Raymond Potoski v. John Fox ( 2014 )

Case: 13-41001 Document: 00512821109 Page: 1 Date Filed: 10/30/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-41001 FILED
Summary Calendar October 30, 2014
Lyle W. Cayce
Clerk
RAYMOND C. POTOSKI,
Petitioner-Appellant
v.
JOHN B. FOX,
Respondent-Appellee
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 1:11-CV-539
Before KING, JOLLY, and HAYNES, Circuit Judges
PER CURIAM: *
Raymond C. Potoski, federal prisoner # 72713-083, appeals the district
court’s denial of his 28 U.S.C. § 2241 petition, challenging the Bureau of
Prison’s (BOP) calculation of his 84-month sentence for his 2008 arson
conviction. He renews his assertion that he is entitled to credit toward his
federal sentence for all of the time he spent in pretrial detention and state
custody.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-41001 Document: 00512821109 Page: 2 Date Filed: 10/30/2014
No. 13-41001
The undisputed facts show that Potoski received credit toward his state
sentence for the time he spent in state and federal pretrial custody. The BOP
thus properly denied crediting the same time toward his federal sentence. See
18 U.S.C. § 3585(b); see also Leal v. Tombone, 341 F.3d 427, 430 (5th Cir. 2003).
The federal district court had the discretion to order Potoski’s federal sentence
to run consecutively to his then-anticipated state sentence, and the BOP
correctly presumed from the district court’s not specifying a concurrent
sentence that it intended to impose a consecutive sentence. See 18 U.S.C.
§ 3584(a); Setser v. United States, 132 S. Ct. 1463, 1466-73 (2012). The state
court’s designation that Potoski’s state sentence was to run concurrently with
the federal sentence did not have any bearing on the district court’s judgment
and is irrelevant to the BOP’s computation. See Leal, 341 F.3d at 428-29 &
n.13. Similarly, because the federal judgment did not specify concurrent
sentences, Willis v. United States, 438 F.2d 923 (5th Cir. 1971), is inapplicable.
Moreover, Potoski has not demonstrated that the district court abused its
discretion in declining to make a nunc pro tunc designation of his state prison
as the place at which his federal sentence was being served given the federal
sentencing judge’s strong opposition to such designation. See 18 U.S.C.
§ 3621(b).
Accordingly, the district court’s judgment is AFFIRMED.
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