     Case: 13-41009      Document: 00512797608         Page: 1    Date Filed: 10/08/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                    No. 13-41009                           October 8, 2014
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk



ROY EDWARD CANTU,

                                                 Petitioner−Appellant,

versus

FEDERAL BUREAU OF PRISONS; HARRELL WATTS;
G. MALDONADO, JR.; KEITH ROY,

                                                 Respondents−Appellees.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:12-CV-257




Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *


       Roy Edward Cantu, federal prisoner #05508-078, appeals the denial of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 13-41009

his 28 U.S.C. § 2241 petition for writ of habeas corpus and the denial of his
Federal Rule of Civil Procedure 60(b) motion for relief from the judgment deny-
ing the petition. That petition challenged the calculation by the Bureau of
Prisons (“BOP”) of his 48-month sentence, from the Eastern District of Texas,
for conspiracy to possess with intent to distribute marihuana and his 224-
month sentence, from the Southern District of Texas for conspiracy to commit
racketeering activity in violation of the Racketeering Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1962.
      The state contends that only the appeal from the denial of the Rule 60(b)
motion is properly before this court because Cantu did not file a timely notice
of appeal from the denial of the § 2241 petition. Eight days after the entry of
judgment, however, Cantu filed a document styled as a 28 U.S.C. § 2255 motion
in which he expressed an intent to appeal the judgment denying his § 2241
motion and identified himself as the party appealing. That document is a suffi-
cient and timely notice of appeal, so we have jurisdiction to consider the appeal
of the denial of the § 2241 petition. See 28 U.S.C. § 2107(b); Bailey v. Cain, 609
F.3d 763, 765-66 (5th Cir. 2010).
      Cantu urges that the district court erred by denying his § 2241 petition
because the Honorable Filemon Vela, the sentencing judge in the RICO case,
intended that he serve a total sentence of 224 months from the time he was
initially arrested on the marihuana charge on April 26, 1995. Cantu maintains
that the sentencing guidelines require his RICO sentence to run concurrently
to the 10 months remaining on his marihuana sentence at the time of sentenc-
ing. He asserts that Judge Vela ordered the sentences to run concurrently by
adopting the presentence report (“PSR”) because it stated that the sentences
would run concurrently. Cantu also raises multiple procedural issues.
      On appeal from the denial of a § 2241 petition, we review the district



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court’s determinations of law de novo and its findings of fact for clear error.
Padilla v. United States, 416 F.3d 424, 425 (5th Cir. 2005). We review the
denial of relief under Rule 60(b) for abuse of discretion. Edward H. Bohlin Co.
v. Banning Co., 6 F.3d 350, 353 (5th Cir. 1993).
      Cantu did not raise new arguments in his Rule 60(b) motion but merely
presented the addendum to the PSR in the RICO case as new evidence in sup-
port of an argument he had already raised. Because the addendum was part
of the record in the underlying RICO case, we may take judicial notice of it
when considering Cantu’s challenges to the denial of his § 2241 petition. See
Bryson v. United States, 553 F.3d 402, 404 (5th Cir. 2008); Moore v. Estelle, 526
F.2d 690, 694 (5th Cir. 1976). Thus, the Rule 60(b) motion does not add any-
thing to Cantu’s challenges to the denial of the § 2241 petition, and we consider
all of his arguments under the standard of review applicable to denials of
§ 2241 petitions.
      Other than his argument that the BOP incorrectly calculated his sen-
tence because his RICO sentence ran concurrently with the 10 months remain-
ing on his marihuana sentence at the time of sentencing, Cantu’s assertions
are without merit. Although he correctly reasons that the oral pronouncement
of sentence is controlling over the written judgment, see United States v. Mar-
tinez, 250 F.3d 941, 942 (5th Cir. 2001), the district court did not err by failing
to consider the sentencing transcript because it was never prepared.
      Pursuant to 18 U.S.C. § 3584(a), “if a term of imprisonment is imposed
on a defendant who is already subject to an undischarged term of imprison-
ment, the terms may run concurrently or consecutively.” “Multiple terms of
imprisonment imposed at different times run consecutively unless the court
orders that the terms are to run concurrently.” Id. Thus, when a sentencing
court does not mention a prior undischarged sentence, the sentences run



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consecutively. Jones v. Joslin, 635 F.3d 673, 674 (5th Cir. 2011).
      The PSR from the RICO case shows that the offense conduct for the
marihuana conviction was not just relevant conduct to the RICO conviction but
was also part of the offense conduct of the RICO conviction. Thus, under the
then-mandatory guidelines, the sentence on the RICO conviction was supposed
to run concurrently with the undischarged portion of the marijuana sentence.
See U.S.S.G. § 5G1.3(b)(2). Although the magistrate judge correctly noted that
Judge Vela could have ordered the RICO sentence to run consecutively to the
undischarged portion of the marihuana sentence as a departure, see United
States v. Bell, 46 F.3d 442, 446 (5th Cir. 1995), it would have been illogical for
him to have done so because he could have sentenced Cantu to the same total
sentence without departing from the guidelines by choosing a different
sentence within the guideline range and ordering the sentences to run
concurrently.
      The written judgment in the RICO case does not state whether the sen-
tence was to run consecutively to or concurrently with the undischarged
10 months that were then remaining on the marihuana sentence, but it gave
Cantu credit for the 38 months of the marihuana sentence that he had already
served. In the Statement of Reasons, Judge Vela adopted the PSR in relevant
part. The PSR stated that the undischarged portion of the marihuana sentence
should be considered at sentencing, and the addendum to the PSR stated that
the RICO sentence would run concurrently with the undischarged portion of
the marihuana sentence. By adopting a PSR stating that the sentences would
run concurrently, Judge Vela ordered “that the terms are to run concurrently.”
§ 3584(a). Thus, by determining that the sentences ran consecutively, the BOP
incorrectly calculated the length of the sentence, and Cantu is entitled to relief.
      For the foregoing reasons, the judgment is AFFIRMED in part and



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                                No. 13-41009

VACATED in part, and the case is REMANDED for entry of judgment consis-
tent with this opinion. Because Cantu is scheduled to be released within
10 months and is likely entitled to immediate release, the mandate shall issue
forthwith.




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