                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                             FOR THE TENTH CIRCUIT                         December 27, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
CHARLES EDWARD LANE, JR.,

      Petitioner - Appellant,

v.                                                            No. 17-3165
                                                     (D.C. No. 5:17-CV-03040-JWL)
N. C. ENGLISH,                                                  (D. Kan.)

      Respondent - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
                  _________________________________

       Charles Edward Lane, Jr. is a prisoner in the United States Penitentiary in

Leavenworth, Kansas, serving a 262-month term of imprisonment for conspiracy to

distribute crack cocaine. See 21 U.S.C. §§ 846 and 841(b)(1)(A). He filed an application

for relief under 28 U.S.C. § 2241 in the United States District Court for the District of

Kansas, claiming that his expected release date had been incorrectly computed by the

United States Bureau of Prisons (BOP) because of various errors. The district court

denied the application, finding no error in the computation. On appeal, his sole

*
  After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
contention is that the district court erred in finding that he was not in custody from

November 15, 2005, through January 30, 2006, and therefore erred in not giving him

preconviction credit toward his sentence for that period of time. We have jurisdiction

under 28 U.S.C. §1291 and affirm.

       On appeal from a denial of a § 2241 application, we review legal issues de novo

and factual issues for clear error. See Leatherwood v. Allbaugh, 861 F.3d 1034, 1042

(10th Cir. 2017). Because Defendant is acting pro se, we construe his pleadings liberally.

See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). To obtain relief under § 2241,

an inmate must demonstrate that “[h]e is in custody in violation of the Constitution or

laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).

       Sentencing credit for preconviction confinement is governed by 18 U.S.C.

§ 3585(b), which states:

       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--
              (1) as a result of the offense for which the sentence was imposed; or
              (2) as a result of any other charge for which the defendant was
                  arrested after the commission of the offense for which the
                  sentence was imposed;
       that has not been credited against another sentence.

In United States v. Woods, 888 F.2d 653, 655 (10th Cir. 1989), we defined official

detention in the statute to mean “imprisonment in a place of confinement, not stipulations

or conditions imposed upon a person not subject to full physical incarceration.”

       The district court found the following facts: Defendant was arrested on an

outstanding warrant by the Clinton County Police Department in Clinton County, Iowa,



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on November 10, 2005, and released on bond on November 14. On January 24, 2006, a

criminal complaint was filed against him in Iowa federal court, and a federal magistrate

judge issued a warrant for his arrest. The federal Drug Enforcement Agency (DEA)

arrested him on January 31 and turned him over to United States marshals on February 1.

On October 27, 2006, he was sentenced on his guilty plea to the charge of conspiracy to

distribute crack cocaine, and he began to serve his 262-month sentence.

       The BOP granted Defendant prior-custody credit for the time he spent confined for

his state arrest, November 10–14, 2005, and for his time in custody between his federal

arrest and conviction, January 31–October 26, 2006. Defendant complains that he was

not given sentence credit for the period from November 15, 2005, to January 30, 2006.

On appeal he does not argue that he would be entitled to credit if he had been released on

bail during that period; rather, he contends that he was in federal custody.

       The district court, however, found otherwise, and this finding was not clear error.

On the contrary, it was the only reasonable finding on the record before the court. The

court relied on an affidavit by an employee of the BOP, which, on this issue, is supported

by (1) attached records of the Clinton County court showing that he was released from

custody on November 14, 2005; (2) the January 24, 2006 federal court warrant for his

arrest; and (3) the return on the warrant together with the marshal’s record indicating his

arrest by the DEA on January 31 and assumption of custody by the marshal on

February 1.

       In district court Defendant submitted no sworn statement or other evidence to

rebut these findings. On appeal he offers for the first time a declaration under penalty of


                                             3
perjury that he was arrested by federal officers on November 15, 2005, and remained in

federal custody through his conviction (and, of course, thereafter). Perhaps this is his

honest recollection more than 12 years after the fact, but it is undoubtedly wrong. More

importantly, the declaration comes too late. See Regan-Touhy v. Walgreen Co., 526 F.3d

641, 648 (10th Cir. 2008) (“We generally limit our review on appeal to the record that

was before the district court when it made its decision.”).

          We AFFIRM the district court’s dismissal of Defendant’s application under

§ 2241.

                                              Entered for the Court


                                              Harris L Hartz
                                              Circuit Judge




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