                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 January 28, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-50385
                          Summary Calendar



RICHARD W. BUTTON,

                                     Petitioner-Appellant,

versus

UNITED STATES OF AMERICA; ROBERT TAPIA, Warden,

                                     Respondents-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. EP-02-CV-421-PRM
                       --------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

     On March 30, 1999, Richard W. Button, now federal prisoner

#05458-051, was sentenced for conspiracy to possess with intent

to distribute marijuana to 120 months’ imprisonment and four

years’ supervised release.   At the time Button was arrested and

charged with that conspiracy offense, he had been serving an

undischarged term of imprisonment for being a felon in possession

of a firearm.   Button’s sentence for the conspiracy offense

(hereinafter referred to as “second sentence”) was imposed to run

     *
        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that this opinion should not be published and is not precedent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. 03-50385
                                -2-

concurrently with his sentence for the firearm offense

(hereinafter referred to as “first sentence”).   He now appeals

the district court’s denial of his federal habeas corpus

petition, filed pursuant to 28 U.S.C. § 2241, seeking credit on

his second sentence for time he spent serving his first sentence.

     On appeal, Button argues that he is entitled to credit on

his second sentence for the time he had already served on his

first sentence pursuant to U.S.S.G. § 5G1.3(b) because:    (1) a

“concurrent” sentence under U.S.S.G. § 5G1.3(b) is not simply

concurrent with the remainder of the defendant’s undischarged

sentence but is retroactively concurrent with the full term of

the undischarged sentence; and (2) when imposing his second

sentence, the district court intended to grant him the credit he

now seeks.   Examination of U.S.S.G. § 5G1.3(b) and the

accompanying Application Note reveals that Button’s first

argument lacks merit.   Furthermore, the record contradicts the

factual basis of Button’s second argument.

     Accordingly, the district court’s judgment is AFFIRMED.
