Button v. USA , 85 F. App'x 996 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 28, 2004
Charles R. Fulbruge III
Clerk
No. 03-50385
Summary Calendar
RICHARD W. BUTTON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA; ROBERT TAPIA, Warden,
Respondents-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-02-CV-421-PRM
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
On March 30, 1999, Richard W. Button, now federal prisoner
#05458-051, was sentenced for conspiracy to possess with intent
to distribute marijuana to 120 months’ imprisonment and four
years’ supervised release. At the time Button was arrested and
charged with that conspiracy offense, he had been serving an
undischarged term of imprisonment for being a felon in possession
of a firearm. Button’s sentence for the conspiracy offense
(hereinafter referred to as “second sentence”) was imposed to run
*
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that this opinion should not be published and is not precedent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. 03-50385
-2-
concurrently with his sentence for the firearm offense
(hereinafter referred to as “first sentence”). He now appeals
the district court’s denial of his federal habeas corpus
petition, filed pursuant to 28 U.S.C. § 2241, seeking credit on
his second sentence for time he spent serving his first sentence.
On appeal, Button argues that he is entitled to credit on
his second sentence for the time he had already served on his
first sentence pursuant to U.S.S.G. § 5G1.3(b) because: (1) a
“concurrent” sentence under U.S.S.G. § 5G1.3(b) is not simply
concurrent with the remainder of the defendant’s undischarged
sentence but is retroactively concurrent with the full term of
the undischarged sentence; and (2) when imposing his second
sentence, the district court intended to grant him the credit he
now seeks. Examination of U.S.S.G. § 5G1.3(b) and the
accompanying Application Note reveals that Button’s first
argument lacks merit. Furthermore, the record contradicts the
factual basis of Button’s second argument.
Accordingly, the district court’s judgment is AFFIRMED.