Giovinco v. Pullen

23-251
Giovinco v. Pullen
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
A UGUST TERM 2023
No. 23-251
C HARLES A NTHONY G IOVINCO ,
Petitioner-Appellant,
v.
T IMETHEA PULLEN , WARDEN ,
Respondent-Appellee.
On Appeal from the United States District Court
for the District of Connecticut
A RGUED: JUNE 21, 2024
DECIDED: O CTOBER 8, 2024
Before: L IVINGSTON, Chief Judge, and L OHIER and MENASHI,
Circuit Judges.
The First Step Act of 2018 (“FSA”) permits an eligible prisoner
to earn time credits if he participates in certain programs or activities.
See 18 U.S.C. § 3632(d)(4). A prisoner is not eligible to earn such
credits if he “is serving a sentence for a conviction” of certain
enumerated offenses. Id. § 3632(d)(4)(D). The question in this case is

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whether a prisoner serving a term of imprisonment for multiple
offenses—only some of which are ineligible for FSA time credits—
may earn FSA time credits for the portion of his term attributable to
an eligible offense.
We conclude that the answer is no. Under 18 U.S.C. § 3584(c),
“[m]ultiple terms of imprisonment ordered to run consecutively or
concurrently shall be treated for administrative purposes as a single,
aggregate term of imprisonment.” Id. § 3584(c). Pursuant to this
aggregation provision, a prisoner “is serving a sentence for” any
offense that is part of his aggregated term of imprisonment.
Accordingly, the Bureau of Prisons must aggregate a prisoner’s
sentence pursuant to § 3584(c) for the administrative purpose of
determining his eligibility for FSA time credits under § 3632(d)(4). We
affirm the judgment of the district court.
JOHN R. QUINN, Law Office of John R. Quinn, Bay Shore,
NY, for Petitioner-Appellant.
JOHN W. L ARSON, Assistant United States Attorney
(Sandra S. Glover, Assistant United States Attorney, on
the brief), for Vanessa Roberts Avery, United States
Attorney for the District of Connecticut, New Haven, CT,
for Respondent-Appellee.
MENASHI, Circuit Judge:
Petitioner-Appellant Charles Anthony Giovinco appeals the
judgment of the district court denying his petition for a writ of habeas
corpus under 28 U.S.C. § 2241. In 2008, Giovinco pleaded guilty to
enticement of a minor and possession of child pornography. He was

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sentenced to concurrent terms of 235 months of imprisonment on the
enticement count and 120 months of imprisonment on the possession-
of-child-pornography count.
In 2018, Congress enacted the First Step Act of 2018 (“FSA”).
The FSA permits an eligible prisoner to earn time credits if he
participates in certain programs or activities. A prisoner is not eligible
to earn time credits if he “is serving a sentence for a conviction” of
certain enumerated offenses, including possession of child
pornography. 18 U.S.C. § 3632(d)(4)(D).
Giovinco argues that § 3632(d)(4)(D) renders him ineligible to
earn time credits only while serving the individual sentence
attributable to the ineligible offense. He contends that once he
completed serving the maximum sentence on his ineligible
conviction—possession of child pornography—he was no longer
“serving a sentence for” an ineligible offense and was therefore
eligible to earn FSA time credits for the remainder of his term of
imprisonment. The Bureau of Prisons (“BOP”) argues that Giovinco
is ineligible to earn FSA time credits for his entire aggregated term of
imprisonment. The BOP contends that 18 U.S.C. § 3584(c)—which
requires that “[m]ultiple terms of imprisonment ordered to run
consecutively or concurrently … be treated for administrative
purposes as a single, aggregate term of imprisonment”—applies to
the BOP’s administration of the FSA time credit program.
We conclude that, pursuant to the aggregation provision, a
prisoner “is serving a sentence for” any offense that is part of his
aggregated term of imprisonment. Accordingly, the BOP must
aggregate a prisoner’s sentence pursuant to § 3584(c) for the purpose
of determining his eligibility for FSA time credits under § 3632(d)(4).
We affirm the judgment of the district court.

