No credit for time on improper release from jail

US v. Grant:  In this case, Briceton Grant pled guilty to an information that charged him with possession of PCP, and received a sentence that included one year of supervised probation.   A mere four days later, Grant received an additional charge of PWID marijuana and a schedule I/II drug.  His PO filed a petition to revoke his supervised probation.  A magistrate judge found Grant in violation and revoked his probation, and remanded Grant to the marshals for 15 days of incarceration as punishment for the violation.

The marshals erroneously allowed Grant to be released eleven days too early.  Grant’s attorney contacted the government to determine how to proceed given the error.  Grant’s PO filed a petition to have Grant remanded to serve the additional days, and Grant surrendered to the marshals.  Grant filed a motion to receive credit for the 10 days during which time he was mistakenly release.  After the magistrate denied the motion, Grant filed the instant appeal.

According to the Fourth Circuit, there appeared to have been a federal common law right to credit for time erroneously spent at liberty that dated back to the 1930s, and since then, some sister circuits have recognized a federal common law right to credit for time erroneously spent at liberty.  Some circuits award this credit when the government has been shown to have acted maliciously.  Other courts award credit whenever the government errs, even if it was merely negligent.  The Court notes that it is not certain at all that a federal common law right to credit for time erroneously spent at liberty currently exists.  Grant played no role in causing the premature release, and the government did not act with malice when it negligently released him.  Yet, the Fourth Circuit held that the district court did not abuse its discretion in denying Grant his credit for time erroneously at liberty because Grant had paid only 1/3 of his debt to society, he could serve his time on weekends to accommodate his employment, the ten days will not disrupt his life in a way that months or years of re-incarceration might do, and the government promptly recognized its mistake.  The Fourth Circuit affirmed the district court’s judgment.