IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________ No. 99-40450 _______________ KAREEM A. NAGIB, Petitioner-Appellant, VERSUS N.L. CONNER, EDWARD CROSLEY, and UNITED STATES BUREAU OF PRISONS, Respondents-Appellees. _________________________ Appeal from the United States District Court for the Eastern District of Texas (5:97-CV-252) _________________________ August 13, 1999 Before SMITH, WIENER, and At a detention hearing in late September 1989, BARKSDALE, Circuit Judges. he requested release on bond to Forest Hospital, a private health-care facility, for JERRY E. SMITH, Circuit Judge:* treatment of drug addiction and depression.

The magistrate judge requested that the federal Kareem Nagib appeals the denial of his probation office investigate whether the petition for writ of habeas corpus and proposed facility was a proper and secure declaratory judgment. Finding him entitled to facility for Nagib pending trial, and on some sentence credit for time spent in November 1, 1989, the magistrate judge unofficial detention, we REVERSE and ordered Nagib’s release to Forest Hospital.

RENDER judgment granting a sentence credit of fifty-two days. The order, entitled “Order: Conditional Release,” states that Nagib “shall be released I. on his own recognizance subject to the Police arrested Nagib in Wisconsin in following conditions,” including that the U.S. September 1989 for conspiracy to possess Marshal must transport Nagib to Forest with intent to distribute narcotics. He was Hospital and retri eve him for court detained in federal custody at the county jail. appearances. The order refers to Nagib’s “‘voluntary’ admission” to Forest Hospital and states that he “is ordered to remain in the * Pursuant to 5TH CIR. R. 47.5, the court has program of said Forrest [sic] Hospital until he determined that this opinion should not be is discharged or until the further order of this published and is not precedent except under the court” and that if he is discharged, “the U.S. limited circumstances set forth in 5TH CIR. R. Marshal is directed to be present . . . and to 47.5.4. deliver the body of defendant Nagib as he initially was credited with that time, but the directed by the court.” government “recomputed” his sentence in July 1994, to remove the credit. He was More than four months after he entered resentenced in 1993 to 151 months’ Forest Hospital, Nagib, on March 9, 1990, imprisonment under amendments to the was convicted of conspiracy with intent to Sentencing Guidelines, resulting in a release deliver narcotics, an offense with a statutory date of August 31, 2000. He contends that his minimum term of incarceration. Nonetheless, sentence should be credited with the 368 days on March 14, the district court granted he spent at Forest Hospital and, accordingly, Nagib’s motion to continue his treatment at that he should be released on August 28, 1999.

Forest Hospital pending sentencing.

Nagib filed this habeas petition under More than five months later, on 28 U.S.C. § 2241, arguing that the denial of September 28, Nagib was sentenced to 235 credit for the time he spent at Forest Hospital months’ imprisonment. Again, the court violates his due process rights and that the ordered that he be returned to Forest Hospital retroactive application of Reno v. Koray, pending classification by the Bureau of 515 U.S. 50 (1995), violates the Constitution’s Prisons. The court eventually ordered Nagib’s prohibition of ex post facto laws.2 The district release from Forest Hospital, and, on court referred the case to a magistrate judge, November 20, 1990, he was taken into federal who issued a report and recommendation on custody and transported to the Federal February 22, 1999. The district court adopted Medical Center in Rochester, Minnesota. In the magistrate judge’s report and denied relief. all, he spent 368 days at Forest Hospital, almost eight months of which was after his II. conviction. He spent 52 days at Forest Pursuant to 18 U.S.C. § 3585, which was Hospital after he was sentenced. enacted as part of the Sentencing Reform Act At sentencing, the court told Nagib he of 1984 and became effective in 1987, a would receive credit toward his sentence for defendant is awarded credit for any time spent the time he spent at Forest Hospital.1 Indeed, in “official detention.”3 The Bureau of Prisons

The following conversation occurred at the (...continued) sentencing hearing: language that you would like in the formal judgment and commitment MR. ZIEVERS [Nagib’s counsel]: Your order, I think it’s appropriate since the Honor, would there be—another defendant has been in effect in custody bookkeeping matter, would there be since his arrest. any entitlement to sentence credit at this point? MR. ZIEVERS: Thank you, Your Honor.

