United States v. Jones , 329 F. App'x 573 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 30, 2009
No. 08-20647
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EVANS LEE JONES,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:99-CR-404-ALL
Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
In 1999, Evans Lee Jones, federal prisoner # 83852-079, was convicted of
two counts of bank robbery and one count of possession of a firearm as a felon.
The district court sentenced Jones concurrently to 120 months of imprisonment
on the firearm count and 125 months of imprisonment on the bank robbery
counts.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-20647
In 2008, Jones filed a pleading entitled, “Request for Nunc Pro Tunc
Review of Sentence.” Jones alleged that he was not credited for 220 days he
spent in custody prior to being sentenced. Jones asked the district court to
consider his good behavior and continuing education during his nine years in
prison. The district court denied Jones’s motion without assigning reasons or
ordering a response from the Government.
Jones now appeals the denial of his pro se motion, arguing that he is
entitled to credit for 220 days that he spent in custody before he was sentenced;
the district court did not consider U.S.S.G. § 5G1.3 in determining whether his
federal and state sentences should run concurrently or consecutively; and his
postconviction rehabilitation should be considered.
Jones’s argument that he did not receive presentence credit for 220 days
that he spent in custody is not cognizable in 28 U.S.C. § 2255 proceedings; such
an argument must be addressed under 28 U.S.C. § 2241. See United States v.
Brown, 753 F.2d 455, 456 (5th Cir. 1985). As Jones is not incarcerated in the
Southern District of Texas, the district court did not have jurisdiction to consider
such an argument from Jones. See id.Jones’s argument that the district court failed to correctly apply the
Sentencing Guidelines is not cognizable under § 2255. See United States v.
Segler, 37 F.3d 1131, 1134 (5th Cir. 1994). His request for a reduced sentenced
based on his good behavior in jail is also not cognizable under § 2255. See
§ 2255(a); Segler, 37 F.3d at 1137 (noting Congress’s intent to “limit the types of
claims cognizable under § 2255 to claims relating to unlawful custody”).
The judgment of the district court is MODIFIED to reflect a dismissal in
part due to the district court’s lack of jurisdiction to entertain Jones’s request for
presentence credit for 220 days that he spent in custody, and this judgment is
AFFIRMED as so modified.
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