Miramontes v. Driver

* 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this opinion should not be published and is not precedent except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
July 23, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-41822
Summary Calendar
GUSTAVO MIRAMONTES,
Petitioner-Appellant,
versus
JOE DRIVER, Warden, FCI, Three Rivers,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CV-221
--------------------
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Gustavo Miramontes, federal prisoner # 95742-079, appeals
the district court’s dismissal of his 28 U.S.C. § 2241 petition.
Miramontes argues that the district court erred in finding that
he was not entitled to credit against his 84-month sentence for
conspiracy to distribute narcotics, aiding and abetting, and
money laundering from the date of his arrest for his first
offense of illegal reentry into the United States, which was on
February 1, 2001. He contends that he is entitled to this credit
under U.S.S.G. § 5G1.3(c) because the District Court for the

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Northern District of Indiana ordered his 84-month sentence to run
concurrent with his 37-month sentence and that he be given credit
for time served.
As an initial matter, the district court erred in dismissing
Miramontes’s habeas petition for failure to state a claim under
FED. R. CIV. P. 12(b)(6). A motion to dismiss for failure to
state a claim is an inappropriate practice in habeas. See
Browder v. Director, Dep’t of Corrections of Ill., 434 U.S. 257,
269 n.14 (1978). The error is harmless, however, because
Miramontes is not entitled to habeas relief. In reviewing the
denial of habeas relief, the district court’s findings of fact
are reviewed for clear error and issues of law are reviewed de
novo. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.
2001).
A federal sentence commences to run on the date that a
person is received at the penitentiary or jail for the service of
his sentence. Blackshear v. United States, 434 F.2d 58, 59 (5th
Cir. 1970). A defendant is given credit toward his term of
imprisonment for any time he spent in official detention prior to
the commencement of his sentence “that has not been credited
against another sentence.” 18 U.S.C. § 3585(b). There is no
dispute that Miramontes was credited with that time toward his
37-month sentence prior to the imposition of the 84-month
sentence. Section § 3585(b) does not mandate that he be given
credit against his 84-month sentence for that time. Even it

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intends to do so, a district court does not have the authority
under § 3585(b) to order a federal sentence to run absolutely
concurrently with a prior sentence. See Flores v. United States,
616 F.2d 840, 841 (5th Cir. 1980).
Miramontes cites to Ruggiano v. Reish, 307 F.3d 121 (3rd
Cir. 2002), to support his argument. In Ruggiano, the district
court pronounced in the oral judgment and the written judgment
that the federal sentence was to run concurrently with the state
sentence that Ruggiano was then serving and that Ruggiano should
“receive credit for the amount of time that he has served there.”
Ruggiano, 307 F.3d at 131. The Third Circuit inferred from the
judgments that the district court intended to adjust Ruggiano’s
sentence pursuant to § 5G1.3. Id. at 132-33. Even if Ruggiano
were binding authority, it is inapposite because the Indiana
district court did not order that Miramontes receive credit for
the time served for his 37-month sentence. In fact, in response
to a request made by the Bureau of Prisons (BOP), the Indiana
district court clarified that it “did not intend for the credit
for time served to be applied in accordance with [§] 5G1.3(b) but
rather intended for any credit which the defendant may be
entitled to, as determined by the BOP, to be applied by statute
as jail credit.”
Miramontes has failed to show that the district court erred
on any point of law or was clearly erroneous in any finding of

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fact in denying his claim for habeas relief under § 2241.
Accordingly, the judgment of the district court is AFFIRMED.

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