Smith v. United States ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40595
Conference Calendar
TERRY ANTHONY SMITH,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:00-CV-677
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December 12, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Terry Anthony Smith, federal prisoner # 04120-078, appeals
the district court’s dismissal of his 28 U.S.C. § 2241 petition
in which he sought to have his sentence corrected to include
credit for time spent in Texas custody pursuant to 18 U.S.C.
§ 3585(b) and U.S.S.G. § 5G1.3(b). Smith’s arguments on appeal
make it clear that the relief he is seeking, although he filed a
28 U.S.C. § 2241 petition, is properly the subject of a 28 U.S.C.
§ 2255 proceeding. Smith is not actually seeking sentencing
credit which might be granted by the Bureau of Prisons. He is
*
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that this opinion should not be published and is not precedent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. 01-40595
-2-
challenging the district court’s alleged misapplication of the
sentencing guidelines, in particular,
§ 5G1.3(b), at sentencing. He is challenging the imposition of
his sentence by the trial court, not the execution of his
sentence. He cites United States v. Dorsey, 166 F.3d 558 (3rd
Cir. 1999) and United States v. Kiefer, 20 F.3d 874 (8th Cir.
1994) in support of his argument that the district court should
have reduced his sentence at the time of imposition to account
for time spent in state custody for his state conviction based on
the same facts.
Smith’s reliance upon Dorsey and Kiefer and application note
2 to § 5G1.3 is misplaced. Those cases were both direct appeals.
Whether the district court should have reduced his sentence
pursuant to § 5G1.3 is an issue that challenges the correctness
of his sentence and as such should have been raised on direct
appeal or in his first motion to correct an illegal sentence
pursuant to 28 U.S.C. § 2255. The district court did not err in
construing his § 2241 petition as a § 2255 motion. Section 2255
did not offer an inadequate and ineffective remedy. His claim
could have been addressed on direct appeal or in his first § 2255
motion if he had raised it in the context of a constitutional
argument. Considering the numerous challenges Smith has made to
this conviction and sentence, this appeal is DISMISSED AS
FRIVOLOUS. See 5TH CIR. R. 42.2.