THE COURT: That is automatically given, Nagib does not appeal the dismissal of his Mr. Zievers; so, yes, you will receive it claim regarding the ex post facto application of with or without an order of the court. Koray, but he does argue that the fact that the decision came after his bail hearings supports his MR. ZIEVERS: I’m—obviously if he was contention that his right to due process has been in Racine [jail], it wouldn’t be a infringed. question; but I don’t want any confusion. He was in detention housed Before 1987, a defendant was entitled to at Forest Hospital. “credit toward service of his sentence for any days spent in custody in connection with the offense or THE COURT: We’ll, if you want to send acts for which the sentence was imposed.” my clerk a letter Monday detailing the 18 U.S.C. § 3568 (1982) (repealed in 1984) (continued...) (continued...) issued a program statement in 1992 providing Precluded from directly attacking the that government’s refusal to credit his sentence, [t]ime spent in a community corrections Nagib argues that he was either misinformed center . . . . is not creditable as or uninformed regarding the consequences of presentence time. A condition of bail or his bail election and that this lack of bond which is ‘highly restrictive,’ and information violated his due process rights. that includes ‘house arrest,’ ‘electronic He bases his argument on Justice Ginsburg's monitoring,’ or ‘home confinement’ . . . concurring opinion in Koray, in which she is not considered as time in official explained: detention.

Bureau of Prisons Program Statement 5880.28(c) (internal policy statement).

In Koray, 515 U.S. at 64, the Court approved the Bureau of Prisons's conclusion that time spent by a defendant at a community treatment center while “released” on bail is not “official detention” under 18 U.S.C. § 3585.

Koray thus forecloses any argument that Nagib's time at Forest Hospital comprised “official detention” under 18 U.S.C. § 3585.4

(...continued) (emphasis added).

In Koray, the Court considered a defendant who was released to a Volunteers of America community treatment center pending sentencing for money laundering, but whose “release order” required that he be “confined to the premises” and was without “authorization to leave for any reason” unless accompanied by a government agent. See Koray, 515 U.S. at 52-53. Deferring to the Bureau of Prisons's interpretation of “official detention,” the Court concluded that the defendant was not entitled to sentencing credit, because “[a] defendant who is ‘released’ is not in [the Bureau’s] custody, and he cannot be summarily reassigned to a different place of confinement unless a judicial officer revokes his release.” Id. at 63. The Court rejected the Third Circuit’s construction of official detention as including such a release, stating that “[t]o determine in each case whether a defendant ‘released’ on bail was subjected to ‘jail-type confinement’ would require a fact-intensive inquiry into the circumstances of confinement, an inquiry based on information in the hands of private entities not available to the Bureau as a matter of right,” but that “[t]he Government’s construction of § 3585(b), on the other hand, provides both it and the defendant with clear notice of the consequences of a § 3142 ‘release’ or ‘detention’ (...continued) (continued...) order.” Id. at 64.

I write separately to point out that been infringed because he was not informed at Koray has not argued before us that he the bail hearing that he would not receive did not elect bail intelligently, i.e., with credit toward any future sentence. The comprehension that time in the halfway defendant specifically invoked Justice house, unlike time in jail, would yield no Ginsburg’s concurring opinion in Koray. See credit against his eventual sentence. id. at 724.

The Court thus does not foreclose the possibility that the fundamental fairness Affirming the dismissal of the petition, the we describe as due “due process” calls court stated: for notice and a comprehension check.

Cf. Fed. Rule Crim. Proc. 11 (setting We have respectfully considered the out information a court is to convey to force of the possibility raised by Justice assure that a defendant who pleads Ginsburg that due process might require guilty understands the consequences of notice to a pretrial detainee that release the plea). conditioned on home confinement will not be credited against a subsequent Koray, 515 U.S. at 65 (Ginsburg, J., sentence and conclude that no such concurring). constitutional requirement exists . . . .

There is no relinquishment of any Nagib argued to the district court, and significant right when a defendant elects asserts again on appeal, that at the time of his bail. The defendant accepting the bail hearings he could not have known of the conditions of bail is simply trading jail- Bureau of Prisons's policy articulated in 1992 type confinement for something less and the Koray decision in 1995, and that the restrictive. Though [the defendant] court’s statement at the sentencing hearing accepted home detention, this degree of regarding sentencing credit led him to believe confinement was not imposed as a he would receive credit for the time he spent at surrender of prior liberty; it was an Forest Hospital. He contends that he has a upgrade to less restrictive confinement. due process right to clear notice of the consequences of electing a ‘release’ or ‘detention’ order and that that right was Id. The court determined that any opportunity violated when the district court failed to the defendant may have to shorten a later- inform him, when he initially sought release to imposed sentence “is too insubstantial to be the confined conditions of Forest Hospital, regarded as a liberty interest protected by the that he would receive no sentence credit for Due Process Clause” because, at the time the his time at the hospital. defendant elects conditional bail, “it is entirely speculative whether he will be convicted, and, III. if so, whether he will be sentenced to prison.”

