Falcetta v. United States , 155 F. App'x 762 ( 2005 )


Menu:
  •                                                         United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                November 22, 2005
    Charles R. Fulbruge III
    Clerk
    No. 05-20056
    Summary Calendar
    JOSEPH JAMES FALCETTA, JR.,
    Petitioner-Appellant,
    versus
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:04-CV-2146
    --------------------
    Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Joseph James Falcetta, Jr., Texas prisoner number 822447,
    robbed a bus that was traveling from Dallas, Texas, to a casino
    in Louisiana.   He was then convicted of federal charges of armed
    robbery of a motor vehicle and possession of a firearm during a
    crime of violence and sentenced to serve 191 months in prison.
    He was also convicted of state charges of aggravated robbery and
    sentenced to serve 44 years in prison.   Falcetta filed a
    
    28 U.S.C. § 2241
     habeas corpus petition to challenge the
    *
    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    this opinion should not be published and is not precedent except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. 05-20056
    -2-
    consecutive manner in which his sentences are being served, and
    he now appeals the district court’s dismissal of his § 2241
    petition.   Falcetta argues that his federal sentence should have
    been imposed to run concurrently with his prospective state
    sentence under U.S.S.G. § 5G1.3(b), that his sentences cannot be
    imposed to run consecutively under 
    18 U.S.C. § 3584
    , and that the
    federal sentencing judge did not intend for his sentences to be
    consecutive.   He also argues that his sentences are improper
    under Blakely v. Washington, 
    124 S. Ct. 2531
     (2004).
    In analyzing the propriety of the district court’s dismissal
    of Falcetta’s § 2241 petition, we review the district court’s
    findings of fact for clear error.    Free v. Miles, 
    333 F.3d 550
    ,
    552 (5th Cir. 2003).   We apply de novo review to the district
    court’s disposition of legal issues.    
    Id.
       There is nothing in
    the record to indicate that the sentencing judge wanted
    Falcetta’s sentences to run concurrently, nor does the statute
    require that they do so.    Falcetta’s § 5G1.3(b) argument relates
    to an error that occurred at sentencing and thus should not be
    considered in this § 2241 action.    See Pack v. Yusuff, 
    218 F.3d 448
    , 452 (5th Cir. 2000).   We decline to consider Falcetta’s
    Blakely argument because it was not presented to the district
    court.   See Varnado v. Lynaugh, 
    920 F.2d 320
    , 321 (5th Cir.
    1991).   Falcetta has not shown that the district court erred in
    rejecting his arguments and dismissing his § 2241 petition.
    Consequently, the judgment of the district court is AFFIRMED.
    

Document Info

Docket Number: 05-20056

Citation Numbers: 155 F. App'x 762

Judges: Benavides, Dennis, Higginbotham, Per Curiam

Filed Date: 11/22/2005

Precedential Status: Non-Precedential

Modified Date: 8/2/2023