Allison Gotay-Aviles v. Claude Maye

Filing

Case: 09-50725

Document: 00511204064

Page: 1

Date Filed: 08/16/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50725 S u m m a r y Calendar August 16, 2010 Lyle W. Cayce Clerk

A L L IS O N GOTAY-AVILES, P e titio n e r-A p p e lla n t v. C L A U D E MAYE, Warden, FCI Bastrop, R e s p o n d e n t -A p p e lle e

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 1:08-CV-373

B e fo r e SMITH, DENNIS, and OWEN, Circuit Judges. P E R CURIAM:* A llis o n Gotay-Aviles (Gotay), federal prisoner # 15596-069, appeals the d is t r ic t court's denial of his 28 U.S.C. § 2241 petition. Gotay argues that the d is t r ic t court erred by concluding that the Bureau of Prisons (BOP) correctly d e n ie d him presentence credit against his federal sentence for the time he spent in federal and Puerto Rican custody between April 28, 1995, and October 21, 1 9 9 9 . He argues that the district court erred in applying United States v. Flores, 6 1 6 F.2d 840 (5th Cir. 1980), to reach this conclusion because it was decided
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

Case: 09-50725

Document: 00511204064 Page: 2 No. 09-50725

Date Filed: 08/16/2010

p r io r to the Sentencing Reform Act of 1984. He also argues that the BOP's fa ilu r e to grant presentence credit breached his plea agreement and was c o n t r a r y to the intent of the sentencing court. A defendant is given credit toward his term of imprisonment for any time h e spent in official detention prior to the commencement of his sentence "that h a s not been credited against another sentence." 18 U.S.C. § 3585(b). Gotay d o e s not dispute he was credited for the time he spent in custody between April 2 8 , 1995, and October 21, 1999. Thus, pursuant to § 3585(b), Gotay is not e n tit le d to additional credit on his federal sentence. Moreover, a district court d o e s not have the authority under § 3585(b) to order a federal sentence to run a b s o lu t e ly concurrently with a prior sentence. See United States v. Flores, 616 F . 2d at 841 (holding that a federal sentence cannot commence prior to the date it is announced, even if it is made concurrent with a sentence already being s e r v e d ). G o t a y 's argument that the district court erroneously relied on Flores is u n a v a ilin g because this circuit has repeatedly relied on Flores after the S e n te n c in g Reform Act of 1984. See Miramontes v. Driver, 243 F. App'x 855, 856 (5 t h Cir. 2005); Natividad v. Haro, 181 F. App'x 499, 500 (5th Cir. 2006). Finally, Gotay's argument regarding the breach of the plea agreement is without m e r it because his claim arose at or prior to sentencing, and he did not satisfy the r e q u ir e m e n t s of the "savings clause" of 28 U.S.C. § 2255(e). See Tolliver v. D o b r e , 211 F.3d 876, 877-78 (5th Cir. 2000); Reyes-Requena v. United States, 243 F .3 d 893, 901 (5th Cir. 2001). Accordingly, this claim is not properly raised in a § 2241 proceeding. See Tolliver, 211 F.3d at 877-87. The judgment of the d is t r ic t court is therefore AFFIRMED.

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