Richard Cruz v. Scott Willis, Warden ( 2019 )

Case: 19-30074 Document: 00515170745 Page: 1 Date Filed: 10/23/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-30074 FILED
Summary Calendar October 23, 2019
Lyle W. Cayce
Clerk
RICHARD CRUZ,
Petitioner-Appellant
v.
SCOTT WILLIS, Warden,
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:18-CV-1649
Before HAYNES, GRAVES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
On April 8, 2013, Richard Cruz, federal prisoner # 37737-069, pleaded
guilty to conspiracy to possess with intent to distribute at least three and one-
half but less than five kilograms of cocaine within 1000 feet of a protected
location and was sentenced to 96 months of imprisonment in the District of
Puerto Rico. On August 18, 2015, he pleaded guilty to conspiracy to possess
with intent to distribute over five hundred grams of cocaine and unlawful use
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 19-30074 Document: 00515170745 Page: 2 Date Filed: 10/23/2019
No. 19-30074
of a communication facility in the District of Massachusetts, and was
sentenced to a total of 84 months of imprisonment; the court ordered that 60
months of the sentence be served concurrently with the Puerto Rico sentence
and 24 months of the sentence be served consecutively to that sentence.
Cruz moves for leave to proceed in forma pauperis (IFP) on appeal from
the denial of his 28 U.S.C. § 2241 petition challenging the manner in which his
Massachusetts sentence is being executed. He argues that he was entitled to
credit against his Massachusetts sentence for the time period from September
13, 2012, the date of his arrest, until August 18, 2015, the date of his
sentencing in that case. To proceed IFP, Cruz must demonstrate financial
eligibility and a nonfrivolous issue for appeal. See FED. R. APP. P. 24(a); 28
U.S.C. § 1915(a)(1); Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).
The Bureau of Prisons (BOP) gave Cruz credit against his Puerto Rico
sentence for the time served from September 13, 2012, to April 8, 2013, the
date of his sentencing in the Puerto Rico case and for the time served from
April 8, 2013, to August 18, 2015. His Massachusetts sentence did not begin
to run until his sentencing in that case on August 18, 2015. Because he had
already received credit for the time period at issue against his Puerto Rico
sentence, the district court correctly held that the BOP did not err in finding
that Cruz was not entitled to credit against his Massachusetts case for that
time period. See 18 U.S.C. § 3585(b); United States v. Wilson, 503 U.S. 329,
337 (1992); Leal v. Tombone, 341 F.3d 427, 430 (5th Cir. 2003).
For these reasons, Cruz has not shown that he will raise a nonfrivolous
issue for appeal. See Carson, 689 F.2d at 586; Springer v. Willis, 653 F. App’x
324, 324 (5th Cir. 2016) (applying Carson to a § 2241 case). Accordingly,
Cruz’s IFP motion is DENIED, and his appeal is DISMISSED as frivolous.
See 5TH CIR. R. 42.2.
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