           Case: 14-14785   Date Filed: 06/08/2015   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-14785
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:13-cv-24413-FAM



BRIAN ALDRICH DUPREE,

                                                          Petitioner-Appellant,

                                 versus

WARDEN, FCI MIAMI,


                                                         Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                              (June 8, 2015)

Before TJOFLAT, WILSON and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
               Case: 14-14785     Date Filed: 06/08/2015    Page: 2 of 4


      Brian Dupree, a federal prisoner, appeals the denial of his petition for a writ

of habeas corpus. 28 U.S.C. § 2241. Dupree argued that he was entitled to credit

toward his federal sentence for time he had served in state custody for a separate

state offense. The district court adopted the report and recommendation of a

magistrate judge to deny Dupree’s petition. Dupree challenges the denial of his

objections to the report as untimely; the denial of his petition; the treatment of his

motion for summary judgment as a motion for reconsideration; and the summary

denial of his second motion for reconsideration. We affirm.

      Dupree argues that the district court erred by denying as untimely the

objections that he filed with prison officials within 14 days after issuance of the

report and recommendation, see Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379

(1988), but any error was harmless. The district court reviewed de novo the record

and determined that the Bureau of Prisons calculated Dupree’s sentence correctly.

See Braxton v. Estelle, 641 F.2d 392, 397 (5th Cir. 1981).

      The district court did not err in its ruling on the merits. Dupree was not

entitled to credit toward his federal sentence for the time he had served in state

custody because he had already received credit toward his state sentence. See 18

U.S.C. § 3585(b)(2) (“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


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sentence.”). Dupree argues that he can nonetheless receive credit toward his federal

sentence under Willis v. United States, 438 F.2d 923 (5th Cir. 1971), but that

decision interpreted a statute that allowed federal defendants to receive credit

toward a federal sentence regardless of whether it had been credited toward

another sentence. Id.at 925. The statute that Willis applied, 18 U.S.C. § 3568, was

amended in 1987, see id. § 3585(b), to “ma[k]e clear that a defendant [can] not

receive a double credit for his detention time.” United States v. Wilson, 503 U.S.

329, 337, 112 S. Ct. 1351, 1355–56 (1992); see also Dawson v. Scott, 50 F.3d 884,

887 n.4 (11th Cir. 1995).

      The district court did not abuse its discretion when it treated Dupree’s

motion for summary judgment as a motion for reconsideration. After issuance of

the report and recommendation, Dupree moved for summary judgment on the

ground that the government failed to dispute that he was entitled to relief under

Willis, but that issue had already been addressed by the magistrate judge. In the

report, the magistrate judge mentioned that the government had “completely failed

to address” the Willis argument and then rejected that argument as lacking merit.

Based on those events, the district court was entitled to “ignore the legal label that

[Dupree] attache[d] to [his] motion and recharacterize” it as a motion for

reconsideration, which “better correspond[ed] [to its] substance . . . and its

underlying legal basis.” Castro v. United States, 540 U.S. 375, 381–82, 124 S. Ct.


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786, 791–92 (2003). The district court reasonably construed Dupree’s motion as

seeking reconsideration of his argument for relief under Willis.

      We also lack jurisdiction to consider Dupree’s challenge to the denial of his

second motion for reconsideration. Dupree failed to mention the order denying his

second motion in his original notice of appeal or in his amended notice. See

Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1528 (11th Cir. 1987).

      We AFFIRM the denial of Dupree’s petition for a writ of habeas corpus.




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