                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            FEB 15 2000
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 MARCOS TORRES,

          Petitioner-Appellant,
 v.                                                      No. 99-1321
                                                      (D.C. No. 99-Z-708)
 JOSEPH BROOKS and FEDERAL                                 (D. Colo.)
 BUREAU OF PRISONS,

          Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.


      Petitioner-Appellant Marcos Torres (“Torres”), a federal inmate appearing

pro se, appeals the district court’s order dismissing his petition for habeas relief

under 28 U.S.C. § 2241. Torres argues that he is entitled to credit toward his

federal sentence for time spent in state custody. After reviewing the record and

Torres’ arguments, we affirm the district court.


      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
      On February 8, 1993, while Torres was in state custody, he appeared in

federal court pursuant to a writ of habeas corpus ad prosequendum. Torres pled

guilty in the United States District Court for the District of Kansas to conspiracy

to possess with intent to distribute cocaine. In his plea agreement, the

government agreed “not to oppose the defendant receiving credit for time served

for any period of incarceration creditable to him under the law.” On February 18,

1994, Torres was sentenced to 168 months of imprisonment for the federal

charge. The Judgment in a Criminal Case is silent on whether or not the federal

sentence runs concurrently or consecutively to the state sentence and makes no

mention of credit for prior custody; however, Torres claims that the district judge

orally granted him jail credit for the time he spent in state custody prior to

commencement of his federal sentence. (See Aplt. Br. at 3.)

      After receiving his federal sentence, Torres was returned to state custody

until March 14, 1994, when he was paroled by the state authorities. At that time,

he was returned to federal custody to begin serving his federal sentence. The

Bureau of Prisons (BOP) originally calculated Torres’ sentence as beginning on

February 18, 1994, and credited him with 375 days of jail credit. (See Pet’r Br.,

Ex. G.) The BOP later recalculated Torres’ sentence as beginning on March 14,

1994, and did not credit him with any jail credit. (See id.)




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      Torres does not appear to challenge the BOP’s recalculation of the

commencement date of his sentence as March 14, 1994; however, he does

challenge the BOP’s denial of credit against his federal sentence for the time he

was incarcerated by the state prior to commencement of his federal sentence,

because the federal charges prevented his release on the state charges. Torres

claims he is entitled to 733 days of credit or, in the alternative, at least 365 days

of credit. The claim of at least 365 days apparently refers to the time between

February 8, 1993, when Torres first appeared in federal court, and March 14,

1994, when the federal sentence commenced. Torres does not indicate the basis

of his claim for the remaining days that would give him 733 total days of credit.

We agree with the district court that the record indicates that Torres has only

exhausted his administrative remedies with respect to the claim of at least 365

days. He has not exhausted his administrative remedies regarding the claim for

additional days of credit. Therefore, we affirm the district court’s decision not to

consider the claim for those additional days.

      In support of his claim for at least 365 days of credit, Torres relies on the

plea agreement he made with the government and the alleged statement by the

district judge that Torres would receive credit for those days. Neither the plea

agreement nor a statement by the district judge that Torres would receive those

days of credit lead to the result Torres seeks. The plea agreement states only that


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the government agreed not to oppose Torres receiving credit for time served for

any period of incarceration creditable to him under the law. The 365+ days of

credit sought by Torres are not creditable to him under the law. The relevant

statute regarding credit toward service of a term of imprisonment provides:

      (b) Credit for prior custody. – A defendant shall be given credit
      toward the service of a term of imprisonment for any time he has
      spent in official detention prior to the date the sentence commences–

           (1) as a result of the offense for which the sentence was
      imposed; or

             (2) as a result of any other charge for which the defendant was
      arrested after the commission of the offense for which the sentence
      was imposed;

      that has not been credited against another sentence.


18 U.S.C. § 3585(b). The 365+ days of credit sought by Torres were credited

against his state sentence; therefore, they are not creditable to him under 18

U.S.C. § 3585(b). See United States v. Wilson, 503 U.S. 329, 337 (“Congress

made clear that a defendant could not receive a double credit for his detention

time.”).

      A statement by the district judge that Torres should receive credit for the

time spent in state custody prior to commencement of his federal sentence cannot

alter that result. The Supreme Court held in Wilson that the district court cannot

perform the necessary calculation under 18 U.S.C. § 3585(b) at the time of


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sentencing; rather it is the Attorney General, through the BOP, that must make

that calculation. See id. at 333, 336. Therefore, a district judge’s statement

regarding a credit calculation under 18 U.S.C. § 3585(b) is not binding on the

BOP. Therefore, per the BOP’s calculation under 18 U.S.C. § 3585, Torres is not

entitled to credit for the time spent in state custody prior to commencement of his

federal sentence.

      The judgment of the district court is AFFIRMED.

      The mandate shall issue forthwith.

                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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