First Step Act Time Credits: Fourth Circuit Weighs In

Since the First Step Act of 2018 became law, one of the most vexing issues has been what inmates inside the BOP are eligible to earn time credits. The BOP has taken years to issue guidance which is not always helpful or accurate. Often times, incarcerated citizens report that they are not being given First Step Act Earned Time Credits (commonly called ETCs) even though they should be eligible to receive them.

One recurring issue that inmates report is that the BOP will deny them ETCs based on conduct that might appear in their Pre-Sentence Investigation Report or Indictment, but that was not actually part of the offense of conviction. Put another way, do inmates become “ineligible” to gain Earned Time Credits under the First Step Act if they are first charged with a disqualifying crime, but later plead guilty to something else?

This is the scenario that the Fourth Circuit recently addressed in a case called Valladares v. Ray, case number 23-6932 (4th Cir. February 25, 2025). We will cover how the Fourth Circuit Court of Appeals interpreted the First Step Act of 2018, why Valladares is an important case, and what it might mean for your loved one in this article below.

Earned Time Credits: Why do they even matter?

It’s honestly simple: Earned Time Credits under the First Step Act of 2018 can help your loved one get out of prison earlier. Period. The United States Sentencing Commission has some really good resources on how ETCs are accrued, what the various terms mean in the Earned Time Credit space, and how these credits are applied. You can click here for a good primer on Earned Time Credits and the First Step Act.

The First Step Act created a system where many incarcerated invidicals can earn time credits for their participation in certain “Evidence Based Recidivism Reduction Programming” or certain “Productive Activities” under the law. Under 18 U.S.C. Section 3632(d)(4), these Earned Time Credits or ETCs may later be applied toward early release from the secure custody of the Federal Bureau of Prisons to either a halfway house, home confinement, or early supervised release.

FSA Earned Time Credits are distinct and separate from statutory good conduct time. For example, every inmate, no matter the sentence they are serving (unless life), may earn up to 54 days of good conduct time (GTC) per year of incarceration. This is why many people calculate BOP time at 85% of the total sentence. See 18 U.S.C. Section 3624 (describing good conduct time calculations). 

Earned Time Credits under the 2018 First Step Act are also different than time off of a sentence that an inmate may earn for completing the Residential Drug Abuse Treatment Program (“RDAP”) under 18 U.S.C. Section 3621(e). RDAP allows inmates who qualify and complete a rigorous program to earn up to 1-year off their sentence, but that is in addition to First Step Act Earned Time Credits.

There are also a number of other authoritites that might be used to shorten an individual’s sentence which are beyond the scope of this blog. Some of those include: 1) discretionary pre-release custody authority under 18 U.S.C. Section 3624(c) (halfway house or home confinement); 2) elderly and terminally-ill home detention authority under 34 U.S.C. Section 60541(g) (elderly offender home detention pilot program); and (3) CARES Act home detention authority under section 12003(b)(2) of the Coronavirus Aid, Relief, and Economic Security Act.

First Step Act Earned Time Credits accrue on a 30-day rolling basis and in general may result in up to 12-months off of an incarcerated person’s sentence. That’s why they matter.

Earned Time Credits: Eligible or Ineligible to Earn?

Generally speaking, the First Step Act was written in a way that starts from a position of eligibility. All inmates are eligible to gain Earned Time Credits under the First Step Act of 2018 unless their offense of conviction falls into one of 68 categories. The award of time credits is mandatory so long as the inmate is programming or participating in their productive activities. See 18 U.S.C. Section 3632(d)(4)(A).

“A prisoner, except for an ineligible prisoner under subparagraph (D), who successfully completes evidence based recidivisim reduction programming or productive activities shall earn time credits.“) (emphasis added).

As a result, generally speaking, unless you are serving a sentence for a conviction for one of the 68 “provisions of law” on this list, you are eligible to gain Earned Time Credits under the First Step Act. Note that the eligibility does not turn on offense conduct as set out in the PSR. Instead, the eligibility (with a few rare exceptions) is entirely based on the offense of conviction. However, this has not stopped the BOP from trying to use non-offense of conviction offense conduct (read: relevant conduct) to make people ineligible to gain Earned Time Credits.

