           Case: 13-12016   Date Filed: 11/20/2013   Page: 1 of 10


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12016
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:04-cr-20245-CMA-4



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

GARY TUBBY,

                                                          Defendant-Appellant.

                       ________________________

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

                            (November 20, 2013)

Before HULL, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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       Gary Tubby, a federal prisoner, appeals pro se the district court’s denial of

his pro se “motion for review of plain error and correction of an otherwise illegal

sentence.” Tubby’s pro se motion, filed more than seven years after his sentence

was imposed, argued that his sentence should be reduced in order to credit properly

time he already had served in state custody on separate state charges. After

review, we affirm the district court’s denial of Tubby’s pro se motion.

                                    I. BACKGROUND

A.     Tubby’s State and Federal Convictions and Sentences

       In March 2004, Tubby was being held in Florida on pending state charges of

uttering a counterfeit instrument and other related offenses. 1 In May 2004, while

Tubby’s state charges were still pending, Tubby was transferred to federal custody

and arrested on federal charges relating to a large-scale check fraud conspiracy.

       In December 2004, Tubby pled guilty in federal district court to conspiracy

to pass fictitious obligations and to commit wire fraud, passing fictitious




       1
         These state charges stem from Tubby’s attempt to buy groceries using a counterfeit
check and false identification. Tubby was originally arrested on these state charges on March
19, 2003. However, he appears to have been released shortly thereafter, as he was arrested again
in May 2003 and in March 2004, each time on different state charges. After his March 2004
arrest, however, Tubby was held in state custody to face his original March 2003 state charges.
The state court’s ultimate sentence on the March 2003 charges was calculated from the March
2004 arrest date.
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obligations, wire fraud, and social security fraud. In March 2005, the district court

imposed a 125-month sentence, which was later reduced to 94 months in 2006. 2

       However, after his federal sentencing, Tubby was returned to state custody

on May 13, 2005. On June 21, 2005, the state court sentenced Tubby to 62 months

on his state charges, to run concurrent to his federal sentence and ordered that

Tubby’s state sentence be served in federal custody. On February 24, 2006, Tubby

was transferred to federal custody, but the Federal Bureau of Prisons (“BOP”)

returned Tubby to state custody on May 13, 2006 to first serve the remainder of his

state sentence.

       In April 2007, the state court vacated Tubby’s state sentence and imposed a

suspended sentence so that Tubby’s state and federal sentences could be served

concurrently in federal custody. On April 26, 2007, Tubby was again transferred

to federal custody and began serving his federal sentence. In calculating Tubby’s

federal sentence, the BOP denied Tubby’s request for a nunc pro tunc designation,

which would have given him credit for time served in state custody.

       A federal sentence begins when the defendant is received in federal custody

to begin serving his sentence. 18 U.S.C. § 3585(a). The BOP, however, has the


       2
        Tubby filed and then voluntarily dismissed his direct appeal of his federal sentence. In
2006, the district court granted the government’s Federal Rule of Criminal Procedure 35 motion
based on Tubby’s substantial assistance and reduced Tubby’s sentence to 94 months. In 2006,
Tubby filed a pro se § 2255 motion to vacate his sentence based on ineffective assistance of
counsel during his plea proceedings. The district court denied the § 2255 motion, and Tubby did
not appeal that ruling.
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discretion to retroactively designate a state facility as the place for service of a

federal sentence. See 18 U.S.C. § 3621(b); Barden v. Keohane, 921 F.2d 476, 478-

79 (3d Cir. 1990); BOP Program Statement 5160.05(9)(b)(4). If a defendant is

already serving a state sentence, this “nunc pro tunc” designation has the effect of

starting the federal sentence while the defendant is in state custody and running the

federal and state sentences concurrently.

B.    Pro Se Post-Conviction Motions

      Beginning in January 2008, Tubby filed a series of pro se motions arguing

that the BOP had improperly calculated the start date of his federal sentence by

failing to give him credit for time served in state custody. The district court denied

the first of these motions, a “Request for A Nunc Pro Tunc Designation” because

Tubby had not exhausted administrative remedies.

