip A. Cherner, Esq., Law Office Of Philip A. Cherner,
W ashington, DC, for Amicus Curiae for Families Against M andatory M inimums.

Before TA CH A, Chief Circuit Judge, BARRETT, Senior Circuit Judge, and
O’BRIEN, Circuit Judge.

TA CH A, Chief Circuit Judge.
 In 1996, Petitioner-A ppellant Glenn W right was convicted of interstate

transportation of child pornography in violation of 18 U.S.C. § 2252A and

sentenced to 168 months’ imprisonment; he began serving his sentence on M ay

24, 1996. M r. W right will not be incarcerated for the entire 168 months,

however, and the question this appeal raises is how early he will be released.

Based on its interpretation of 18 U.S.C. § 3624(b), the federal statute governing

the calculation of credit for good conduct in prison, the Bureau of Prisons

(“BOP”) predicts that M r. W right will earn 635 days of good time credit. Under

M r. W right’s interpretation of the statute, he predicts that he will earn 729 days of

good time credit. In December 2004, he petitioned the District Court for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241 to dispute BOP’s method of

calculation. The District Court denied his petition; we take jurisdiction under 28

U.S.C. §§ 1291 and 2253(a) and AFFIRM .

I.

This appeal presents a straightforward case of statutory interpretation. The

statute at issue, 18 U.S.C. § 3624(b), allows a prisoner to earn credit toward the

service of his sentence for exemplary conduct in prison. The provision provides

in relevant part:

[A] prisoner who is serving a term of imprisonment of more than 1
year other than a term of imprisonment for the duration of the
prisoner’s life, may receive credit toward the service of the
prisoner’s sentence, beyond the time served, of up to 54 days at the

-2-
 end of each year of the prisoner’s term of imprisonment, beginning at
the end of the first year of the term, subject to determination by the
Bureau of Prisons that, during that year, the prisoner has displayed
exemplary compliance with institutional disciplinary regulations. . . .
[C]redit for the last year or portion of a year of the term of
imprisonment shall be prorated and credited within the last six weeks
of the sentence.

18 U.S.C. § 3624(b)(1) (emphasis added). The BOP issued a regulation, after

notice and comment, see 5 U.S.C. § 553, interpreting the emphasized portion of

the statute. The regulation provides that the BOP will “award 54 days credit

toward service of sentence . . . for each year served.” 28 C.F.R. § 523.20(a)

(emphasis added). The BOP has also issued, as part of its Sentence Computation

M anual, Program Statement 5880.28, which provides a formula for calculating

good-time credit on sentences exceeding a year and a day. As the Seventh Circuit

has explained:

[The] formula is based on the premise that for every day a prisoner
serves on good behavior, he may receive a certain amount of credit
toward the service of his sentence, up to a total of fifty-four days for
each full year. Thus, under the Bureau’s formula, a prisoner earns
.148 days’ credit for each day served on good behavior (54 / 365 =
.148), and for ease of administration the credit is awarded only in
whole day amounts. Recognizing that most sentences will end in a
partial year, the Bureau’s formula provides that the maximum
available credit for that partial year must be such that the number of
days actually served will entitle the prisoner (on the .148-per-day
basis) to a credit that when added to the time served equals the time
remaining on the sentence.

White v. Scibana, 390 F.3d 997, 1000 (7th Cir. 2004), cert denied, White v.

Hobart, --- U.S. ---, 125 S. Ct. 2921, 2922 (2005). In other words, the BOP reads

-3-
the statute as mandating good time credits to be calculated based on the amount of

time served in prison.

M r. W right argues, however, that § 3624(b)(1) unambiguously requires

good time credit to be calculated based upon the sentence imposed, as opposed to

the time served. Therefore, according to M r. W right, he is entitled to fifty-four

days of good-time credit for each of the fourteen years to which he was

sentenced, minus any deductions for disciplinary violations.

II.

Because this case involves an administrative agency’s construction of a

statute, our analysis is governed by Chevron U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984). Under Chevron, we first determine “whether

Congress has directly spoken to the precise question at issue.” Id. at 842. If so,

our inquiry is at an end; “the court ‘must give effect to the unambiguously

expressed intent of Congress.’” Food and Drug Admin. v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 132 (2000) (quoting Chevron, 467 U.S. at 843). If,

on the other hand, the statute is silent or ambiguous on the issue, we will

determine whether the agency’s view is based on a permissible construction of the

statute. Chevron, 467 U.S. at 843.

