United States v. Alfredo Berrio ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12655 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 6, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:97-cr-00838-JAL-1
UNITED STATES OF AMERICA,
llllllllllllllllllll l Plaintiff-Appellee,
versus
ALFREDO BERRIO,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 6, 2011)
Before HULL, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Alfredo Berrio appeals his 130-month sentence, imposed within the
applicable guideline range, after pleading guilty to a single count of conspiracy to
import cocaine, in violation of 21 U.S.C. § 963. Before Berrio pled guilty, he fled
the country and failed to appear at his initial plea hearing. The district court then
issued a warrant for his arrest. In 2003, after Berrio was arrested in Brazil for an
unrelated offense, provisional warrants were issued for Berrio’s extradition to the
United States. On direct appeal, Berrio argues that he should be given credit for
the time he served in prison in Brazil from the time he was served the provisional
arrest warrants in 2003 for the instant charge until the time his United States
sentence commenced.
The Attorney General through the BOP, and not the district courts, is
authorized, under 18 U.S.C. § 3585(b), to compute sentence credit awards after
sentencing. Dawson v. Scott, 50 F.3d 884, 889 (11th Cir. 1995). The Attorney
General delegated his authority in this area to the BOP. United States v. Lucas,
898 F.2d 1554, 1555-56 (11th Cir. 1990). We have held that the granting of credit
for time served is in the first instance an administrative, not a judicial, function.
United States v. Flanagan, 868 F.2d 1544, 1546 (11th Cir. 1989). The district
court, therefore, cannot circumvent the Attorney General’s initial discretion
concerning whether to credit a defendant’s time in custody prior to sentencing.
Lucas, 898 F.2d at 1555.
Furthermore, an inmate must exhaust his administrative remedies with the
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BOP before seeking judicial relief. Id. In fact, the district court does not have
jurisdiction to consider a defendant’s claim if he fails to exhaust his administrative
remedies. Id.A claim concerning credit for time served is not appropriate on direct
appeal, and should be filed as a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241, against the BOP. See, e.g., Rodriguez v. Lamar, 60 F.3d 745, 746 (11th
Cir. 1995) (noting that defendant filed a § 2241 petition seeking credit for time he
spent at his home under pre-trial, restrictive conditions); Dawson, 50 F.3d at 886(noting that defendant filed a § 2241 petition after exhausting his BOP
administrative remedies, seeking credit for time he spent at a halfway house).
Accordingly, we will not consider Berrio’s claims here on direct appeal.
Upon review of the record and consideration of the parties’ briefs, we
affirm.
AFFIRMED.1
1
Berrio’s request for oral argument is denied.
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