Summary Calendar JOSE BARRETO v. COLE JETER, Warden, FCI-Fort Worth

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-10416
Summary Calendar
JOSE BARRETO
Petitioner-Appellant
v.
COLE JETER, Warden, FCI-Fort Worth
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CV-24
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Jose Barreto, federal prisoner # 40040-080, was sentenced in 2002 to
85 months in prison for possession with intent to distribute more than five
kilograms of cocaine. He filed a 28 U.S.C. § 2241 petition arguing that the 225
days that he spent in a community confinement facility prior to sentencing
should be credited against his sentence pursuant to 18 U.S.C. § 3585. He also
asserted that his due process rights were violated because he was not properly
United States Court of Appeals
Fifth Circuit
F I L E D
October 9, 2007
Charles R. Fulbruge III
Clerk

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No. 06-10416
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advised prior to electing bail that the time he spent in the facility would not
count against his sentence.
Barreto’s first argument is foreclosed by Reno v. Koray, 515 U.S. 50, 58-63
(1995), in which the Supreme Court held that release on bail subject to
restrictions, including confinement in a community treatment facility, is not
official detention for purposes of 18 U.S.C. § 3585(b) and does not count towards
the sentence imposed. Barreto concedes as much but argues that Koray was
unfairly decided. Nevertheless, we are bound to follow Koray unless and until
the Supreme Court itself overrules it. See Medellin v. Dretke, 371 F.3d 270, 280
(5th Cir. 2004).
We also reject Barreto’s contention that due process requires notice to a
pretrial detainee that confinement while released on bail rather than official
detention will not count towards the sentence. That possibility is too speculative
to implicate the protections of the Due Process Clause. See Cucciniello v. Keller,
137 F.3d 721, 724-25 (2d Cir. 1998); see also Luken v. Scott, 71 F.3d 192, 193-94
(5th Cir. 1995) (addressing nature of liberty interest protected by due process).
For the foregoing reasons, the judgment of the district court is
AFFIRMED.

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