Natividad v. Haro, et al

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 23, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-10054
Summary Calendar
GUADALUPE NATIVIDAD,
Petitioner-Appellant,
versus
FNU HARO, Warden; OFFICER FNU BLACK, IS Manager,
Respondents-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:04-CV-27
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Guadalupe Natividad, federal prisoner # 28395-013, appeals the
district court’s denial of his 28 U.S.C. § 2241 petition, which
challenged the calculation of his sentence by officials of the
Bureau of Prisons.
We asked the parties to address the timeliness of Natividad’s
notice of appeal. Natividad argues that he did not receive timely
notice of the district court’s judgment denying his petition and
that the district court extended or reopened the time for filing a

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No. 05-10054
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notice of appeal pursuant to FED. R. APP. P. 4(a)(5) and (6). The
Government concedes that Natividad’s notice of appeal appears to be
timely pursuant to FED. R. APP. P. 4(a)(6). We need not determine
whether Natividad’s notice of appeal was timely because his appeal
is frivolous. See United States v. Alvarez, 210 F.3d 309, 310 (5th
Cir. 2000) (because appeal was frivolous, it was unnecessary to
remand the action for a determination of excusable neglect or good
cause for the failure to file a timely notice of appeal).
When liberally construed, Natividad argues on appeal that a
later imposed federal sentence, which was ordered to run
concurrently with an earlier federal sentence, began to run when he
was received in custody on the earlier sentence. However, a
federal sentence does not run absolutely concurrently with a prior
sentence. See United States v. Flores, 616 F.2d 840, 841 (5th Cir.
1980). Because the appeal is without any arguable merit, it is
DISMISSED AS FRIVOLOUS. 5TH CIR. R. 42.2.

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