      A second pro se motion, titled a “Motion for Judicial Recommendation,”

was filed in June 2008. The district court denied this motion, again for failure to

exhaust administrative remedies.

C.    First § 2241 Petition

      In 2009, Tubby filed a pro se 28 U.S.C. § 2241 petition. Tubby’s § 2241

petition, like his previous pro se post-conviction motions, argued that the BOP had

improperly calculated his federal sentence. He also alleged that he had exhausted

his administrative remedies.


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      The district court denied Tubby’s § 2241 petition on the merits, concluding

that the BOP properly calculated Tubby’s federal sentence under 18 U.S.C. § 3585.

The district court found that the sentencing court’s judgment was silent as to

whether Tubby’s federal sentences should run concurrently to any future state

sentence, and, therefore, the BOP properly ran Tubby’s federal sentence

consecutively to Tubby’s state sentence. See 18 U.S.C. § 3584(a) (providing that

“[m]ultiple terms of imprisonment imposed at different times run consecutively

unless the court orders that the terms are to run concurrently”). The district court

further noted that the BOP had asked for the sentencing court’s recommendation,

and the sentencing court had responded that Tubby should not be given nunc pro

tunc designation based Tubby’s presentence investigation report and his offense

conduct.

      The district court further concluded that Tubby’s due process rights had not

been violated because a state court’s order that a federal sentence and a state

sentence should run concurrently is not binding on federal courts.

      Tubby’s subsequent appeal to this Court was dismissed for want of

prosecution.

D.    Additional Pro Se Post-Conviction Motions




                                             5
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       Between 2010 and 2012, Tubby filed several additional pro se motions in the

district court that continued to argue that he should be given credit for time served

in state custody. The district court denied all of these motions.

E.     Pro Se “Motion for Review of Plain Error and Correction of an

Otherwise Illegal Sentence”

       In 2013, Tubby filed the pro se motion that is the subject of this appeal. As

the basis for the motion, Tubby cited Federal Rule of Criminal Procedure 52(b).

This time, Tubby argued that the sentencing court had misapplied U.S.S.G.

§ 5G1.3(b) when it failed to order that his federal sentence run concurrently to his

state sentence.3 Tubby also contended that the sentencing court abused its

discretion by not recommending to the BOP that Tubby receive a nunc pro tunc

designation.

       The district court denied Tubby’s pro se motion. Tubby appealed. Although

Tubby’s notice of appeal was not filed within fourteen days of entry of the district

court’s order, as required by Federal Rule of Appellate Procedure 4(b), the

government affirmatively waived this issue in its appellate brief. See United States


       3
         Section 5G1.3(b) of the Sentencing Guidelines provides that when “a term of
imprisonment resulted from another offense that is relevant conduct to the instant offense of
conviction” and “was the basis for an increase in the offense level” under Chapters 2 or 3 of the
Sentencing Guidelines, the sentencing court “shall adjust the sentence for any period of
imprisonment already served on the undischarged term of imprisonment if the court determines
that such period of imprisonment will not be credited to the federal sentence by the Bureau of
Prisons,” and “the sentence for the instant offense shall be imposed to run concurrently to the
remainder of the undischarged term of imprisonment.” U.S.S.G. § 5G1.3(b).
                                                    6
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v. Frazier, 605 F.3d 1271, 1278 (11th Cir. 2010) (concluding that this Court had

jurisdiction to review an appeal that was filed past Rule 4(b)’s non-jurisdictional

filing deadline because the government affirmatively forfeited its objection to the

timeliness issue).

                                 II. DISCUSSION

      “The authority of a district court to modify an imprisonment sentence is

narrowly limited by statute.” United States v. Phillips, 597 F.3d 1190, 1194-95

(11th Cir. 2010). Under 18 U.S.C. § 3582(c), a district court may modify a

sentence only if: (1) the BOP files a motion and certain other conditions are met;