W e review issues of statutory construction de novo. Robbins v. Chronister,

435 F.3d 1238, 1240 (10th Cir. 2006) (en banc). “‘[O]ur task is to interpret the

words of the statute in light of the purposes Congress sought to serve.’” Hain v.

-4-
M ullin, 436 F.3d 1168, 1176 (10th Cir. 2006) (en banc) (quoting Dickerson v.

New Banner Inst., Inc., 460 U .S. 103, 118 (1983)). Our starting point, as always,

is the language employed by Congress. Id. W e read the words of the statute “in

their context and with a view to their place in the overall statutory scheme.”

Brown & Williamson, 529 U.S. at 132-133; Hain, 436 F.3d at 1177.

Our focus in this case is directed at the meaning of “term of imprisonment.”

The phrase has inconsistent meanings throughout § 3624. For example, § 3624(a)

states that “[a] prisoner shall be released by the [BO P] on the date of the

expiration of the prisoner’s term of imprisonment, less any time credited tow ard

the service of the prisoner’s sentence as provided in subsection (b).” Here, “term

of imprisonment” plainly refers to the “sentence imposed” since the BOP is

instructed to deduct time credited from the prisoner’s sentence. Perez-Olivo v.

Chavez, 394 F.3d 45, 49 (1st Cir. 2005). In § 3624(d), however, the same phrase

means “time served.” That section provides that “[u]pon the release of a prisoner

on the expiration of the prisoner’s term of imprisonment, the [B OP] shall furnish

the prisoner with [suitable clothing, an amount of money not to exceed $500, and

transportation].” 18 U.S.C. § 3624(d). Indeed, “[i]t would make no sense to

provide [a prisoner] these amenities at a time when the prisoner’s original

imposed sentence had expired— a date that would obviously occur after the

prisoner had been released based on good time credits.” Perez-O livo, 394 F.3d at

49 (quoting Loeffler v. Bureau of Prisons, No. 04-4627, 2004 W L 2417805, at *3

-5-
(S.D.N.Y. Oct. 29, 2004)).

The phrase is also used three times in the first sentence of § 3624(b)(1).

The provision applies to a prisoner “serving a term of imprisonment of more than

1 year other than a term of imprisonment for the duration of the prisoner’s life.”

18 U.S.C. § 3624(b)(1) (emphasis added). Here, the phrase means “sentence

imposed” since the statute only applies to prisoners w ho have been sentenced to

more than one year’s imprisonment and less than life. Yi v. Fed. Bureau of

Prisons, 412 F.3d 526, 531 (4th Cir. 2005). The BOP must be able to determine,

on the first day the prisoner arrives in prison, if he will be eligible for good time

credits. If, on the other hand, the phrase meant “time served” then a prisoner

“who initially would be eligible for the credit because his sentence was, say, 366

days, would become ineligible once the credit was taken into account.” White,

390 F.3d at 1001.

But the specific use of the phrase at issue here describes not how to

determine whether a prisoner is eligible for good time credits, but how (and

w hen) to calculate them. A t the end of each year of imprisonment, if the BOP

determines that the prisoner’s behavior during that year was exemplary, then it

may award up to fifty-four days credit toward service of the prisoner’s sentence.

18 U.S.C. § 3624(b)(1). The statute contemplates retrospective annual assessment

of a prisoner’s behavior— that is, Congress intended that prisoners earn good time

credits by “display[ing] exemplary compliance with institutional disciplinary

-6-
regulations.” 18 U.S.C. § 3624(b)(1). To interpret “term of imprisonment” to

mean “sentence imposed,” as M r. W right suggests, an inmate could receive credit

for time when he was not in prison at all. See White, 390 F.3d at 1002. For

example, M r. W right suggests that he is entitled to fifty-four days of credit for

each of the fourteen years to which he was sentenced (minus any deductions for

less-than-exemplary behavior), even though it is undisputed that M r. W right will

not serve any of his fourteenth year. Simply put, “[a]n inmate w ho is not in

prison cannot ‘earn’ credit for compliance with disciplinary regulations,” Yi, 412

F.3d at 532, and M r. W right’s reading of the statute w ould appear to frustrate

Congress’s intent, see Sash v. Zenk, 428 F.3d 132, 137 (2d Cir. 2005) (stating that

such a reading would “conflict with § 3624’s directive that good time be

calculated at the end of each year” based on the prisoner’s actual behavior during

that year).

