     Case: 15-40116      Document: 00513300534         Page: 1    Date Filed: 12/09/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40116
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         December 9, 2015
JOSE SALOMON ARREOLA-AMAYA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner-Appellant

v.

FEDERAL BUREAU OF PRISONS; LORETTA LYNCH, U. S. ATTORNEY
GENERAL,

                                                 Respondents-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 9:13-CV-213


Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jose Salomon Arreola-Amaya, currently Texas prisoner # 1292378,
appeals the district court’s denial of his 28 U.S.C. § 2241 petition, in which he
challenged the refusal of the Federal Bureau of Prisons (BOP) to grant him
credit against his 51-month federal sentence for the time he has spent in
federal and state custody since his arrest in May 2003. He maintains that he



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 15-40116

was in exclusive federal custody for most of the time prior to and for
approximately two months after his federal sentencing, until he was
transferred to state custody for revocation proceedings.         Arreola-Amaya
contends that because there was no outstanding state sentence at the time of
his federal sentencing proceedings, the BOP erred in considering 18 U.S.C.
§ 3584(a) in its decision not to award him credit for the time he has spent in
state custody after the revocation proceedings. In addition, he maintains that
the state court lacked jurisdiction to revoke him and that the State breached
the plea agreement. We review the legal conclusions of the district court de
novo and its factual findings for clear error. Free v. Miles, 333 F.3d 550, 552
(5th Cir. 2003).
      Section 2241 is the proper procedural vehicle for challenging the
execution of a federal sentence or for obtaining credit for prior custody. Jeffers
v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001); United States v. Garcia-
Gutierrez, 835 F.2d 585, 586 (5th Cir. 1988). However, a challenge to the
validity of a state conviction or sentence must be brought pursuant to 28 U.S.C.
§ 2254. See Felker v. Turpin, 518 U.S. 651, 662 (1996). Arreola-Amaya has a
pending § 2254 application in which he challenges the validity of the state
proceedings. Accordingly, we decline to consider his challenges to the propriety
of the Texas revocation proceedings.
      The undisputed facts show that Arreola-Amaya received credit toward
his state sentence for the time he spent in federal and state custody up until
the date of his federal sentencing. The BOP thus properly denied crediting the
same time toward his federal sentence. See 18 U.S.C. § 3585(b); see also Leal
v. Tombone, 341 F.3d 427, 430 (5th Cir. 2003).
      According to Arreola-Amaya, at the time of his federal sentencing on July
29, 2004, he was exclusively in federal custody, and he was transferred to the



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                                 No. 15-40116

custody of the United States Marshals pending a transfer to a BOP facility;
however, on September 18, 2004, he was transferred to state custody for the
revocation proceedings. Under § 3585(a), a federal sentence “commences” on
the date the defendant is placed in custody awaiting transportation to an
official detention facility. Based on Arreola-Amaya’s contentions, therefore,
his federal sentence “commenced” following his sentencing on July 29, 2004,
and he should have received credit against his sentence beginning at that time,
even if he received credit against his state sentence. See Cain v. Menifee, 269
F. App’x 420, 425 & n.5 (5th Cir. 2008); Free, 333 F.3d at 552. Accordingly, the
judgment is vacated to the extent that the district court determined, based on
Arreola-Amaya’s admissions, that the federal sentence had not commenced at
the time of the federal sentencing and that thus he was not entitled to credit
under § 3585(b). However, because the respondent did not file an answer in
the district court, it is not clear whether the BOP has already provided Arreola-
Amaya credit for the time he spent in exclusive federal custody following his
federal sentencing or whether Arreola-Amaya was not in fact exclusively in
federal custody at that time. Cf. United States v. Brown, 753 F.2d 455, 456
(5th Cir. 1985) (per curiam) (indicating that if a defendant in state custody was
merely “on loan” to federal officials for sentencing purposes, he remained in
state custody during the federal proceedings). Thus, we remand this issue to
the district court for further consideration in accordance with this opinion.
      A different analysis applies once Arreola-Amaya was transferred to state
custody on September 18, 2004. If in fact Arreola-Amaya’s federal sentence
commenced in July 2004, he does not warrant credit for the time spent in
custody once he was transferred to state custody because the interruption of
his federal sentence does not affect the total time served. See Free, 333 F.3d
at 555. Arreola-Amaya maintains that his sentence has in fact been extended



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                                 No. 15-40116

by the BOP’s refusal to grant him credit because if he had been returned to the
BOP following his state sentencing, Texas officials would have placed a
detainer on him and he would have received credit against his state sentence
for the time spent in federal custody. This argument relies upon state case law
addressing a Texas defendant’s right at sentencing to receive credit for all time
served with respect to the case. See Ex Parte Bynum, 772 S.W.2d 113, 114-116
(Tex. Crim. App. 1989). Arreola-Amaya cites to no authority for the proposition
that a Texas prisoner would receive credit against a state sentence which was
ordered to run consecutively to the federal sentence, based solely on the
issuance of a post-sentencing detainer.
      To the extent that Arreola-Amaya complains that the district court took
§ 3584(a) into account, given the fact that the state sentence did not exist at
the time of the federal sentencing, the district court still had the authority to
order the federal sentence to run consecutively to the as-yet-unimposed state
sentence. See Setser v. United States, 132 S. Ct. 1463, 1468-70 (2012). By
contacting the district court for its opinion on concurrent sentences, the BOP
fulfilled its obligation to consider Arreola-Amaya’s request for a nunc pro tunc
designation of the state prison as the place of confinement for the federal
sentence.   In light of the district court’s indication of a preference for
consecutive sentences, the BOP did not abuse its discretion in denying the
request for a nunc pro tunc designation. See 18 U.S.C. § 3621(b).
      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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