
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 96-1938                                    UNITED STATES,                                      Appellee,                                          v.                                    GARY JOHNSON,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Lynch, Circuit Judges.                                            ______________                                 ____________________               Gary Johnson on brief pro se.               ____________               Sheldon Whitehouse, United States Attorney, and Edwin J.               __________________                              ________          Gale, Assistant United States Attorney, on brief, for appellee.          ____                                 ____________________                                                    October 25, 1996                                 ____________________                 Per Curiam.  Gary Johnson, who is currently serving a 37                 __________            month sentence  in federal prison, appeals  from the district            court's denial of his pro se  motion for  immediate release.             First,  he argues  that  under  18  U.S.C.    3584(a),  which            provides in relevant part that terms of imprisonment "may not            run consecutively for an attempt and for another offense that            was the sole  objective of  the attempt," he  is entitled  to            immediate release.  This argument  is based on the  erroneous            assumption  that the  federal crime  of possessing  a firearm            with  an  obliterated serial  number and  the state  crime of            robbery   constitute "an  attempt" and "another  offense that            was the  sole objective  of the  attempt" under  the statute.            However, these  are distinct  crimes for which  the sentences            may run consecutively.                 Second, Johnson  argues that under 18  U.S.C.   3585(a),            his  federal  sentence began  to run  while  he was  in state            custody,  because that  statute  does not  specifically state            that  a  prisoner must  be in  federal  custody to  cause the                                           _______            sentence  to begin running.  This argument does not take into            account all of  the pertinent portions of the  statute, which            provides that "[a] sentence  . . . commences on  the date the            defendant  is received  in custody  . .  . [at]  the official            detention facility  at which the  sentence is to  be served."            Because  the federal  government  never designated  the state            prison as "the  official detention facility"  where Johnson's                                         -2-            federal sentence  would be  served, his federal  sentence did            not begin to run until he reached the federal prison that was            designated as his "official detention facility."                 Third, Johnson argues that under 18 U.S.C.  3585 (b)  he            is  entitled to  have  the time  he  spent in  state  custody            credited toward his federal sentence.  The statue provides in            relevant part: "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  . . . that  has not been  credited against another            sentence."   Crediting the time Johnson spent in state prison            against  his federal  sentence would  be improper  under this            statute because Johnson's detention at the state facility was            credited against his state sentence.                 Finally,  Johnson argues  that the  state court  had the            power  to  order his  federal  and  state  sentences  to  run            concurrently.   However,  a state  court does  not have  this            power  where, as  here, the  state sentence  is to  be served            first.   Any  error that  occurred in  this case  occurred in            state court, while the federal court acted entirely properly;            any  remedy  for  this  harm would  involve  Johnson's  state            sentence  rather  than his  federal  sentence.   Johnson  has            already finished  serving his  state sentence.   We therefore            summarily  affirm   the  district  court's   order  and  deny            appellant's motion for immediate release.                                         -3-                 Affirmed. Loc. R. 27.1.                 ________