M r. W right next argues that his reading is bolstered by the use of the w ord

“credit” in § 3624(b)(1). He suggests that “credit” means “deduction from an

amount otherwise due” and can only refer to the sentence imposed since it is

impossible to get “credit” for time served, because that time is no longer due. W e

agree with M r. W right that a prisoner receives “credit” toward his sentence

imposed. Indeed, the statute explicitly says as much: a prisoner “may receive

credit toward the service of the prisoner’s sentence.” 18 U.S.C. § 3624(b)(1).

W e disagree, however, with M r. W right’s conclusion that this renders the use of

-7-
the phrase “term of imprisonment” to unambiguously mean “sentence imposed.”

Nor does legislative history resolve this dispute. See Anderson v. U.S.

Dept. of Labor, 422 F.3d 1155, 1180–81 (10th Cir. 2005) (ordinary tools of

statutory construction include consultation of legislative history). Although

earlier good time credit statutes revealed a clear Congressional intent to calculate

credits based on the sentence imposed, see, e.g., 18 U.S.C. § 4161 (repealed

1984), the legislative history of the current statute does not indicate any

Congressional intent to calculate credits based on the sentence imposed as

opposed to the time served. Perez-Olivo, 394 F.3d at 50. Nor do some

congresspersons’ general statements made shortly after the passage of the statute

evidence a clear congressional intent to calculate credits based on the sentence

imposed. See, e.g., 131 Cong. Rec. E37-02 (Jan 3, 1985) (Statement of Rep. Lee

Hamilton) (“Now sentences w ill be reduced only 15% for good behavior”); see

also Perez-Olivo, 394 F.3d at 51 (stating that the general statements do not

resolve ambiguity in the phrase “term of imprisonment”).

Nevertheless, M r. W right argues that there is a presumption that identical

words appearing in different parts of the same statute have the same meaning and

that the presumption is strongest when a term is repeated in a single sentence.

See Brown v. Gardner, 513 U.S. 115, 118 (1994). The rule of consistency, as M r.

W right acknowledges, is only a presumption. “[T]he presumption is not rigid and

readily yields whenever there is such variation in the connection in which the

-8-
words are used as reasonably to warrant the conclusion that they were

employed . . . with different intent.” Gen. Dynamics Land Sys., Inc. v. Cline, 540

U.S. 581, 595 (2004). Indeed, as discussed above, the phrase means different

things in § 3624(a) (sentence imposed) and § 3624(d) (time served). As for the

issue at hand, we hold, in accordance with nearly every circuit court to consider

the issue, that “term of imprisonment” is ambiguous as it is susceptible to more

than one interpretation. See Bernitt v. M artinez, 432 F.3d 868, 869 (8th Cir.

2005); Sash, 428 F.3d at 136; Petty v. Stine, 424 F.3d 509, 510 (6th Cir. 2005);

Brown v. M cFadden, 416 F.3d 1271, 1272–73 (11th Cir. 2005); Yi, 412 F.3d at

533; O’Donald v. Johns, 402 F.3d 172, 174 (3d Cir. 2005); Perez-Olivo, 394 F.3d

at 52; White, 390 F.3d at 1002–03; Pacheco-Camacho v. Hood, 272 F.3d 1266,

1269–70 (9th Cir. 2001); but see Moreland v. Fed. Bureau of Prisons, 431 F.3d

180, 186 (5th Cir. 2005) (holding that § 3624(b)(1) unambiguously directs good

time credits to be calculated at the end of each year of time served).