One the the disqualifying convictions is for a drug charge under 21 U.S.C. Section 841 with a “death results” enhancement. That means anyone serving a drug sentence for an offense for “which death or serious bodily injury resulted from the use” of the drugs is ineligible to gain First Step Act Earned Time Credits. This was the provision at issue in Valladares. 

Valladares: Offense Conduct Does Not Drive ETC Eligibility

Robert A. Valladares was initially charged with distributing drugs resulting in death. This is commonly referred to as the “death results” enhancement. The death results enhancement would have given Mr. Valladares a mandatory minimum sentence of 20 years with a maximum of life. As part of his defense strategy, however, Mr. Valladares negotiated a plea to a lesser drug sentence without the “death results” enhancement which resulted in there being no mandatory minimum. His plea agreement recited the fact that the Government would have been able to prove the “death results” enhancement if the case went to trial.

For our purposes, what is important here is that without the death results enhancement, Mr. Valladares would be eligible to gain Earned Time Credits under the First Step Act of 2018 because 1) his offense was not disqualifying; and 2) he was not an organizer, leader, or manager under the PSR.

When Valladares arrived at the BOP he was shocked to learn that the BOP claimed he was ineligible to obtain ETCs under the First Step Act. Valladares challenged this decision. Importantly, he first proceeded through the administrative remedy process internally at the BOP. Once he exhausted his administrative remedies, he challenged the BOP’s refusal to grant him Earned Time Credits in federal district court utilizing a petition for habeas corpus under 28 U.S.C. Section 2241.

Valladares was pro se, meaning he did not have an attorney to help him with this complex 2241 process which is functionally a civil lawsuit against the government. As is all too common, Valladares lost his case in the U.S. District Court, likely in part due to the fact that he did not have the help of a skilled federal habeas lawyer. That is where counsel like the attorneys at Evergreen Attorneys would make a huge difference.

Thankfully, Valladares filed an appeal and was given an appointed attorney by the U.S Court of Appeals for the Fourth Circuit to help with the case. The Fourth Circuit described the issues before it like this:

“Because we find that Valladares was not convicted of the death-resulting enhancement, this hinges on whether a conviction of that enhancement is required for (lviii) to apply, even if the facts show that a death did result. As explained below, the unambiguous statutory language established that (lviii) only applies when a defendant is convicted of the death-resulting enhancement.”

BOP took the position that the “death resulting” language made Valladares ineligible because it was in the original indictment, his stipulated plea facts, and in the PSR. Valladares believed that the offense of conviction, no the relevant conduct drove eligibility for Earned Time Credits under the First Step Act. Who do you think won out?

The Fourth Circuit held that the statutory text made it clear that Valladares was eligible to earn time credits. The Fourth Circuit pointed out that there are two of the 68 categories which reference a broader factual inquiry into the underlying conduct for FSA Earned Time Credit eligibility. The Fourth Circuit also looked at the fact that the text of the FSA explicitly refers to sentencing enhancement ineligibility for organizer, leader, manager, and supervisors. So Congress clearly knew how to write a broader eligibility criteria if they wanted to do so.

Who Cares? BOP Taking Inconsistent Positions

All of the issues in the Valladares case may seem abstract or academic if your loved one has a different offense of conviction. Here is why Valladares has a broader impact. The Fourth Circuit spent over 2 pages and 3 footnotes gutting the BOP and explaining why the BOP’s determinations on First Step Act Credits are not worth any deference.

In fact, the Court of Appeals even collected multiple cases where they pointed out that the BOP was taking inconsistent position on Earned Time Credit eligibility in from of judges and sometimes in front of the same courts. This is important for people fighting for their Earned Time Credit nationwide, because now you can point to this opinion when going to court to make clear that it is the BOP who cannot get their story straight.

At rock bottom, Valladares matters because this decision will result in at least one man spending a year less in prison. At the 30,000 foot view, you have federal Circuit Courts of Appeal calling out the BOP for inconsistency and regulations that conflict with the plain text of the First Step Act of 2018.

Contact Evergreen Attorneys for Help with Earned Time Credits

Earned Time Credits under the First Step Act of 2018 are complicated. If you or your loved one thinks that Earned Time Credits are being wrongfully denied reach out to us today for a free consultation. You can call us at 303-948-1489 or email us at [email protected] today.