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BACKGROUND
In 2008, Giovinco pleaded guilty to a two-count indictment
charging him with (1) using the internet to entice a minor to engage
in sexual activity in violation of 18 U.S.C. § 2242(b), and (2) possession
of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). He was
sentenced to concurrent terms of 235 months of imprisonment on the
enticement count and 120 months of imprisonment on the child-
pornography count, to be followed by a lifetime term of supervised
release.
In 2018, Congress enacted the First Step Act of 2018, Pub. L.
No. 115-391, 132 Stat. 5194, a criminal justice reform statute. Among
other reforms, the FSA provides that an eligible prisoner may earn
time credits if he successfully participates in certain evidence-based
recidivism reduction programs or productive activities. See 18 U.S.C.
§ 3632(d)(4). The time credits are applied toward pre-release custody
or supervised release. Id. § 3632(d)(4)(C). A prisoner is not eligible to
earn FSA time credits if he “is serving a sentence for a conviction” of
certain enumerated offenses. Id. § 3632(d)(4)(D). The ineligible
offenses include possession of child pornography under § 2252. See id.
§ 3632(d)(4)(D)(xli). The FSA tasks the BOP with administering the
FSA time credit program under the supervision of the Attorney
General. See id. §§ 3621(h), 3631.
In 2022, Giovinco sought to be reclassified as eligible for FSA
time credits. He asserted that he had served the maximum sentence
on his ineligible conviction—possession of child pornography—so he
was no longer “serving a sentence for” an ineligible offense. The BOP
denied his request and his subsequent appeals. In denying his final
appeal, the BOP’s Office of General Counsel explained its conclusion

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that Giovinco was not eligible to earn time credits for the entirety of
his term of imprisonment:
An eligible prisoner means the prisoner is not currently
serving a sentence for a conviction that is on the list of
ineligible offenses as listed in the FSA and 18 U.S.C.
§ 3623(d)(4)(D). This applies to your current
commitment in its entirety, not the individual terms of
imprisonment. Accordingly, your assertion that the
counts of conviction are separate and that [time credits]
can be applied separately to the “eligible” portion is
incorrect.
App’x 28.
Giovinco then filed a habeas petition, which the district court
denied. See Giovinco v. Pullen, No. 22-CV-1515, 2023 WL 1928108, at *1
(D. Conn. Feb. 10, 2023). The district court explained that the
aggregation provision, 18 U.S.C. § 3584(c), applies to the
administration of FSA time credits and indeed that “[c]ourts have
consistently held that sentence calculation by the BOP and the BOP’s
administration of incentives which reduce the length of a prisoner’s
term of imprisonment are administrative functions of the BOP subject
to § 3584(c).” Id. at *2 (quoting Sok v. Eischen, No. 22-CV-458, 2022 WL
17156797, at *5 (D. Minn. Oct. 26, 2022), report and recommendation
adopted, No. 22-CR-458, 2022 WL 17128929 (D. Minn. Nov. 22, 2022),
aff’d, No. 23-1025, 2023 WL 5282709 (8th Cir. Aug. 17, 2023)). The
district court observed that the FSA “is silent on how to determine the
eligibility of an inmate, like Mr. Giovinco, convicted of multiple
charges, not all of which render him ineligible for time credits.” Id. at
*3. The district court deferred to the BOP’s “reasonable interpretation
of the statute,” id. (citing Chevron v. NRDC, 467 U.S. 837, 842-44 (1984),
overruled by Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024)),
recognizing that the FSA “must be read in the context of the BOP’s

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statutory obligation to aggregate concurrent and consecutive
sentences for administrative purposes,” id.
STANDARD OF REVIEW
We review the denial of a petition for a writ of habeas corpus
de novo. Drake v. Portuondo, 321 F.3d 338, 343 (2d Cir. 2003). We also
consider questions of statutory interpretation de novo. Fisher v. Aetna
Life Ins. Co., 32 F.4th 124, 135 (2d Cir. 2022).
DISCUSSION
The FSA provides that a “prisoner is ineligible to receive time
credits … if the prisoner is serving a sentence for a conviction” of an
ineligible offense. 18 U.S.C. § 3632(d)(4)(D). The FSA does not address
whether a prisoner serving concurrent or consecutive sentences—at
least one of which is for an ineligible offense—may earn FSA time
credits for the portion of his term that is attributable only to an eligible
offense. Thirty-four years before Congress enacted the FSA, however,
Congress adopted 18 U.S.C. § 3584. That statute provides that
“[m]ultiple terms of imprisonment ordered to run consecutively or
concurrently shall be treated for administrative purposes as a single,
aggregate term of imprisonment.” Id. § 3584(c).
Giovinco argues that the plain meaning of § 3632(d)(4)(D)
directs that a prisoner be ineligible for FSA time credits only while he
“is serving” the individual sentence for the ineligible offense. He
further argues that the aggregation provision does not apply to the
BOP’s determination of a prisoner’s eligibility for FSA time credits
because Congress rather than the BOP set the criteria for eligibility—
so the determination of a prisoner’s eligibility is not an
“administrative purpose” of the BOP.

