Felipe Ramirez v. Andrew Mansukhani

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis (FRAP 24) [999601232-2]. Originating case number: 1:14-cv-01765-BHH. Copies to all parties and the district court/agency [999679331]. Mailed to: Felipe Ramirez. [15-6525]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6525

FELIPE RAMIREZ,
Petitioner - Appellant,
v.
ANDREW MANSUKHANI, Warden,
Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Aiken.
Bruce H. Hendricks, District Judge.
(1:14-cv-01765-BHH)

Submitted:

September 29, 2015

Decided:

October 16, 2015

Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Felipe Ramirez, Appellant Pro Se.
Marshall Prince, II,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Felipe Ramirez, a federal prisoner, appeals the district
court’s
judge

order
and

petition.

accepting

denying

the

relief

recommendation
on

his

28

of

U.S.C.

the

magistrate

§ 2241

(2012)

We have reviewed the record and find no reversible

error.
We review de novo a district court’s order denying relief
on a prisoner’s § 2241 petition alleging that the Federal Bureau
of Prisons (BOP) miscalculated his sentence.

Yi v. Fed. Bureau

of Prisons, 412 F.3d 526, 530 (4th Cir. 2005).

First, Ramirez

alleges that 18 U.S.C. § 3585(b) (2012) entitles him to credit
for time served between the imposition of his state sentence and
his federal sentence.

Under that statute,

[a] defendant shall be given credit toward the service
of a term of imprisonment for any time he has spent in
official detention prior to the date the sentence
commences . . . as a result of the offense for which
the sentence was imposed . . . that has not been
credited against another sentence.
18 U.S.C. § 3585(b) (emphasis added).

Because the time Ramirez

served between the imposition of the two sentences was credited
toward the service of his state sentence — a sentence for an
offense involving the same underlying conduct as his federal
conviction — Ramirez was not entitled to credit under § 3585(b).
Second, Ramirez argues that the sentencing court imposed a
federal

sentence

concurrent

to

2

the

entirety

of

his

state

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sentence.
court

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In its oral pronouncement of sentence, the sentencing

stated

that

Ramirez’s

federal

sentence

was

“to

run

concurrent to the discharged undischarged term of imprisonment
[in Ramirez’s state case].”

The court’s written judgment states

that Ramirez’s federal sentence was “to run concurrent with the
undischarged term of imprisonment [in Ramirez’s state case].”
“It

is

normally

the

rule

that

where

a

conflict

exists

between an orally pronounced sentence and the written judgment,
the oral sentence will control.”
F.3d

281,

283

n.1

(4th

Cir.

United States v. Osborne, 345
2003).

However,

if

the

oral

pronouncement is ambiguous, then a reviewing court looks to the
written

judgment

to

resolve

the

ambiguity.

Id.

Here,

an

ambiguity exists in the sentencing court’s use of the phrase
“discharged

undischarged

pronouncement.

term

of

imprisonment”

in

its

oral

Accordingly, we resort to the written judgment

to resolve the ambiguity and conclude that the sentencing court
intended to run Ramirez’s federal sentence concurrent only to
the undischarged portion of his state sentence.

Thus, the BOP

properly calculated Ramirez’s sentence and his release date. *

*

For the first time on appeal, Ramirez argues that his
sentence violates U.S. Sentencing Guidelines Manual § 5G1.3
(2010).
This argument, to the extent it is cognizable through
§ 2241, see United States v. Surratt, 797 F.3d 240, 247 (4th
Cir. 2015), is waived because Ramirez did not present it to the
district court.
See In re Under Seal, 749 F.3d 276, 285 (4th
Cir. 2014) (“Our settled rule is simple: absent exceptional
(Continued)
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Therefore,

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although

we

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grant

leave

to

proceed

pauperis, we affirm the district court’s judgment.

in

forma

We dispense

with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

this

court

and

argument would not aid the decisional process.
AFFIRMED

circumstances, we do not consider issues raised for the first
time on appeal.” (alterations and internal quotation marks
omitted)).

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