                                                          United States Court of Appeals
                                                                   Fifth Circuit

                                                               FILED
                 IN THE UNITED STATES COURT OF APPEALS      August 17, 2004
                         FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                              No. 04-10106
                          Conference Calendar



TOMMY GABRIEL,

                                      Petitioner-Appellant,

versus

L.E. FLEMING, Warden,

                                      Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:03-CV-937-Y
                       --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

     Tommy Gabriel, federal prisoner # 08531-078, appeals the

district court’s denial of his 28 U.S.C. § 2241 petition in which

he alleged that the Bureau of Prisons (BOP) had erroneously

calculated his initial custody classification.    Gabriel relies on

Sellers v. Bureau of Prisons, 959 F.2d 307 (D.C. Cir. 1992), in

support of his argument that, when calculating his initial

custody classification, the BOP incorrectly classified his

“failure to appear” for community supervision on a prior


     *
       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this opinion should not be published and is not precedent except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.
                            No. 04-10106
                                 -2-

conviction as “absconding” or an “escape” from community

supervision.   Gabriel argues that, due to the classification

error, he was ineligible for placement in less restrictive

custody.

     In the context of a 28 U.S.C. § 2241 petition, the district

court’s determinations of law are reviewed de novo and its

findings of fact are reviewed for clear error.     See Royal v.

Tombone, 141 F.3d 596, 599 (5th Cir. 1998) (citation omitted).

As a general rule, inmates have no protected liberty interest in

initial custodial classification.    See Wilkerson v. Stalder,

329 F.3d 431, 435-36 (5th Cir.), cert. denied, 124 S. Ct. 432

(2003).    Absent an abuse of discretion by prison officials, the

custodial classification will be upheld.    Id. at 436.

     Gabriel’s reliance on Sellers is misplaced because the

record in Gabriel’s case contains administrative records from the

BOP informing him that his classification status was consistent

with the prison classification manual.     Cf. Sellers, 959 F.2d

at 312 (absence of administrative records for verification

purposes).   The classification manual used by the BOP includes

the concepts of “failure to appear” and “absconding” from

community supervision within the broad definition of “escape.”

Gabriel has failed to show that the BOP abused its discretion in

assigning his initial custodial classification.     See Wilkerson,

329 F.3d at 436.   Accordingly, because Gabriel has no

constitutional right in his initial custodial classification and
                          No. 04-10106
                               -3-

because the record reflects that the BOP did not abuse its

discretion in assigning his initial classification, the district

court did not err in denying Gabriel’s 28 U.S.C. § 2241 petition.

See Royal, 141 F.3d at 599.   The judgment of the district court

is AFFIRMED.
