                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 02 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JERALD LAVELLE JOHNSON,                          No. 08-15401

               Petitioner - Appellant,           D.C. No. 07-cv-00714-OWW

  v.

DENNIS SMITH, Warden,                            MEMORANDUM *

               Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Oliver W. Wanger, District Judge, Presiding

                              Submitted July 19, 2010 **

Before:        B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

       Former federal prisoner Jerald Lavelle Johnson appeals pro se from the

district court’s judgment denying his 28 U.S.C. § 2241 petition. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

       Johnson contends the district court erred by denying his petition because the

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
sentencing court ordered his federal sentence to run concurrent with the state

sentence he was serving, and thus he was entitled to credit for all of the time he

served in state custody. This contention fails because Johnson’s federal prison

term could not begin earlier than the date on which it was imposed. See 18 U.S.C.

§ 3585(a). Further, contrary to Johnson’s contention, U.S.S.G. § 5G1.3 does not

assist his case. See United States v. Arellano-Torres, 303 F.3d 1173, 1180

(9th Cir. 2002) (affirming district court’s imposition of consecutive sentence under

§ 5G1.3(c) where defendant had committed the federal crime while he was on state

probation); see also U.S.S.G. § 5G1.3 cmt. n.3(E) (recommending that any

downward departure be clearly stated on the judgment). Accordingly, the district

court did not err by concluding that Johnson was not entitled to relief.

      AFFIRMED.




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