                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 23, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-41822
                         Summary Calendar


GUSTAVO MIRAMONTES,

                                    Petitioner-Appellant,

versus

JOE DRIVER, Warden, FCI, Three Rivers,

                                    Respondent-Appellee.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 2:05-CV-221
                      --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Gustavo Miramontes, federal prisoner # 95742-079, appeals

the district court’s dismissal of his 28 U.S.C. § 2241 petition.

Miramontes argues that the district court erred in finding that

he was not entitled to credit against his 84-month sentence for

conspiracy to distribute narcotics, aiding and abetting, and

money laundering from the date of his arrest for his first

offense of illegal reentry into the United States, which was on

February 1, 2001.   He contends that he is entitled to this credit

under U.S.S.G. § 5G1.3(c) because the District Court for the

     *
       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this opinion should not be published and is not precedent except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. 05-41822
                                  -2-

Northern District of Indiana ordered his 84-month sentence to run

concurrent with his 37-month sentence and that he be given credit

for time served.

     As an initial matter, the district court erred in dismissing

Miramontes’s habeas petition for failure to state a claim under

FED. R. CIV. P. 12(b)(6).    A motion to dismiss for failure to

state a claim is an inappropriate practice in habeas.     See

Browder v. Director, Dep’t of Corrections of Ill., 434 U.S. 257,

269 n.14 (1978).    The error is harmless, however, because

Miramontes is not entitled to habeas relief.    In reviewing the

denial of habeas relief, the district court’s findings of fact

are reviewed for clear error and issues of law are reviewed de

novo.    See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.

2001).

     A federal sentence commences to run on the date that a

person is received at the penitentiary or jail for the service of

his sentence.    Blackshear v. United States, 434 F.2d 58, 59 (5th

Cir. 1970).    A defendant is given credit toward his term of

imprisonment for any time he spent in official detention prior to

the commencement of his sentence “that has not been credited

against another sentence.”    18 U.S.C. § 3585(b).   There is no

dispute that Miramontes was credited with that time toward his

37-month sentence prior to the imposition of the 84-month

sentence.    Section § 3585(b) does not mandate that he be given

credit against his 84-month sentence for that time.     Even it
                             No. 05-41822
                                  -3-

intends to do so, a district court does not have the authority

under § 3585(b) to order a federal sentence to run absolutely

concurrently with a prior sentence.    See Flores v. United States,

616 F.2d 840, 841 (5th Cir. 1980).

     Miramontes cites to Ruggiano v. Reish, 307 F.3d 121 (3rd

Cir. 2002), to support his argument.    In Ruggiano, the district

court pronounced in the oral judgment and the written judgment

that the federal sentence was to run concurrently with the state

sentence that Ruggiano was then serving and that Ruggiano should

“receive credit for the amount of time that he has served there.”

Ruggiano, 307 F.3d at 131.    The Third Circuit inferred from the

judgments that the district court intended to adjust Ruggiano’s

sentence pursuant to § 5G1.3.    Id. at 132-33.   Even if Ruggiano

were binding authority, it is inapposite because the Indiana

district court did not order that Miramontes receive credit for

the time served for his 37-month sentence.   In fact, in response

to a request made by the Bureau of Prisons (BOP), the Indiana

district court clarified that it “did not intend for the credit

for time served to be applied in accordance with [§] 5G1.3(b) but

rather intended for any credit which the defendant may be

entitled to, as determined by the BOP, to be applied by statute

as jail credit.”

     Miramontes has failed to show that the district court erred

on any point of law or was clearly erroneous in any finding of
                          No. 05-41822
                               -4-

fact in denying his claim for habeas relief under § 2241.

Accordingly, the judgment of the district court is AFFIRMED.