(2) a modification is expressly permitted by statute or Federal Rule of Criminal

Procedure 35; or (3) the defendant was sentenced based on a guidelines range that

subsequently was lowered by the Sentencing Commission and other requirements

are met. See 18 U.S.C. § 3582(c); Phillips, 597 F.3d at 1194-95. Thus, “absent

other express statutory authority, modification of an imprisonment sentence can

only be done pursuant to Rule 35.” Phillips, 597 F.3d at 1195. Furthermore, the

time for filing a Rule 35 motion is jurisdictional and “outside of Rule 35(c) there

exists no ‘inherent authority’ for a district court to modify a sentence.” Id. at 1196-




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97 (brackets and footnote omitted); see also United States v. Diaz-Clark, 292 F.3d

1310, 1315-18 (11th Cir. 2002).4

       Tubby’s pro se “Motion for Review of Plain Error and Correction of an

Otherwise Illegal Sentence” does not fall within any of the categories of authorized

§ 3582(c) motions. The motion was not filed by the BOP or based on an

amendment to the Sentencing Guidelines. Given that the motion was not filed

within seven days of Tubby’s March 2005 sentence, it was not permitted by Rule

35(a). See Fed. R. Crim. P. 35(a) (2003);5 Diaz-Clark, 292 F.3d at 1315-19.

       While a district court is required to “look behind the label” of a pro se

motion, United States v. Jordan, 915 F.2d 622, 624 (11th Cir. 1990), there is no

statute or rule permitting Tubby to challenge his federal sentence under the

circumstances of this case. Tubby cited Rule 52(b) as the basis for his motion.

However, Rule 52(b) simply defines the plain error standard of review and does

not provide a vehicle for the district court to modify Tubby’s sentence.

       Further, the district court could not have construed Tubby’s pro se motion as

a § 2255 petition. Tubby already had filed one § 2255 motion. Before the district

court could consider a second § 2255 motion, Tubby was required to seek

       4
        We review de novo whether a district court has jurisdiction to modify a defendant’s
sentence. See Phillips, 597 F.3d at 1194 n.9.
       5
        In 2009, Rule 35(a) was amended to provide that a court may correct a sentence within
fourteen days after sentencing. Even if the 2009 amendment applies in this case, Tubby’s
motion was filed seven years after his sentencing and well beyond the time provided in either
version of Rule 35(a).
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authorization from this Court, which he did not do. See Farris v. United States,

333 F.3d 1211, 1216 (11th Cir. 2003); see also 28 U.S.C. § 2255(h). “Without

authorization, the district court lacks jurisdiction to consider a second or successive

petition.” Farris, 333 F.3d at 1216.

      Tubby’s sentencing calculation claim probably would be cognizable in a

§ 2241 petition. United States v. Williams, 425 F.3d 987, 990 (11th Cir. 2005)

(explaining that an inmate’s claim relating to credit for time served is properly

brought in a § 2241 petition). However, even if the district court had construed

Tubby’s pro se motion as a § 2241 petition, the district court would have been

unable to address Tubby’s sentencing calculation claim because it already had been

denied on the merits in his first § 2241 proceeding.

      Tubby couches his present pro se motion in terms of the district court’s

miscalculation of the guidelines. But, the crux of his argument remains that the

district court and the BOP failed to give him credit for time served in state custody.

This argument is the same argument Tubby made in his first § 2241 petition, which

the district court denied on the merits. A successive § 2241 petition is subject to

dismissal where it raises the same claims that were dismissed on the merits in the

first § 2241 petition. Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1352




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(11th Cir. 2008). Thus, had Tubby’s present pro se motion been construed as a

§ 2241 petition, the district court would have been required to dismiss it. 6

       In sum, we conclude that because the district court had no authority to

modify Tubby’s seven-year-old sentence, the district court did not err in denying

Tubby’s pro se “Motion for Review of Plain Error and Correction of an Otherwise

Illegal Sentence.”

       AFFIRMED.




       6
          Even if we were to construe Tubby’s pro se motion as a § 2241 petition, the government
notes that when Tubby filed his current pro se motion in the Southern District of Florida, he was
incarcerated in the Western District of Texas. Thus, at the time the motion was filed in April
2013, the district court would have lacked jurisdiction to review the motion as a § 2241 petition
for this reason as well. See Rumsfeld v. Padilla, 542 U.S. 426, 443, 124 S. Ct. 2711, 2722
(2004); 28 U.S.C. § 2241(d).
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