United States v. Jose Torres-Hurtado

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50125
Plaintiff-Appellee, D.C. No. 2:04-cr-00186-CBM-9
v.
MEMORANDUM*
JOSE TORRES-HURTADO, AKA Miguel
Angel Corraliza Sanchez,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding
Submitted February 4, 2020**
Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.
Jose Torres-Hurtado appeals pro se from the district court’s order denying
his “Motion Requesting District Court to Clarify its Order Regarding Sentence
Imposed.” We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Torres-Hurtado’s motion argued that the Bureau of Prisons (“BOP”) had
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
failed to effectuate the district court’s order to run his 240-month sentence for
conspiracy to distribute cocaine concurrent to his 77-month sentence for illegal
reentry. He requested that the district court clarify the sentence, “reissue” its order,
resentence him, or consider his circumstances and grant him relief. The district
court properly denied Torres-Hurtado’s motion. As the district court found, there
was no ambiguity in its sentencing order that required correction. Furthermore, the
district court correctly concluded that (1) it lacked authority to modify Torres-
Hurtado’s sentence, see 18 U.S.C. § 3582(b), (c); and (2) Torres-Hurtado was not
entitled to any relief because his prior illegal reentry sentence had expired prior to
imposition of the instant sentence, see 18 U.S.C. § 3584(a) (a sentence may be run
concurrently to a separate undischarged term of imprisonment (emphasis added)).
Insofar as Torres-Hurtado challenged the BOP’s execution of his sentence, the
district court correctly observed that such a claim must be brought in a 28 U.S.C.
§ 2241 habeas petition in the Eastern District of California, where Torres-Hurtado
is imprisoned. See Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000).
Torres-Hurtado also argues that the failure to run his sentences concurrently
amounted to a breach of his plea agreement. We decline to consider this claim
because it was not properly raised before the district court. See Smith v. Marsh,
194 F.3d 1045, 1052 (9th Cir. 1999).
AFFIRMED.
2 19-50125