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The BOP acknowledges that the most natural reading of
§ 3632(d)(4)(D), standing alone, might render ineligible only the
individual sentence applicable to the ineligible offense.1 But the BOP
argues that the text must be read in light of the statutory scheme—
including, in particular, the BOP’s obligation to aggregate sentences
under § 3584(c). According to the BOP, the statutory scheme requires
it to aggregate multiple terms of imprisonment when administering
the FSA time credit program.
I
“It is a fundamental canon of statutory construction that the
words of a statute must be read in their context and with a view to
their place in the overall statutory scheme.” West Virginia v. EPA, 597
U.S. 697, 721 (2022) (quoting Davis v. Mich. Dep’t of Treasury, 489 U.S.
803, 809 (1989)). We therefore “consider not only the bare meaning of
the critical word or phrase but also its placement and purpose in the
statutory scheme.” Kar Onn Lee v. Holder, 701 F.3d 931, 936 (2d Cir.
2012) (quoting Holloway v. United States, 526 U.S. 1, 6 (1999)). “Our
duty, after all, is to construe statutes, not isolated provisions.” King v.
Burwell, 576 U.S. 473, 486 (2015) (internal quotation marks omitted).
In construing a statutory text, we recognize that “Congress may
establish a ‘background principle of interpretation’ to guide courts in
understanding subsequently enacted statutes.” Everytown for Gun
Safety Support Fund v. ATF, 984 F.3d 30, 34 (2d Cir. 2020) (quoting
Dorsey v. United States, 567 U.S. 260, 274 (2012)). While “an earlier
statute cannot bind a later Congress” that seeks to depart from the
background principle, id. (internal quotation marks omitted), the
“preferred meaning of a statutory provision is one that is consonant
1 See Oral Argument Audio Recording at 28:07.

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with the rest of the statute” and with “the whole statutory scheme,”
Auburn Hous. Auth. v. Martinez, 277 F.3d 138, 144 (2d Cir. 2002).
A
The aggregation provision establishes a background principle
according to which “[m]ultiple terms of imprisonment … shall be
treated for administrative purposes as a single, aggregate term of
imprisonment.” 18 U.S.C. § 3584(c). Courts have recognized that the
“administrative purposes” referenced in § 3584(c) include the BOP’s
administration of other types of sentencing credits, such as time-
served credits (§ 3585), good-time credits (§ 3624), and residential
drug-abuse program credits (§ 3621). See United States v. Martin,
974 F.3d 124, 136 (2d Cir. 2020) (holding that the aggregation
provision applies to time-served credits under § 3585); Chambers v.
Warden Lewisburg USP, 852 F. App’x 648, 650 (3d Cir. 2021) (holding
that the aggregation provision applies to good-time credits under
§ 3624); Moreno v. Ives, 842 F. App’x 18, 21 (9th Cir. 2020) (holding that
the aggregation provision applies to residential drug-abuse program
credits under § 3621); see also United States v. LaBonte, 520 U.S. 751, 758
n.4 (1997) (noting that §§ 3585, 3621, and 3624 “fall[] within
[§ 3584(c)’s] ‘administrative purposes’ carve-out”).
In light of this legal background, we conclude that the
aggregation provision applies to the BOP’s administration of the FSA
time credit program. The BOP is charged with administering the FSA
time credit program, and for that reason its implementation of
§ 3632(d)(4)(D) is an “administrative purpose” for which multiple
terms of imprisonment are to be treated as a single, aggregate term.
The text of § 3632(d)(4)(D) is consistent with that understanding.
Section 3632(d)(4)(D) provides that a prisoner who “is serving a
sentence for” an ineligible offense may not earn FSA time credits.

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18 U.S.C. § 3632(d)(4)(D). That phrase can be read to refer to an
individual sentence for an individual conviction. But the phrase can
also be read to refer to an aggregate term of imprisonment.2 In the
context of the aggregation provision and precedent holding that the
aggregation provision applies to other sentencing credit programs,
the phrase “is serving a sentence for” is best understood as referring
to the prisoner’s aggregate term of imprisonment.
B
Giovinco argues that the determination of a prisoner’s
eligibility to earn FSA time credits is legislative—not
administrative—because Congress set the eligibility criteria by statute
and made the awarding of credits mandatory. See 18 U.S.C.
§ 3632(d)(4) (“A prisoner, except for an ineligible prisoner under
subparagraph (D), … shall earn time credits as follows.”). He
observes that other sentencing credit programs—such as residential
drug-abuse program credits under § 3621—delegate to the BOP the
authority to determine the eligibility of a prisoner. See Moreno,
842 F. App’x at 21 (“[C]ompletion of RDAP does not automatically
mean that an inmate is eligible for the sentence reduction incentive,
and Congress delegated the authority to make those determinations
2 We note that in 18 U.S.C. § 3584(c), Congress used the terms “sentence”
and “term of imprisonment” interchangeably. The heading of § 3584 is
“Multiple sentences of imprisonment” and the caption of § 3584(c) is
“Treatment of multiple sentence as an aggregate” while § 3584(c) itself
refers to “terms of imprisonment.” Pub. L. No. 98-473 (Oct. 12, 1984), 98 Stat
1837, 2000 (capitalization omitted); see Yates v. United States, 574 U.S. 528,
540 (2015) (“The title of a statute and the heading of a section are tools
available for the resolution of a doubt about the meaning of a statute.”)
(alteration omitted) (quoting Almendarez-Torres v. United States, 523 U.S.
224, 234 (1998)).

