     Case: 11-51072     Document: 00511953801         Page: 1     Date Filed: 08/13/2012




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

                                                                            FILED
                                                                          August 13, 2012
                                     No. 11-51072
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

RODOLFO IBARRA MUNOZ,

                                                  Petitioner-Appellant

v.

CLAUDE MAYE, Warden, Bastrop Federal Correctional Institution, Bastrop,
Texas,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:10-CV-960


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Rodolfo Ibarra Munoz, federal prisoner # 00556-079, was sentenced in
2009 to 108 months in prison for interstate transportation in aid of racketeering,
aiding and abetting, and using a communication facility to facilitate the
distribution of marijuana. He filed a 28 U.S.C. § 2241 petition, arguing that the
time that he spent in a community corrections center (CCC), or halfway house,
prior to sentencing, and the time that he spent in the CCC after sentencing but


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-51072

prior to the date that he reported to the designated Bureau of Prisons (BOP)
facility, should be credited against his sentence pursuant to 18 U.S.C. § 3585(b).
The district court denied the § 2241 petition, reasoning that Munoz’s claim was
vitiated by Reno v. Koray, 515 U.S. 50, 57-65 (1995), in which the Supreme Court
held that time spent while released on bail subject to restrictions, including
confinement in a community treatment facility, does not constitute official
detention for purposes of § 3585(b) and is not credited toward the sentence
imposed.
      On appeal, Munoz again challenges the BOP’s sentence calculation, and
he argues that the district court failed to recognize that his request for credit
comprised two different time periods: (1) the time spent in a halfway house prior
to the oral pronouncement of sentence, and (2) the time spent in a halfway house
after he was sentenced. He also maintains that the Department of Justice’s
(DOJ) opinion, set forth in a memorandum dated December 16, 2002, that a CCC
constitutes a penal or correctional facility, undermines the reasoning in Koray
and mandates credit for pre-sentencing time served in a CCC.
      Munoz’s arguments are without merit. Prior to reporting to the BOP
facility, Munoz was released on bail, subject to the restriction that he maintain
residence in a halfway house or CCC; he was not “committed to the custody of
the Attorney General” or otherwise “subject to BOP’s control.” Koray, 515 U.S.
at 57-58 (internal quotation marks and citation omitted). Accordingly, Munoz
was not in “official detention” for purposes of § 3585(b), and the district court did
not err when it held that the BOP correctly denied Munoz’s requested credit.
See id. at 58-65. Additionally, any challenge by Munoz to the district court’s
failure to make findings about the purportedly restrictive nature of the time he
spent in the halfway house is foreclosed by Koray, in which the Court specifically
rejected the “jail-type confinement” test as being “sufficiently vague and
amorphous.” Id. at 63-64. Finally, Munoz’s reliance on the DOJ memorandum
of December 16, 2002, is misplaced. Even if a CCC may constitute a place of

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                               No. 11-51072

imprisonment, Munoz cannot show that he was in the custody of the BOP. See
id. at 58, 63.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED. Munoz’s motion to supplement the record on appeal is DENIED.




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