Bailes v. Booker ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 10 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
GEORGE BAILES, III,
Petitioner-Appellant,
v. No. 97-1144
(D.C. No. 96-B-2024)
J.W. BOOKER, Warden, (D. Colo.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is
ordered submitted without oral argument.
Petitioner George Bailes, III, a federal inmate appearing pro se, appeals the
district court's order dismissing his petition for habeas relief under 28 U.S.C. §
2241. We affirm. Bailes contends he should receive pretrial confinement credit
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
for time spent in federal custody after the writ of habeas corpus ad prosequendum
was executed and before he was sentenced for violating 18 U.S.C. § 922(g)(1).
Specifically, he seeks credit on his federal sentence for the period he spent in
confinement from July 7, 1994, through December 7, 1994.
Bailes was arrested in California for state parole violation on February 5,
1994, for absconding, illegally possessing a firearm, and resisting arrest, and he
was sentenced to one year of imprisonment. Based on these events, the United
States charged Bailes with being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). A writ of habeas corpus ad prosequendum was issued for
him to appear and answer the federal charges, and he was taken into federal
custody on July 7, 1994. On December 8, 1994, Bailes was sentenced to seventy
months' imprisonment and three years' supervised release. On January 27, 1995,
Bailes was transferred to Colorado to begin serving his federal sentence. Bailes
received credit on his state sentence for the time he spent in custody from
February 5, 1994, through February 5, 1995, when his state sentence expired.
It was originally determined that Bailes' federal sentence would begin on
February 5, 1995, after his state sentence expired. However, on August 1, 1995,
the Bureau of Prisons issued a nunc pro tunc order declaring that his federal
sentence began on December 8, 1994, the date he was sentenced for violating §
922(g)(1). Bailes challenges this determination, arguing his federal sentence
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should be calculated from July 7, 1994, the date he was taken into federal custody
pursuant to the writ of habeas corpus ad prosequendum. 1
Bailes' argument ignores the plain language of 18 U.S.C. § 3585(b), which
allows a defendant to receive credit for presentence confinement, but only for
confinement "that has not been credited against another sentence." In analyzing
this statute, the Supreme Court explained that "Congress made clear that a
defendant could not receive double credit for his detention time." United States
v. Wilson, 503 U.S. 329, 337 (1992). Bailes' presentence confinement from July
7, 1994, through December 7, 1994, was credited against his state sentence. He
may not receive credit on his federal sentence for this same confinement. See
also United States v. Dennis, 926 F.2d 768, 769 (8th Cir. 1991).
AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
1
Bailes also argues his federal sentence should be credited with time spent in state
custody between February 5, 1994, and July 7, 1994. However, he cites no authority and
18 U.S.C. § 3585(b) clearly does not authorize such a result. Instead, § 3585(b) is
intended to allow federal inmates to receive credit for federal presentence confinement on
federal charges. Bailes was in state confinement for violating state law between February
5, 1994, and July 7, 1994.
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