     Case: 13-30831      Document: 00512616412         Page: 1    Date Filed: 05/02/2014




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

                                    No. 13-30831
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                         May 2, 2014
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


                                                 Plaintiff-Appellee

v.

CHRISTOPHER JACK,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:08-CR-167


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Christopher Jack, federal prisoner # 14035-035, pleaded guilty to being
a felon in possession of firearms and ammunition in violation of 18 U.S.C.
§ 922(g)(1), and in January 2009 the district court sentenced Jack to 120
months of imprisonment and a three-year term of supervised release. In April
2009, Jack pleaded guilty to a related charge in state court, and the state court
sentenced Jack to nine years of imprisonment, ordering his state sentence to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-30831

run concurrently with any other sentences. When Jack commenced serving his
federal sentence, the Bureau of Prisons (BOP) refused to give him credit
toward his federal sentence for time he had spent in state custody that had
been credited toward his state sentence. The BOP also declined to make a
nunc pro tunc designation of the state prison as the place where Jack
commenced serving his federal sentence. As a result, Jack is serving his
federal sentence consecutively to his state sentence.
      Jack unsuccessfully challenged the BOP’s computation of his sentence in
a 28 U.S.C. § 2241 petition. Jack v. Carlson, No. 1:12-CV-3027 (W.D. La.
June 11, 2013). Upon the denial of his § 2241 petition, Jack returned to this
criminal proceeding and filed a motion seeking to have the district court correct
or amend the judgment of conviction to reduce his sentence and give effect to
the state court’s order for concurrent sentences. The district court denied
Jack’s motion, and it denied his subsequent motion for reconsideration. It is
the denial of Jack’s motions in this criminal proceeding that are before us now
for review.
      The district court had the discretion, when sentencing Jack, to order
Jack’s federal sentence to run consecutively to his then-anticipated state
sentence; we presume from the district court’s failure to specifically order a
concurrent sentence that it intended to impose a consecutive sentence. See
18 U.S.C. § 3584(a); Setser v. United States, 132 S. Ct. 1463, 1466-73 (2012).
The method for computing a federal prisoner’s sentence is found at 18 U.S.C.
§ 3585. Section § 3585(b) provides that a defendant is entitled to credit for
time spent in official detention prior to being received in federal custody if that
prior time has not been credited toward another sentence. § 3585(b). However,
only the Attorney General through the BOP, and not the sentencing court, is




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authorized to calculate credit for time spent in official detention under § 3585.
See United States v. Wilson, 503 U.S. 329, 335 (1992).
      Jack’s motion to amend or correct was styled as a motion filed pursuant
to Rule 36 of the Federal Rules of Criminal Procedure. The district court
correctly determined that a request for sentencing credit is not cognizable in a
Rule 36 proceeding. United States v. Mares, 868 F.2d 151, 151-52 (5th Cir.
1989). Jack argues here, as he did in his motion for reconsideration, that his
request for relief was an omnibus motion inviting the district court to correct
the judgment of conviction under any authority it might have. In addition to
§ 3585 and Rule 36, Jack lists U.S.S.G. § 5G1.3(b) and BOP Program
Statement (BOPPS) 5160.05 as possible alternative sources of authority
allowing the district court to adjust his sentence.
      The Sentencing Guidelines are to be considered by a district court in
fashioning a sentence upon conviction. See Gall v. United States, 552 U.S. 38,
49 (2007). Nothing in § 5G1.3 purports to allow a district court to revisit a
sentence that has already been imposed. See § 5G1.3. Under the BOP’s nunc
pro tunc designation procedure set forth in BOPPS 5160.05, “[w]here a federal
sentence was imposed before a state sentence, the BOP may indirectly award
credit for time served in state prison by designating nunc pro tunc the state
prison as the place in which the prisoner serves a portion of his federal
sentence.” Pierce v. Holder, 614 F.3d 158, 160 (5th Cir. 2010); see Hunter v.
Tamez, 622 F.3d 427, 429 & n.2 (5th Cir. 2010). The district court has no
authority under BOPPS 5160.05 to make a nunc pro tunc designation, but it
may review a challenge to the BOP’s refusal to make such a designation in a
§ 2241 petition. See Pierce, 614 F.3d at 160. Thus, none of the sources urged
by Jack authorized the district court to grant the relief he sought.




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      A claim that a federal sentence is constitutionally invalid should be
brought in a proceeding under 28 U.S.C. § 2255. See § 2255(a); Tolliver v.
Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000). Jack’s contention is not that his
federal sentence, as imposed, is unconstitutional. Instead, Jack maintains that
the execution of his federal sentence consecutively to his service of his state
sentence undermines the voluntariness of his guilty plea to the state court
charge since that plea was predicated upon his understanding, as well of that
of the attorneys involved and the state court judge, that Jack’s state and
federal sentences would run concurrently. Claims regarding the execution of
a sentence are properly brought in a § 2241 proceeding. Pack v. Yusuff, 218
F.3d 448, 451 (5th Cir. 2000). With respect to the execution of Jack’s federal
sentence, he has already unsuccessfully raised his claims for sentence credit in
his prior § 2241 petition. On the record before us, it is impossible to determine
whether the voluntariness of Jack’s state plea would be the proper subject of a
§ 2241 petition. See Hunter, 622 F.3d at 432.
      AFFIRMED.




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