                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-11-2005

Conerly v. Yates
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4664




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Recommended Citation
"Conerly v. Yates" (2005). 2005 Decisions. Paper 435.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/435


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                                            NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT




                     No. 04-4664


                 ALVIN CONERLY,

                          Appellant

                            v.

                 STAN A. YATES,
               Warden, FCI Allenwood

      ____________________________________

    On Appeal From the United States District Court
         For the Middle District of Pennsylvania
               (D.C. Civ. No. 03-cv-01057)
    District Judge: Honorable Christopher C. Conner
    _______________________________________


      Submitted Under Third Circuit LAR 34.1(a)
                  October 7, 2005

Before: ALITO, SMITH AND COWEN, CIRCUIT JUDGES

               (Filed: October 11, 2005)


             _______________________

                    OPINION
             _______________________
PER CURIAM

       Alvin Conerly appeals the District Court’s order denying his petition filed pursuant

to 28 U.S.C. § 2241. In his petition, Conerly challenged the Bureau of Prison’s

calculation of his sentence and alleged that he was entitled to credit for time spent in

temporary federal custody and in state custody. The District Court denied his petition,

and Conerly filed a timely notice of appeal.

       We have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s

legal conclusions is plenary, and we review its findings of facts for clear error. See

Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir. 2002). The procedural history of this case

and the details of Conerly’s claims are well-known to the parties, set forth in the District

Court’s opinion, and need not be repeated here. On appeal, Conerly contends that

appellee waived any defense to his claim by failing to timely respond to it. We disagree.

Conerly also argues that he is entitled to credit on his federal sentence for the time served

on his second state sentence because this sentence for conspiracy and bank robbery was

based on the same offense or acts as the federal sentence for racketeering. However, a

RICO offense is not the same as the underlying predicate act and can be prosecuted and

sentenced separately. See United States v. Pungitore, 910 F.2d 1084 (3d Cir.

1990)(allowing prosecution for a RICO offense after conviction for the underlying

predicate offense); United States v. Grayson, 795 F.2d 278, 283 (3d Cir. 1986)(allowing

separate prosecutions and cumulative punishments for RICO offense and underlying



                                               2
predicate offense.).

       For the above reasons, as well as those set forth by the District Court, we will

affirm the District Court’s December 20, 2004, order.




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