United States v. Easton ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20116 c/w
No. 00-20118
No. 00-20485
No. 00-20486
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL EASTON, also known as Michael Joseph Bitgood,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. H-98-CR-99-ALL
USDC No. H-98-CR-171-1
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March 1, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Michael Easton, Texas prisoner #00386843, appeals from the
denial of his motion seeking mandamus relief and requesting to
withdraw his federal guilty pleas and from the denial of his
motion for modification of his sentences. Easton sought to have
his federal sentences run concurrently with a state sentence that
was imposed after his federal sentences were imposed, and he
*
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that this opinion should not be published and is not precedent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.
Nos. 00-20116, 00-20118, 00-20485, 00-20486
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sought to withdraw his guilty plea on the ground that the
Government breached its plea agreement with him.
Easton does not argue that district court erred by denying
his motion for modification of his federal sentences despite
having taken an appeal from the denial of that motion. Easton
has abandoned any such argument for appeal. In re Municipal Bond
Reporting Antitrust Litigation, 672 F.2d 436, 439 n.6 (5th Cir.
1982). The only issues remaining for appeal are those arising
from the denial of Easton’s motion seeking mandamus relief and
the withdrawal of his guilty pleas.
Easton contends that the district court erred by denying his
request for mandamus relief ordering the United States Marshal to
take him into federal custody. He argues that the district court
ordered the Marshal to take him into custody at sentencing and
that the State waived primary jurisdiction over him, creating a
right for mandamus to issue. According to Easton, the district
court’s pronouncement at sentencing overrode the writ of habeas
corpus ad prosequendum pursuant to which he appeared for
sentencing and entitled him to have his sentences equitably
modified to run concurrently with his state sentence. Easton
finally argues regarding his mandamus request that the district
court erred by failing to hold an evidentiary hearing.
The Attorney General has discretion to designate a state
facility nunc pro tunc as the place in which a federal prisoner
serves his sentence. United States v. Garcia-Gutierrez, 835 F.2d
585, 587 (5th Cir. 1988); 18 U.S.C. § 3621(b). The Bureau of
Prisons (BOP) may exercise the Attorney General’s discretion in a
Nos. 00-20116, 00-20118, 00-20485, 00-20486
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manner so as to allow a prisoner to serve his state and federal
terms of imprisonment concurrently with one another. Romandine
v. United States, 206 F.3d 731, 738 (7th Cir. 2000); McCarthy v.
Doe, 146 F.3d 118, 123 (2d Cir. 1998); Barden v. Keohane, 921
F.2d 476, 483 (3d Cir. 1991).
Easton may seek relief from the BOP by asking for
designation of his current place of incarceration as the
institution for service of his federal sentence. See BOP Program
Statement 5160.04 ¶ 9(d). Should the BOP determine the issue
unfavorably to Easton, then Easton may pursue habeas corpus
relief pursuant to 28 U.S.C. § 2241. See Garcia-Gutierrez, 835
F.3d at 586. Because Easton has a remedy available to him under
§ 2241, the district court did not err by denying his request for
mandamus relief. In re Willy, 831 F.2d 545, 549 (5th Cir. 1987),
aff’d, 503 U.S. 131 (1992).
We have reviewed Easton’s arguments regarding the district
court’s pronouncements at sentencing and the effect of the state
court’s judgment on Easton’s federal sentences. We reject those
arguments. The district court did not err by denying the
mandamus request based on those arguments.
Easton contends that the district court erred by denying his
request to withdraw his guilty pleas and for denying the request
without holding an evidentiary hearing. Whether Easton filed a
presentence, pro se motion to withdraw his plea is irrelevant
now. Easton did not take a direct appeal from his convictions;
any presentence motion would not be reviewable now. See FED. R.
Nos. 00-20116, 00-20118, 00-20485, 00-20486
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APP. P. 4(b)(1)(A)(defendant has ten days to file notice of
appeal).
Regarding the motion that was denied by the district court,
after sentence is imposed, a defendant may have his plea set
aside “only on direct appeal or by motion under 28 U.S.C.
§ 2255.” FED. R. CRIM. P. 32(e). Easton did not take a direct
appeal, and he did not seek relief through a § 2255 motion.
Unless the request sounded in § 2255, the district court lacked
jurisdiction to consider it. See Rule 32(e).
It is clear from the record that Easton was not entitled to
mandamus relief and that the district court lacked jurisdiction
to consider his plea-withdrawal motion. No evidentiary hearing
was necessary in Easton’s case. See Alberti v. Klevenhagen, 46
F.3d 1347, 1358 (5th Cir. 1995).
AFFIRMED.