Before proceeding to the second step of our Chevron analysis, we briefly

digress to resolve an intermediate argument raised by M r. W right. M r. W right

contends that Chevron deference is inappropriate in this case because if a

sentencing statute is ambiguous, we must apply the rule of lenity to construe the

ambiguity in his favor. United States v. Bass, 404 U.S. 336, 347 (1971) (stating

that “ambiguity concerning the ambit of criminal statutes should be resolved in

favor of lenity”). Indeed, the rule of lenity applies “not only to interpretations of

-9-
the substantive ambit of criminal prohibitions, but also to the penalties they

impose.” Bifulco v. United States, 447 U.S. 381, 387 (1980). The principle of

lenity is founded on two firmly-rooted ideas in this country’s tradition: “First, a

fair warning should be given to the world in language that the common world will

understand, of what the law intends to do if a certain line is passed. . . .

Second . . . legislatures and not courts should define criminal activity.” Bass, 404

U.S. at 348 (internal quotations and citations omitted).

W e conclude that the rule of lenity does not apply here. Section 3624(b) is

neither a substantive criminal statute nor does it prescribe the punishment

imposed for a violation of such a statute. Sentencing credits are awarded to those

prisoners who behave in prison— they “are awarded to ensure administrative order

in prisons, not to further the punitive goals of the criminal law.” Sash, 428 F.3d

at 134–35. Further, neither of the rule’s underlying principles are implicated

here. As an administrative tool, rather than a punitive measure, the ambiguity of

§ 3624(b) “does not result in any lack of notice to potential violators of the law of

the scope of the punishment that awaits them.” Sash, 428 F.3d at 134. M oreover,

because § 3624(b) is not criminal in nature, neither the courts nor the BOP have

infringed upon the role of the legislature to define what constitutes criminal

activity and how it should be punished. Id. at 135.

Having concluded that the statute is ambiguous, and that the rule of lenity

does not apply, the next step in the Chevron analysis is to determine whether the

-10-
BOP’s interpretation of the statute is a permissible one. Chevron, 467 U.S. at

843. 1 As the preceding discussion shows, the BOP’s interpretation of

§ 3624(b)(1) is clearly a reasonable one. The statute directs that a prisoner “may

receive credit toward the service of the prisoner’s sentence . . . at the end of each

year.” 18 U.S.C. § 3624(b)(1). “This is a clear congressional directive that the

BOP look retroactively at a prisoner’s conduct over the prior year, which makes it

reasonable for the BOP only to award [good time credits] for time served.”

Perez-Olivo, 394 F.3d at 53. Indeed, every circuit to consider the issue has also

concluded that such an interpretation is reasonable. See Bernitt, 432 F.3d at 869;

Sash, 428 F.3d at 136; Petty, 424 F.3d at 510; Brown, 416 F.3d at 1272–73; Yi,

412 F.3d at 534; O’Donald, 402 F.3d at 174; Perez-Olivo, 394 F.3d at 53; White,

390 F.3d at 1003; Pacheco-Camacho, 272 F.3d at 1270.

III.

For the reasons set forth above, the D istrict Court’s order dismissing M r.

W right’s petition for a w rit of habeas corpus is AFFIRMED.

1
Congress has implicitly delegated interpretative authority over this issue to
the BOP. Perez-Olivo, 394 F.3d at 52; Pacheco-Camacho, 272 F.3d at 1270.
Accordingly, the BOP’s interpretation of the statute is afforded full Chevron
deference and we “may not substitute [our] ow n construction of a statutory
provision for a reasonable interpretation made by the administrator of an agency.”
Chevron, 467 U.S. at 844; Harbert v. Healthcare Servs. Group, Inc., 391 F.3d
1140, 1147 (10th Cir. 2004)

-11-
05-1383, Wright v. Federal Bureau of Prisons

O’BRIEN, J. concurring.

I concur in the result reached by the majority. If the statutory language

were ambiguous, I would join in the majority’s reasoning and discussion

affording Chevron deference to the agency’s interpretation of the statute. But,

like the Fifth Circuit, I think the statute unambiguously specifies the method by

which good time is to be calculated. M oreland v. Federal Bureau of Prisons, 431

F.3d 180, 186 (5th Cir. 2005). The Bureau of Prisons has been faithful to that

method.

W right’s term of imprisonment is 168 months; that is also 14 years or 5112

days. It commenced M ay 24, 1996. W right may legitimately ask, “W hen do I get

out?” A bsent good time credits the answer is quite simple. Each day W right

serves reduces the remaining days by one. It is (or can be) calculated and

credited daily. Provisions for good time credit add a wrinkle and prompt other

questions.

