     Case: 09-50725     Document: 00511204064          Page: 1    Date Filed: 08/16/2010




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

                                                 FILED
                                                                           August 16, 2010
                                     No. 09-50725
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

ALLISON GOTAY-AVILES,

                                                   Petitioner-Appellant

v.

CLAUDE MAYE, Warden, FCI Bastrop,

                                                   Respondent-Appellee


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:08-CV-373


Before SMITH, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
        Allison Gotay-Aviles (Gotay), federal prisoner # 15596-069, appeals the
district court’s denial of his 28 U.S.C. § 2241 petition. Gotay argues that the
district court erred by concluding that the Bureau of Prisons (BOP) correctly
denied him presentence credit against his federal sentence for the time he spent
in federal and Puerto Rican custody between April 28, 1995, and October 21,
1999. He argues that the district court erred in applying United States v. Flores,
616 F.2d 840 (5th Cir. 1980), to reach this conclusion because it was decided

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-50725    Document: 00511204064 Page: 2        Date Filed: 08/16/2010
                                 No. 09-50725

prior to the Sentencing Reform Act of 1984. He also argues that the BOP’s
failure to grant presentence credit breached his plea agreement and was
contrary to the intent of the sentencing court.
      A defendant is given credit toward his term of imprisonment for any time
he spent in official detention prior to the commencement of his sentence “that
has not been credited against another sentence.” 18 U.S.C. § 3585(b). Gotay
does not dispute he was credited for the time he spent in custody between April
28, 1995, and October 21, 1999. Thus, pursuant to § 3585(b), Gotay is not
entitled to additional credit on his federal sentence. Moreover, a district court
does not have the authority under § 3585(b) to order a federal sentence to run
absolutely concurrently with a prior sentence. See United States v. Flores, 616
F. 2d at 841 (holding that a federal sentence cannot commence prior to the date
it is announced, even if it is made concurrent with a sentence already being
served).
      Gotay’s argument that the district court erroneously relied on Flores is
unavailing because this circuit has repeatedly relied on Flores after the
Sentencing Reform Act of 1984. See Miramontes v. Driver, 243 F. App’x 855, 856
(5th Cir. 2005); Natividad v. Haro, 181 F. App’x 499, 500 (5th Cir. 2006).
Finally, Gotay’s argument regarding the breach of the plea agreement is without
merit because his claim arose at or prior to sentencing, and he did not satisfy the
requirements of the “savings clause” of 28 U.S.C. § 2255(e). See Tolliver v.
Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000); Reyes-Requena v. United States, 243
F.3d 893, 901 (5th Cir. 2001). Accordingly, this claim is not properly raised in
a § 2241 proceeding. See Tolliver, 211 F.3d at 877-87. The judgment of the
district court is therefore AFFIRMED.




                                        2
