                              UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                              No. 01-8082



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

           versus


OTONIEL    ALVAREZ    MERCADO,   a/k/a   Otoniel
Alvarez,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-97-297-V)


Submitted:   June 11, 2002                   Decided:   June 21, 2002


Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed as modified by unpublished per curiam opinion.


Otoniel Alvarez Mercado, Appellant Pro Se.     Robert James Conrad,
Jr., United States Attorney, Charlotte,        North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     In February 1999, while already serving a related state

sentence, Otoniel Alvarez Mercado was sentenced in federal court to

eighty-four months imprisonment after he pled guilty to conspiracy

to possess with intent to distribute and to distribute cocaine and

marijuana.    On September 21, 2001, Mercado filed a “Nunc Pro Tunc”

motion seeking jail credit on his federal sentence for the time

spent in state custody on the related conviction.      The district

court denied the motion on the merits, and Mercado appealed.

     We view Mercado’s motion as a request for habeas relief under

28 U.S.C. § 2241 (1994) filed in the wrong district court (Mercado

is incarcerated in Jesup, Georgia) and without exhausting the

Bureau of Prisons’ administrative remedies. We therefore affirm the

district court’s dismissal of Mercado’s motion, but we modify the

district court’s order to reflect a dismissal without prejudice for

failure to exhaust administrative remedies, rather than a dismissal

based on the merits.   We expressly decline to address the merit or

lack thereof of Mercado’s motion, so that Mercado remains free to

file a § 2241 petition in the proper court after exhausting his

administrative remedies.

     We dispense with oral argument, because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                               AFFIRMED AS MODIFIED


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