W ith respect to good time credit W right may ask, “How much good time

credit do I get, when is it to be credited and how is it to be credited?” The

statute answers each question with straight-forward language. 1

1
18 U.S.C. § 3624(b)(1) provides in relevant part:
[A] prisoner who is serving a term of imprisonment of more than 1
year other than a term of imprisonment for the duration of the
(continued...)
 First, the amount is unambiguous, because it is easy to calculate. It

depends upon the prisoner’s conduct but “cannot exceed 54 days per year.”

Second, when it is to be credited is also unambiguous and the calculations

are, again, simple. It is to be credited “at the end of each year of the prisoner’s

term of imprisonment, beginning at the end of the first year of the term,” the

sentence anniversary date. A term of imprisonment expressed in months must be

converted into years in order to determine anniversary dates; for a fourteen year

sentence with no good time credits, there are 13. 2 The credit is to be applied

annually on the anniversary date.

Finally, how the credit is to be applied seems to be equally clear and the

calculations equally simple. Good time credit is to applied “toward the service of

the prisoner’s sentence.” A prisoner serves his sentence day by day. He expects

to, and does, receive credit against the “term of imprisonment” for each day he

1
(...continued)
prisoner’s life, may receive credit toward the service of the
prisoner’s sentence, beyond the time served, of up to 54 days at the
end of each year of the prisoner’s term of imprisonment, beginning at
the end of the first year of the term, subject to determination by the
Bureau of Prisons that, during that year, the prisoner has displayed
exemplary compliance with institutional disciplinary regulations.. . .
[C]redit for the last year or portion of a year of the term of
imprisonment shall be prorated and credited within the last six weeks
of the sentence.

2
All other things being equal, the 14 th anniversary would be the release
date.

-2-
has served. Thus, to calculate the time remaining in a “term of imprisonment” the

imposed term must be converted to days. A 168 month sentence beginning M ay

24, 1996, ends M ay 23, 2010. That is 5112 days, including the extra days in leap

years. Each day served is deducted from the total days to be served. At the end

of the first year the prisoner has 4747 days remaining (5112-365 = 4747). If the

prisoner earned maximum good time during that year it must be credited on the

sentence anniversary date. Using the method for crediting time actually served

(deducting it from the time remaining) the prisoner would then have 4693 days

remaining in his “term of imprisonment” (4747-54 = 4693). The calculations

continue, granting daily credit for time actually served and annual credit for good

time earned, until the days remaining equal zero. Following is a spread sheet

example (faithful to statutory language) of a 14 year sentence with maximum

good time credits. It is intended for illustrative purposes only and does not

purport to be the Bureau of Prisons’ actual calculation here.

G oo d T im e C om pu tation — 1 4 year sen ten ce

B e g in D a te End D a te Ye ars M on th s Days
5 / 23 / 20 1
5 / 24 / 19 9 6 14 168 5 1 12
0

A nn ive rsary Ye a r Se rved Tim e G o o d T im e To tal C redit D a ys left a fter cred it Relea se D a te
5 / 24 / 19 9 6 0 5 1 12 5 / 23 / 20 1 0
5 / 24 / 19 9 7 1 365 54 419 4 6 93 3 / 30 / 20 1 0
5 / 24 / 19 9 8 2 365 54 419 4 2 74 2 / 4/ 2 01 0
5 / 24 / 19 9 9 3 365 54 419 3 8 55 1 2 /1 2 /2 0 09
5 / 24 / 20 0 0 4 366 54 420 3 4 35 1 0 /1 9 /2 0 09
5 / 24 / 20 0 1 5 365 54 419 3 0 16 8 / 26 / 20 0 9

