United States v. Perez ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 28, 2008
No. 07-20310
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
NACER TEOFILO PEREZ. also known as Hector Calderen
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:00-CR-875-3
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Nacer Teofilo Perez, federal prisoner # 97224-079, pleaded guilty in 2001
to conspiracy to possess with intent to distribute cocaine in violation of
21 U.S.C. § 846. The district court sentenced Perez to 121 months of
imprisonment and ordered that he serve his term of imprisonment consecutive
to the seven-year sentence he was then serving in the State of Georgia. Perez
did not directly appeal his conviction or sentence.
*
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should not be published and is not precedent except under the limited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. 07-20310
In 2006, Perez filed a nunc pro tunc motion in which he argued (1) that the
district court misapplied U.S.S.G. § 5G1.3 when it ordered that his federal
sentence run concurrent to his state sentence, and (2) that the Bureau of Prisons
(BOP) had incorrectly denied him a sentence credit for the time he spent in state
custody. The district court denied Perez’s motion, construing it as untimely
under 28 U.S.C. § 2255. In the alternative, the district court further concluded
that the motion was without merit because the BOP had correctly calculated
Perez’s sentence.
On appeal, Perez argues that his motion arose under 28 U.S.C. § 2241rather than § 2255 and reurges the merits of his claims. In the alternative,
Perez asserts that his claims are timely under § 2255, ¶ 6, (4). Perez also asserts
that the district court abused its discretion when it failed to conduct an
evidentiary hearing to determine whether his state and federal sentences should
have been ordered to run concurrently.
Section 2255 is the primary means of collaterally attacking a federal
sentence. The record reflects that Perez’s sentence credit claim in inextricably
intertwined with, and in fact derivative of, his claim that the district court
misapplied the sentencing guidelines. Unless Perez can establish that the
district court's order imposing the consecutive sentence was error, he will not
be entitled to the sentence credit he seeks. Thus, because Perez's claim was
fundamentally a challenge to his consecutive sentence, the district court did not
err in concluding that his claim arose under § 2255 and that it was untimely.
Because Perez did not present any arguments in the district court regarding the
timeliness of his motion, we will not consider such arguments here. Bower v.
Quarterman, 497 F.3d 459, 475 (5th Cir. 2007) (claims presented for the first
time on appeal are not considered). Finally, because the record conclusively
establishes that Perez was not entitled to relief under § 2255, the district court
did not abuse its discretion when it failed to conduct an evidentiary hearing
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No. 07-20310
regarding Perez’s claims. See United States v. Bartholomew, 974 F.2d 39, 41
(5th Cir. 1992).
The district court’s judgment is AFFIRMED.
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