                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                              FILED
                            FOR THE NINTH CIRCUIT                               APR 24 2013

                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

PATRICK D. COLE,                                 No. 12-35678

              Petitioner - Appellant,            D.C. No. 3:12-cv-00412-ST

  v.
                                                 MEMORANDUM*
J.E. THOMAS, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Marco A. Hernandez, District Judge, Presiding

                       Argued and Submitted April 10, 2013
                              Pasadena, California

Before: TALLMAN and M. SMITH, Circuit Judges, and ROSENTHAL, District
Judge.**

       Petitioner-Appellant Patrick D. Cole (Cole), a federal prisoner, appeals the

Oregon district court’s dismissal of his petition for a writ of habeas corpus



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for the Southern District of Texas, sitting by designation.
pursuant to 28 U.S.C. § 2241. We have jurisdiction under 28 U.S.C. § 2253, and

we affirm.

      The District Court for the Southern District of Texas previously considered

the legality of the Bureau of Prisons’s (BOP) administration of Cole’s sentence

when it reviewed and dismissed Cole’s habeas petition to that court in 2002. The

Oregon district court therefore properly dismissed Cole’s 2012 petition as

successive under 28 U.S.C. § 2244(a). The recent case of Setser v. United States,

132 S. Ct. 1463 (2012), does not undermine this determination.

      Additionally, the BOP’s letter to the judge who imposed Cole’s federal

sentence did not violate Cole’s rights. The BOP “ultimately has to determine how

long the District Court’s sentence authorizes it to continue [a prisoner’s]

confinement.” Setser, 132 S. Ct. at 1473. The BOP by statute considers “any

statement by the court that imposed the sentence concerning the purposes for

which the sentence to imprisonment was determined to be warranted or

recommending a type of penal or correctional facility as appropriate.” 18 U.S.C. §

3621(b)(4). The BOP interprets § 3621 to authorize recognition of state prison

time, inter alia, “when it is consistent with the intent of the federal sentencing

court . . . .” Reynolds v. Thomas, 603 F.3d 1144, 1150 (9th Cir. 2010) (citing BOP

Program Statement 5160.05 (January 16, 2003)). Because the letter to the district

judge attempted to determine the intent of the federal sentencing judge, it was not a
due process violation. See, e.g., Reynolds, 603 F.3d at 1153 (W. Fletcher, J.,

concurring) (“The federal Bureau of Prisons (‘BOP’) acted properly in construing

the sentencing judge’s answer to the BOP’s letter.”).

      AFFIRMED.