-3-
 5 / 24 / 20 0 2 6 365 54 419 2 5 97 7 / 3/ 2 00 9
5 / 24 / 20 0 3 7 365 54 419 2 1 78 5 / 10 / 20 0 9
5 / 24 / 20 0 4 8 366 54 420 1 7 58 3 / 17 / 20 0 9
5 / 24 / 20 0 5 9 365 54 419 1 3 39 1 / 22 / 20 0 9
5 / 24 / 20 0 6 10 365 54 419 920 1 1 /2 9 /2 0 08
5 / 24 / 20 0 7 11 365 54 419 501 1 0 /6 / 20 0 8
5 / 24 / 20 0 8 12 366 54 420 81 8 / 13 / 20 0 8
7 / 31 / 20 0 8 12 68 12 80 1 8 / 1/ 2 00 8
8 / 1/ 2 00 8 R e le ase D ate 0

Serv ed a s o f 7 / 31 / 20 0 8 4 4 51
G T C red it (7 / 31 / 20 0 8) 660
T ota l C red it (7 / 31 / 20 0 8) 5 1 11
_ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _

___
Su m m ary
Im p o se d S erv e d Go od T im e P e rc en tag e
5 1 12 4 4 52 8 7 .0 9 %
5 1 12 660 1 2 .9 1 %

W right proposes a method for crediting good time at odds with the

practices of the Bureau of Prisons. It is most clearly stated in the Brief of Amicus

Curiae, which W right explicitly adopted at oral argument:

Petitioner and Amicus, . . . read the statute literally to grant a
“credit,” that is a deduction, at the “end of each year” of the “term of
imprisonment” imposed, if “during that year,” the prisoner has been
well behaved. 18 U.S.C. § 3624(b). Accordingly, after the prisoner
has served a year, the Bureau may apply a “credit,” by definition a
“deduction,” of up to 54 days from that year, if, “during that year,”
the prisoner was well behaved. This credit, applied to the prior year
of the term, establishes the day on which service of that year was
fully satisfied. If the prisoner is granted 54 days’ credit, he satisfied
service of the first year of the term of imprisonment on the 311th day
actually served. The 312th day served thus becomes the first day of
the second year of the term. After another year of the term has
passed, the B ureau must again look back and consider the prisoner’s
conduct during the preceding year and again make the appropriate
deduction, which establishes the date on which service of that year
was satisfied and the succeeding year begins, and so on. Honoring

-4-
 the exact wording of the statute, then, a prisoner will be eligible for
54 days for each year of the “term of imprisonment” imposed by the
sentencing court. The plain words of the statute are thus effectuated
without the need to read the phrase “term of imprisonment” to have
two different meanings – the “term imposed” and the “time served” –
in the single sentence in which it appears, as the Bureau of Prisons
does.

Amicus Br., Families Against M andatory M inimums, at 2-3.

A good lawyer can formulate an argument that makes a hash of almost any

statutory, regulatory or contractual language. 3 W e must look through the

argument. Our approach is practical and circumspect. “A s in all statutory

construction cases, we begin with the language of the statute.” Barnhart v.

Sigmon Coal Co., 534 U.S. 438, 450 (2002). If the statutory language is not

ambiguous, and “the statutory scheme is coherent and consistent,” further inquiry

is unneeded. Id. (quotation marks omitted). “The plainness or ambiguity of

statutory language is determined by reference to the language itself, the specific

context in w hich that language is used, and the broader context of the statute as a

whole.” Robinson v. Shell O il Co., 519 U.S. 337, 341 (1997); see also U.S. Nat'l

3
Years ago Chief Justice Burger gave a speech lamenting the poor
courtroom competence of many lawyers. W ith tongue firmly in cheek, Art
Buchwald penned a retort as only he could, or would. Among other things he
said: “A competent, first class lawyer can tie a case up in knots not only for the
jury but for the judge as well. . . . It is the able lawyers [not the incompetent
ones] who should not be permitted in the courtroom since they are the ones who
are doing all the damage.” See, Art Buchwald, "Bad Lawyers Are Very Good for
the U.S. Justice System," 64 A.B.A. J. 328 (1978).
“An incompetent lawyer can delay a trial for months or years. A competent
lawyer can delay one even longer.” Evelle Younger.

-5-
Bank of O r. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993)

(“Statutory construction is a holistic endeavor, and, at a minimum, must account

for a statute's full text, language as well as punctuation, structure, and subject

matter.”) (internal quotation and citation omitted).

W right’s arguments present a possible, but implausible, gloss on

unambiguous statutory language. If we can fairly do so, we should avoid, not

beget, a construction of a statute making it ambiguous.

-6-