A. Id. In rejecting Nagib’s argument, the district court relied on Cucciniello v. Keller, 137 F.3d We find Cucciniello's reasoning persuasive, (2d Cir. 1998). The defendant in that case and we agree that any liberty interest a pre- had been released on bail, while he was a pre- trial detainee has in getting an early start on a trial detainee, subject to a special condition of possible future sentence is too insubstantial to home confinement. The court said nothing at merit protection under the Due Process the bail hearing to indicate whether the period Clause. Accordingly, Nagib was not denied of home confinement (both before and after due process when the district court failed to conviction) would be credited against any inform him, at his bail hearing, that elective subsequent sentence. See id. at 722. The confinement at Forest Hospital would not be government later refused to credit the credited toward any subsequently imposed sentence, and the defendant sought habeas sentence. He is therefore not entitled to relief, arguing that his due process rights had sentence credit for the time spent at Forest he also notes that the court affirmatively Hospital prior to his conviction. misinformed him at his sentencing hearing that he would receive such credit. He claims that B. the court's misrepresentation violated his right After a defendant is convicted of a crime to due process and that he should thus get for which there is a mandatory minimum sentence credit for his time at Forest Hospital. sentence, a future sentence is no longer “entirely speculative,” and Cucciniello's We agree that the Due Process Clause reasoning no longer applies. We must thus guarantees a defendant's right not to be determine whether Nagib had a due process affirmatively misinformed of the sentencing right to be informed, at the time of conviction, implications of his decision to elect unofficial that his post-conviction tenure at Forest detention. “Litigants need to be able to trust Hospital would not count toward his sentence. the oral pronouncements of district court We conclude that he did not have such a judges,” United States v. Buchanan, 59 F.3d constitutional right. 914, 918 (9th Cir. 1995),5 and requiring district courts to refrain from providing To determine what procedures are required misinformation, unlike affirmatively requiring by due process, we balance private versus them to provide information, does not impose government interests. See Morrissey v. a significant burden. Accordingly, Nagib's due Brewer, 408 U.S. 471, 481 (1972). Nagib process rights were violated when the court contends that due process requires that a misinformed him that he would receive defendant be informed, when convicted, of the sentence credit, and he is therefore entitled to consequences of electing particular some relief. confinement options. The interests at stake are the defendant's interest in intelligently Nagib asserts that he should get credit for electing or declining to elect bail and the his entire tenure (368 days) at Forest Hospital. court's interest in avoiding the requirement to The sentencing court's misrepresentation spell out for defendants all the implications of concerning credit did not occur, however, until their bail election decisions. near the end of Nagib's stay at the hospital.

He thus did not rely on this misstatement in Given the heavy burden such a requirement would place on courts, which already must provide a host of technical protections, and the 5 fact that defendants could easily ask the court In Buchanan, a defendant entered into a plea about sentencing credit (as Nagib finally did at agreement in which he waived the right to appeal sentencing findings, yet when he appeared in court his sentencing hearing), we do not believe the to enter the plea, the court stated twice that he did Due Process Clause places an affirmative duty have a right to appeal the findings. 59 F.3d on courts to inform convicts of the sentencing at 916-17. The government did not object to those implications of their decisions regarding bail. statements when they were made. The Ninth Accordingly, the court did not violate Nagib's Circuit held the plea waiver unenforceable because due process rights in failing to inform him, the district court's clear statements trumped the when he was convicted, that any additional waiver language in the written agreement in light of time at Forest Hospital would not count the government's failure to object, and because toward his sentence. He is thus not entitled to “[l]itigants need to be able to trust the oral credit for all the time he spent at Forest pronouncements of district court judges.” Id. at Hospital after his conviction. 918. In the case at hand, the government did not object to the sentencing court's assertion that Nagib would receive sentence credit for his time at Forest C. Hospital. See also United States v. Amaya, 111 But Nagib does not claim merely that the F.3d 386, 387 (5th Cir. 1997) (vacating guilty plea court violated his due process rights in failing entered in reliance on false promise that court had to inform him that he would not receive authority sua sponte to depart downward for sentence credit for his time at Forest Hospital; substantial assistance). electing bail, and he is not entitled to credit for days spent in Forest Hospital before the misrepresentation. Instead, he is entitled to credit for the fifty-two days he spent in Forest Hospital after the court told him he would receive sentence credit.

Nagib elected to return to Forest Hospital while he waited for the Bureau of Prisons to take him into custody, and his decision to do so was surely influenced by the misrepresentation regarding sentence credit.

Fundamental fairness thus dictates that he receive credit for the fifty-two days he spent at Forest Hospital after his sentencing hearing.

We therefore REVERSE the judgment that Nagib is entitled to no credit for his time at Forest Hospital and RENDER a judgment granting him fifty-two days of sentence credit.