     Case: 11-40306     Document: 00511719669         Page: 1     Date Filed: 01/10/2012




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

                                                                            FILED
                                                                         January 10, 2012
                                     No. 11-40306
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

TRAVIS DEVONNE SPENCER,

                                                  Petitioner-Appellant

v.

JODY R. UPTON,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:10-CV-214


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Travis Devonne Spencer, federal prisoner # 04842-078, appeals the denial
of his 28 U.S.C. § 2241 petition in which he challenged the failure of the Bureau
or Prisons (BOP) to give him federal credit for a state sentence. In 1995,
Spencer was sentenced to 137 months in federal prison for carjacking. The
federal court recommended that the sentence run consecutively to a state
sentence for arson that had been imposed in 1993.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40306   Document: 00511719669      Page: 2   Date Filed: 01/10/2012

                                 No. 11-40306

      On appeal Spencer does not actually argue that the BOP has improperly
executed his sentence, as he suggested in his § 2241 petition. Instead, he
squarely challenges the imposition of the 1995 federal sentence to run
consecutively to the previously imposed state sentence. The proper vehicle for
his challenge to his original sentence would have been a timely 28 U.S.C. § 2255
motion rather than a § 2241 petition. See Tolliver v. Dobre, 211 F.3d 876, 877-78
(5th Cir. 2000). The time for Spencer to appeal the 1995 sentence or to challenge
it through § 2255 is long past. See United States v. Spencer, 334 F. App’x 705,
705 (5th Cir. 2009). In any event, he was not entitled to federal credit for time
served in state prison on an unrelated state charge. United States v. Garcia-
Gutierrez, 835 F.2d 585, 586-87 (5th Cir. 1988) (citing United States v. Brown,
753 F.2d 455, 456 (5th Cir. 1985); and United States v. Dovalina, 711 F.2d 737,
739-40 (5th Cir. 1983)); see also 18 U.S.C. §§ 3584(a), 3585(b).
      The judgment of the district court is AFFIRMED.




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