                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                             MAY 4 2000
                                  TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 STEVEN DUANE CATHCART,

               Petitioner - Appellant,                   No. 99-6424
          v.                                                W.D. Okla.
 UNITED STATES BUREAU OF                           (D.C. No. 97-CV-1890)
 PRISONS,

               Respondent - Appellee.




                             ORDER AND JUDGMENT         *




Before BALDOCK , HENRY , and LUCERO , Circuit Judges.            **




      Mr. Steven Cathcart, a federal inmate appearing pro se, appeals the district

court’s order dismissing his petition for habeas relief under 28 U.S.C. § 2241.

Mr. Cathcart argues that he is entitled to credit toward his federal sentence and



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

      **
          After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is, therefore, ordered submitted without oral argument.
his subsequently imposed state sentence for time spent in federal custody. After

reviewing the record and Mr. Cathcart’s arguments, we grant Mr. Cathcart’s

motion to proceed in forma pauperis and affirm the district court.

       We have reviewed the record with regard to Mr. Cathcart’s history of

incarceration in state and federal facilities. The magistrate judge’s thorough

Report and Recommendation accurately portrays these facts,           see Rec. doc. 37, at

3-5 (Report and Recommendation, filed Sept. 14, 1999), and we adopt those facts

as though set forth herein.

       Essentially, Mr. Cathcart was sentenced on separate occasions for various

state and federal violations. Because of an administrative error, Mr. Cathcart was

transferred to federal custody in 1993 while he was in the process of discharging

four state sentences. When the error was discovered in 1994, Mr. Cathcart was

transferred back to custody of the State of Texas to complete the service of his

state sentence. The time served in federal custody from 1993 through 1994 was

credited to his state sentence. Mr. Cathcart does not dispute this sentence credit.

       What Mr. Cathcart does dispute is the Bureau of Prison’s refusal to credit

time spent in federal custody to his federal sentence, in addition to his state

sentence. He contends that, as a result, he is serving his federal sentence in

installments. Because Mr. Cathcart is proceeding pro se, we liberally construe his

petition. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972);         Collins v. Cundy ,


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603 F.2d 825, 827 (10th Cir. 1979). We review the district court’s decision

whether to impose a consecutive or concurrent sentence for an abuse of

discretion. See United States v. Williams , 46 F.3d 57, 58 (10th Cir. 1995).

      The relevant statute reads:

             If multiple terms of imprisonment are imposed on a
             defendant at the same time, or if a term of imprisonment
             is imposed on a defendant who is already subject to an
             undischarged term of imprisonment, the terms may run
             concurrently or consecutively, except that the terms may
             not run consecutively for an attempt and for another
             offense that was the sole objective of the attempt.
             Multiple terms of imprisonment imposed at the same time
             run concurrently unless the court orders or the statute
             mandates that the terms are to run consecutively. Multiple
             terms of imprisonment imposed at different times run
             consecutively unless the court orders that the terms are to
             run concurrently .

18 U.S.C. § 3584(a) (emphasis added). “The plain meaning of this provision is

that multiple terms of imprisonment imposed at different times will normally run

consecutively, unless the district court affirmatively orders that the terms be

served concurrently.”   Williams , 46 F.3d at 59.

      Mr. Cathcart contends that the sentencing court was unaware of the state

charges and could not have foreseen his future state sentence. As a result, he

maintains the sentencing court’s omission of an order that his sentences run

concurrently does not imply the sentencing court meant to preclude the federal

sentence from running concurrently with the state sentence.


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       We disagree. The record indicates that the sentencing court was aware of

the pending state charges and did not order that Mr. Cathcart serve the federal

sentence concurrently with the state sentence. Because the sentencing court did

not include an affirmative order regarding concurrent sentences, the sentences run

consecutively.

       Mr. Cathcart also contends that he has not received credit for time served.

Because Mr. Cathcart’s offenses occurred after November 1, 1997, the issue of

jail time credit is governed by 18 U.S.C. § 3585(b),   1
                                                           which provides:

               (b) Credit for prior custody.--A defendant shall be given
              credit toward the service of a term of imprisonment for any
              time he has spent in official detention prior to the date the
              sentence commences--

                    (1) as a result of the offense for which the sentence
              was imposed; or

                     (2) as a result of any other charge for which the
              defendant was arrested after the commission of the offense
              for which the sentence was imposed;    that has not been
              credited against another sentence .

18 U.S.C. § 3585(b) (emphasis added);      see United States v. Wilson , 503 U.S. 329,

337-38 (1992) (Stevens, J., dissenting) (stating that section 3585(b) “gives the

convicted defendant a right to have his term of imprisonment shortened by the



       1
         18 U.S.C. § 3568 was repealed and replaced by 18 U.S.C. § 3585
(effective November 1, 1987). Section 3585 is applicable to offenses committed
on or after November 1, 1987.

                                            -4-
amount of time he has already spent in federal or state custody as a result of his

offense, provided that the time has not already been credited against another

sentence”).

      As noted above, Mr. Cathcart does not dispute that the time he served in

federal custody from 1993 through 1994 has been credited to his state sentences.

Mr. Cathcart began serving his federal sentence on August 5, 1997, following the

completion of his incarceration for his state sentences. Mr. Cathcart is in the

same position he would have been had he served the full state sentence in state

custody.

      For the reasons discussed above, the district court’s denial of Mr.

Cathcart’s 28 U.S.C. § 2241 petition for a writ of habeas corpus is AFFIRMED.



                                       Entered for the Court,



                                       Robert H. Henry
                                       Circuit Judge




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