United States v. Santiago Esparza , 947 F.2d 946 ( 1991 )

947 F.2d 946

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Santiago ESPARZA, Defendant/Appellant

No. 91-1657.

United States Court of Appeals, Sixth Circuit.

Nov. 5, 1991.

1

Before RYAN and BOGGS, Circuit Judges, and HOOD, District Judge*.

ORDER

2

Santiago Esparza, a pro se federal prisoner currently confined in Yankton, South Dakota, appeals from a district court judgment denying his "motion for an alternative sentence." This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

In 1990, Esparza pleaded guilty to conspiracy to distribute controlled substances. He was sentenced to forty-one months imprisonment. Esparza then filed the present "motion for an alternative sentence." The motion requests that, pursuant to the Crime Control Act of 1990, he be removed from incarceration and placed in an alternative program, such as a half-way house, electronic monitoring or home confinement. The district court denied his motion. Esparza has filed a timely appeal and a motion requesting the appointment of counsel.

4

Initially we note that, as Esparza's motion challenged the execution of his sentence and involved judicial review of events occurring after his sentence, his motion is properly cognizable as a petition for writ of habeas corpus under 28 U.S.C. § 2241. Cohen v. United States, 593 F.2d 766, 770 (6th Cir.1979). Consequently, Esparza should have filed his motion in the district where he is confined and not in the sentencing court. United States v. Leath, 711 F.2d 119, 120 (8th Cir.1983).

5

The motion is nonetheless without merit. Esparza's sentencing guideline range was thirty-three to fort-one months imprisonment. As his minimum sentence exceeded ten months, Esparza is ineligible for alternative sentencing. U.S.S.G. § 5C1.1(f).

6

Accordingly, we deny counsel and affirm the district court's judgment. Rule 9(b)(3), Rules of the Sixth Circuit.

*

The Honorable Joseph M. Hood, U.S. District Judge for the Eastern District of Kentucky, sitting by designation