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to BOP.”); 18 U.S.C. § 3621(e)(1), (e)(5)(B)(i); see also id. § 3624(b)(1).
For this reason, he argues, the FSA time credit program is different
from the other sentencing credit programs to which the aggregation
provision has been held to apply.
We disagree. To administer the FSA, the BOP must determine
whether a prisoner meets the eligibility criteria set forth in
§ 3632(d)(4)(D). An agency’s implementation of statutory standards
is a regular feature of “the administrative work of executing a
statute’s mandate.”3 The aggregation provision directs that, when
implementing the statutory criteria, the BOP must aggregate a
prisoner’s sentence. If “Congress intended to depart from the
background principle” set by the aggregation provision and to direct
the BOP to apply the statutory criteria of § 3632(d)(4)(D) to each
individual sentence, it could have expressed that intention either
expressly or by fair implication in the FSA. Everytown, 984 F.3d at 39.
But it did not do so.
Our interpretation does not, as Giovinco suggests, improperly
alter the judicially imposed punishment for his crime. We recognize
that “sentences within judgments of conviction are imposed for
particular counts of conviction.” Martin, 974 F.3d at 135; accord United
States v. Young, 998 F.3d 43, 55 (2d Cir. 2021). In Martin, we
distinguished statutes that created sentencing credit programs for the
BOP to administer from statutes that authorized judicial resentencing.
We explained that while the implementation of a statutorily
authorized credit program qualifies as an administrative purpose,
judicial resentencing does not. We concluded that “courts’ judicial
decisions under § 3582 do not constitute an ‘administrative
3 Eli Nachmany, Deference to Agency Expertise in Statutory Interpretation,
31 Geo. Mason L. Rev. 587, 594 (2024) (internal quotation marks omitted).

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purpose,’” that “to so find would essentially rewrite the statute to
extend aggregation to all purposes,” and that therefore the
aggregation provision “provides no textual support for the position
that sentences may be aggregated for the purpose of resentencing.”
Martin, 974 F.3d at 137 (internal quotation marks omitted). As we
have previously emphasized, “[a]gencies are not courts.” Vera Punin
v. Garland, 108 F.4th 114, 125 (2d Cir. 2024) (quoting Garcia v. Garland,
64 F.4th 62, 70 (2d Cir. 2023)).
In this case, Congress has directed that—for the purpose of
administering a judicially imposed sentence—the BOP must
aggregate multiple terms of imprisonment. That “administrative
purpose” includes the implementation of the FSA time credit
program that may reduce the sentence. In reaching this conclusion,
we agree with every other circuit court to have considered the
question.4
4 See Martinez v. Rosalez, No. 23-50406, 2024 WL 140438, at *3 (5th Cir.
Jan. 12, 2024) (“We agree with the district court that aggregation in the
administrative context … was proper for purposes of FSA time credits.”);
Keeling v. Lemaster, No. 22-6126, 2023 WL 9061914, at *1 (6th Cir. Nov. 22,
2023) (“[C]ourts have consistently and correctly held that the calculation of
a prisoner’s sentence, and the awarding of credits that reduce the length of
that sentence, are administrative functions of the BOP subject to § 3584(c).
The district court therefore did not err in concluding that [the petitioner’s]
aggregated sentence precluded him from receiving earned time credit
under the FSA.”) (internal quotation marks and citation omitted); Sok v.
Eischen, No. 23-1025, 2023 WL 5282709, at *1 (8th Cir. Aug. 17, 2023) (“[W]e
conclude that … the BOP correctly treated [the petitioner’s] prison terms as
a single aggregated sentence for all 3 offenses, and therefore properly
denied him FSA credits.”); Teed v. Warden Allenwood FCI Low, No. 23-1181,
2023 WL 4556726, at *2 (3d Cir. July 17, 2023) (“Calculation of an inmate’s
term of imprisonment is widely recognized as an ‘administrative purpose’
well within the BOP’s responsibilities as charged by Congress. Accordingly,

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II
The parties here agree that, even if the statute were ambiguous,
the district court improperly applied Chevron deference and should
have applied Skidmore deference. Because we conclude, without
deference, that the best reading of the applicable statutes required the
BOP to aggregate Giovinco’s sentence to determine his eligibility for
FSA time credits, we need not decide whether the BOP’s
interpretation warrants some level of deference.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
here, we view BOP’s aggregation of [the petitioner’s] sentence and FSA
ineligibility designation to be proper.”) (citation omitted).

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