United States v. Marquez ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10061
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY MORENO MARQUEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:97-CR-81-18-C
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October 17, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Larry Moreno Marquez, Texas prisoner #845763, appeals the
denial of his “Motion for Expedition” seeking a transfer from
state prison to federal prison to serve his concurrent sentences
for conspiracy and possession of controlled substances with the
intent to distribute. Because Marquez seeks to challenge the
execution of his sentence, the proper procedural vehicle for his
claim is a petition pursuant to 28 U.S.C. § 2241. United States v.
Tubwell, 37 F.3d 175, 177 (5th Cir. 1994). Because pro se
pleadings must be liberally construed as seeking the proper remedy,
*
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that this opinion should not be published and is not precedent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.
No. 00-10061
-2-
the court will treat Marquez’s motion as one coming under § 2241.
See United States v. Robinson, 78 F.3d 172, 174 (5th Cir. 1996).
Marquez argues that he should be transferred because he will
not receive credit for his federal sentence until he is in federal
custody. However, a district court is not authorized to compute
service credit under § 3585; credit awards are to be made by the
Attorney General, through the Bureau of Prisons. United States v.
Dowling, 962 F.2d 390, 393 (5th Cir. 1992). Prior to seeking
judicial review of credits under § 3585(b), prisoners are required
to exhaust their administrative remedies. See id. There is no
indication in the record that Marquez has requested that the Bureau
of Prisons credit his federal sentence for the time he is serving
in the state facility. Accordingly, we MODIFY the district court’s
judgment to reflect the denial as without prejudice for failure to
exhaust administrative remedies, see McGrew v. Texas Bd. of Pardons
& Paroles, 47 F.3d 158, 161 (5th Cir. 1995), and AFFIRM the
judgment as modified.
MODIFY JUDGMENT; AFFIRM AS MODIFIED.