eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fifth Circuit
 2004-03

United States v. Robles-Nunez ( 2004 )


Menu:
 
  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41429
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE DAVID ROBLES-NUNEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:99-CR-27-1
--------------------
September 27, 2000
Before DAVIS, JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Jose David Robles-Nunez (“Robles”) appeals his guilty-plea
conviction for one count of unlawful presence in the United
States in violation of
    8 U.S.C. § 1326
    (a).    Although the
Government argues that Robles waived his appellate issues in his
plea agreement, we pretermit this issue in light of United States
v. Robinson,
    187 F.3d 516
    , 518 (5th Cir. 1999), and address the
merits of Robles’ claims.
Robles first argues that there was an insufficient factual
basis for his plea because he is not in fact an alien.    Robles
*
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that this opinion should not be published and is not precedent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. 99-41429
-2-
argues that the district court erred by finding him to be an
alien because he had resided in the United States for the
majority of his life and, therefore, is an American national.
“The district court’s acceptance of a guilty plea is
considered a factual finding that there is an adequate basis for
the plea.    We therefore review this finding for clear error.”
United States v. Rivas,
    85 F.3d 193
    , 194 (5th Cir. 1996).       Robles
does not provide any legal support for his proposition that being
a long-term resident of the United States and having a subjective
belief that he owes permanent allegiance to this country confers
national status upon an individual, nor have we found any such
support.    In fact, each case cited to by Robles has held the
opposite of his contention.    See United States v. Sotelo,
    109 F.3d 1446
    , 1448 (9th Cir. 1997)(national status is primarily
attained through birth); Oliver v. United States Dep’t. of
Justice, INS,
    517 F.2d 426
    , 427 (2nd Cir. 1975)(lengthy residence
in the United States did not confer national status).    This
contention has no merit and the district court did not clearly
err in accepting his plea.
Robles’ second contention is that the district court erred
by determining that it did not have the authority to insure that
he was given credit on his federal sentence for the time he
served after he voluntarily surrendered his bond and was in a
state facility.    Under
    18 U.S.C. § 3585
    (b), a defendant is to be
given credit toward his federal sentence for any time he spent in
official detention prior to being received into federal custody
“that has not been credited against another sentence.”    However,
No. 99-41429
-3-
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.
Wilson,
    503 U.S. 329
    , 335 (1992).
Although Robles argues that other circuits have interpreted
Wilson to allow the district courts to give credit for time
served in state custody, those cases, to the extent that they may
obtain a different result from Wilson, are not persuasive in this
instance because they involve the application of provisions in
the Sentencing Guidelines.    Accordingly, Robles must request such
credit directly from the Bureau of Prisons.    See United States v.
Dowling,
    962 F.2d 390
    , 393 (5th Cir. 1992).
AFFIRMED.