     Case: 12-40899       Document: 00512428687         Page: 1     Date Filed: 11/04/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         November 4, 2013
                                     No. 12-40899
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

RUBEN TORRES,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:10-CR-1169-3


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:*
       Ruben Torres pleaded guilty to one count of possession with intent to
distribute more than 100, but less than 1,000, kilograms of marijuana. He was
sentenced, inter alia, to 57 months’ imprisonment.
       Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40899

sentence to impose. Gall v. United States, 552 U.S. 38, 48-51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines is
reviewed de novo; its factual findings, only for clear error. E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005).
      Torres contends the court, in calculating the applicable advisory
Guidelines sentencing range, should have made an adjustment under Guideline
§ 3B1.2 for his claimed minor role in the offense. Along that line, a ruling on a
preserved minor-role objection is a finding of fact, reviewed only for clear error.
United States v. Silva-De Hoyos, 703 F.3d 843, 846 (5th Cir. 2012).
      Torres maintains the court should have sentenced him based solely on his
offense conduct and should not have focused on his prior adult, drug-related,
criminal conduct that did not result in convictions. Torres does not dispute the
fact of such conduct or the reliability of the Pre-Sentence Investigation Report’s
recitation of such conduct. The court was allowed to consider this information.
See United States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013).
      The pertinent question is whether the court clearly erred in finding Torres
was not a minor participant in the crime for which he was held accountable. See
United States v. Perez-Solis, 709 F.3d 453, 471 (5th Cir. 2013) (upholding district
court’s decision to not grant minor participant reduction where appellant had
driven cooler of methamphetamine and aided in unpacking drugs). Torres
admits he conspired with his co-defendants to transport the 456 kilograms of
marijuana seized in this case. Moreover, he admits he introduced one of his co-
defendants to the confidential source who secured the driver to transport that
marijuana. On the other hand, Torres chronicles the activities of his two co-
defendants to support his claim for a minor-role adjustment. Though Torres’ co-
defendants “may have been more involved” than Torres, this does not establish
Torres was peripheral to the advancement of the criminal activity. Id. (emphasis
added). On this record, the court did not clearly err in finding a § 3B1.2

                                         2
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                                 No. 12-40899

reduction was not warranted. See, e.g., Silva-De Hoyos, 702 F.3d at 846 (finding
appellant’s activities “not minimal when the elements of [the] offenses are
examined”).
      Torres also contends the court erred by not giving him credit for time
served prior to sentencing. Torres was arrested 27 July 2010, on an unrelated
state drug charge and was held in state custody in Hidalgo County Jail. On 15
September 2010, he appeared in federal district court in the instant case
pursuant to a writ of habeas corpus ad prosequendum. According to Torres, he
was in federal custody beginning 15 September 2010, and the court should have
given him credit toward his federal sentence for the time he served in federal
custody.
      First, it is not clear, under these circumstances, Torres was in federal
custody.   See United States v. Brown, 753 F.2d 455, 456 (5th Cir. 1985)
(determining an appellant remained in state custody even while on temporary
loan to federal authorities pursuant to writs of habeas corpus ad prosequendum).
Second, the court is not authorized under 18 U.S.C. § 3585, the statute upon
which Torres relies, to compute time-served credit; such credit is awarded
through the Bureau of Prisons (BOP) by the Attorney General. United States v.
Wilson, 503 U.S. 329, 333-35 (1992); United States v. Setser, 607 F.3d 128, 132
(5th Cir. 2010). A prisoner may seek judicial review of the BOP’s computation
of his sentence only after he has exhausted his administrative remedies. Setser,
607 F.3d at 133. Torres has not exhausted such remedies.
      Finally, the court considered the 18 U.S.C. § 3553(a) sentencing factors
and explained its reasons for determining the 57-month within-Guidelines
sentence was appropriate, regardless of whether Torres ever received credit for
time already spent in custody. In that regard, Torres has not shown the
requisite abuse of discretion.
      AFFIRMED.



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