Mack R. Gibson v. Constance C. Reese

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-3030
___________
Mack R. Gibson, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
Constance C. Reese, Sued as * [UNPUBLISHED]
Constance Reese, Warden, *
*
Appellee. *
___________
Submitted: February 6, 2003
Filed: February 10, 2003
___________
Before BYE, FAGG and RILEY, Circuit Judges.
___________
PER CURIAM.
Federal inmate Mack R. Gibson appeals the district court’s1 dismissal of his 28
U.S.C. § 2241 petition. We affirm.
In February 1994, Gibson was arrested for selling cocaine. His parole was
revoked, and he was imprisoned from the date of his arrest until February 20, 1996,
1
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable Franklin
L. Noel, United States Magistrate Judge for the District of Minnesota.
his mandatory release date. Meanwhile, in November 1995, the government indicted
him on two counts of drug trafficking for selling the cocaine; after a jury trial, Gibson
was sentenced on October 2, 1996, to 120 months imprisonment. The judgment
stated this sentence was concurrent with any remaining parole-violation time, and
recommended that Gibson receive credit for time served since December 13, 1995.
The Bureau of Prisons (BOP), however, gave Gibson credit only from February 20,
1996. Gibson filed his section 2241 petition, seeking credit for time he served before
that date, and asserting various challenges to the validity of his sentence.
Under 18 U.S.C. § 3585(b), the BOP could give Gibson credit on his instant
sentence only for time not credited towards a prior sentence, and the time he spent in
custody before February 20, 1996, had been credited to his parole-violation sentence.
Further, the BOP had authority to determine the amount of credit Gibson was to
receive, and was not bound by the sentencing recommendation. See United States v.
Wilson, 503 U.S. 329, 335 (1992). Gibson’s challenges to the validity of his
sentence--as opposed to its execution--must be brought in a 28 U.S.C. § 2255 motion.
See Matheny v. Morrison, 307 F.3d 709, 711 (8th Cir. 2002).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-2-