USA v. Paul Serrato
UNPUBLISHED OPINION ORDER FILED. [14-50254 Dismissed as Frivolous] Judge: WED , Judge: EBC , Judge: GJC. Mandate pull date is 10/01/2014; denying motion to proceed IFP filed by Appellant Mr. Paul Serrato [7649673-2] [14-50254]
Date Filed: 09/10/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
September 10, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:03-CR-40-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Paul Serrato, federal prisoner # 35535-180, moves for leave to proceed in
forma pauperis (IFP) in his appeal from the district court’s denial of his motion
asking it to recommend that the Bureau of Prisons run his federal sentence
concurrently with his state sentence. Serrato contends that a district court is
authorized to make such a recommendation, relying on Setser v. United States,
132 S. Ct. 1463, 1468-70 (2012).
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 09/10/2014
In Setser, the Court held that, when a state sentence is not imposed until
after a federal sentencing hearing is held, a district court nevertheless has
discretion to order that the federal sentence run consecutively to the
anticipated state sentence. Id. at 1473. Therefore, Setser does not provide
Serrato with a basis for relief.
“Section 2241 [of Title 28] is the proper procedural vehicle if a prisoner
challenges the execution of his sentence rather than the validity of his
conviction and sentence.” Gallegos-Hernandez v. United States, 688 F.3d 190,
194 (5th Cir. 2012) (internal quotation marks and citation omitted). As a
§ 2241 petition must be filed in the district where the prisoner is held, see
§ 2241(a); Setser, 132 S. Ct. at 1473, and Serrato is incarcerated in California,
the district court lacked jurisdiction to entertain a § 2241 claim seeking a
sentence credit. Serrato has provided no authority for his assertion that the
district court otherwise erred in denying his motion.
Serrato has not shown that there is a nonfrivolous issue for appeal. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); Howard v. King, 707 F.2d
215, 220 (5th Cir. 1983). Accordingly, his motion for leave to proceed IFP on
appeal is DENIED, and the appeal is DISMISSED as frivolous. See 5TH CIR.
R. 42.2; Baugh, 117 F.3d at 202 & n.24.
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