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April 24, 1991

TONYA DAVIS, Defendant

Louis F. Oberdorfer, United States District Judge.

The opinion of the court was delivered by: OBERDORFER



 Defendant Davis was arrested on August 13, 1990 on charges of distributing and possessing with intent to distribute a mixture or substance containing cocaine base. Although she was initially detained without bail, Magistrate Judge Attridge ordered her released from detention on the condition that she "return to custody for specified hours following release for employment, schooling, or other purposes." 18 U.S.C. § 3142(c)(1)(B)(xiii) (1988). Accordingly, on August 20, 1990, the District of Columbia Department of Corrections assigned Davis to the Washington HalfWay House for Women. Although she eventually pled guilty to the distribution count and was sentenced on January 25, 1991 to one year in a community confinement facility, Davis remained at the halfway house until April 23, 1991.

 At issue now is the amount of credit against her sentence Davis should receive for time spent at the halfway house. Davis contends that her entire stay at the halfway house should be credited. The Bureau of Prison, however, plans to credit her only for the approximately three months spent at the halfway house after sentencing.


 The Washington HalfWay House for Women "houses female offenders serving sentences and awaiting trial in the Superior Court and District Courts in Washington, D.C." Affidavit of Loretta Caldwell para. 1 (Defendant's Motion to Stay, Appendix at 5). Offenders serving sentences currently remain at the halfway house until the Bureau of Prisons directs them to report to a different facility. See id. The halfway house is, however, "awaiting approval from the Department of Justice, Bureau of Prisons, to provide community care facilities for female offenders sentenced in the United States District Court for the District of Columbia on a permanent full-time basis." Id. For offenders, like Davis, with a minimum term of imprisonment of ten months or less in their guideline range, "a sentence of probation . . . that substitutes . . . community confinement . . . for imprisonment" may be imposed. See United States Sentencing Commission, Guidelines Manual, § 5C1.1(c) (Nov. 1990). Prisoners serving longer sentences may also be assigned to halfway houses near the completion of their terms. See 18 U.S.C. § 3624(c).

 As a resident of the Washington HalfWay House for Women, Davis was confined to the premises from 6:00 p.m. each night until 6:00 a.m. the next morning. See Affidavit of Tonya Davis para. 2 (Defendant's Motion to Stay, Appendix at 2). At first, she was only permitted to leave the halfway house to travel to work; later she was given a limited number of passes to travel to other destinations. See id. Davis was never, however, able to travel anywhere she pleased. She could only leave the halfway house for previously authorized destinations, and, if she failed to abide by these limits, she was subject to loss of privileges or, if the unauthorized absence was greater than two hours, prosecution for escape with a criminal sanction of up to five years imprisonment. See Orientation Package at 6 - 8 (Defendant's Motion to Stay, Appendix at 10).

 The halfway house rules also limited Davis' freedom while inside the halfway house. Like all residents, she was required to provide urine specimens each week. See id. at 4; Davis Affidavit para. 3. The halfway house rules also prohibited the use of alcohol, sexual activities, entering the rooms of other residents, meeting with guests on the front or back property of the house, or talking on the telephone for more than fifteen minutes at one time. See Orientation Package at 8, 10; Memorandum from Teresa Davis to All Residents, May 19, 1988 at 1 (Defendant's Motion to Stay, Appendix at 21). Finally, under the halfway house rules, staff members could search Davis' property or her person upon request. See id. at 6.


 Before considering whether all the time that Davis spent subject to these restrictions should be credited against her sentence or only the time after sentencing, one preliminary matter must be considered. The Bureau of Prisons has a formal procedure for resolving inmate grievances. See 28 C.F.R. § 542 (1990). Normally, Davis would be required to exhaust that process and give the Bureau of Prisons a chance to reconsider its decision before her claims could be heard in federal court. However, because the requirement of administrative exhaustion is not jurisdictional, it can be waived by the Government. See, e.g., Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990); United States v. Woods, 888 F.2d 653, 654 (10th Cir. 1989), cert. denied, 494 U.S. 1006, 108 L. Ed. 2d 478, 110 S. Ct. 1301 (1990). In this case, the Government has not challenged Davis' claim for failure to exhaust her administrative remedies. Accordingly, any potential objections must be deemed waived. See Brown v. Rison, 895 F.2d at 535; United States v. Woods, 888 F.2d at 654.


 Under the Comprehensive Crime Control Act of 1984, a term of imprisonment commences "on the date the defendant is received in custody awaiting transportation to . . . the official detention facility at which the sentence is to be served." 18 U.S.C. § 3585(a). *fn1" Davis asserts, and the Government has not disputed, that under this provision her term of imprisonment began on January 25, 1991 when she was confined to the halfway house after her sentence was imposed. They disagree, however, on whether she should receive "credit toward the service of a term of imprisonment" for time spent in the halfway house before sentencing. Id. § 3585(b). *fn2" Specifically, they dispute whether the time spent at the halfway house before sentencing was spent "in official detention." See id.

 "To a normal English speaker, even to a legal English speaker, being forced to live in halfway house is to be held 'in custody.'" Ramsey v. Brennan, 878 F.2d 995, 996 (7th Cir. 1989). The pretrial detention rules seem to recognize this as well: They require defendants on work release to return "to custody for specified hours following release." 18 U.S.C. § 3142(c)(1)(B)(xiii) (emphasis added). Indeed, by apparently agreeing to grant Davis credit for the time spent at the halfway house after sentencing, the Bureau of Prisons implicitly determined that Davis was "in custody" there. See 18 U.S.C. § 3585(a). Because detention is "a holding in custody," Webster's Third New International Dictionary 616 (1971), the plain language of the statute strongly suggests the conclusion ...

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