U.S. v. Weathersby ( 1992 )

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 91-2433
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
WALTER WEATHERSBY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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(March 27, 1992)
Before JONES, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:
The Defendant-Appellant, who pleaded guilty to unlawful use of
a communication facility, argues that the time he was free on bond
pending trial should be credited towards the sentence that he
eventually received. We have recently rejected an almost identical
argument. Pinedo v. United States, slip op. 2914 (5th Cir. Feb.
13, 1992). We therefore affirm the judgment of the district court.
After being indicted, Weathersby was arraigned on December 29,
1989, and released on a personal recognizance bond. On September
25, 1990, Weathersby was arrested because of bond violations, and
he was remanded to custody on October 4, 1990. He was eventually
sentenced to twenty-seven months in jail, three years of supervised
release, and a special assessment of $50.
Proceeding pro se, Weathersby invoked 28 U.S.C. § 2255, moving
to receive credit for the time he was free on bond. Section 2255
is not the appropriate vehicle for such a motion; he should have
invoked 28 U.S.C. § 2241. Because he is proceeding pro se, we
construe his pleading liberally and consider it a proper motion
under § 2241. See United States v. Gabor, 905 F.2d 76, 77-78 (5th
Cir. 1990). We are able to construe the purported § 2255 motion,
which must be filed in the district where the prisoner was
convicted, as a § 2241 petition, which must be filed in the
district where the prisoner is incarcerated, because in this case
the prisoner's district of incarceration is the same as the
district of conviction. See id. at 78.
On the merits, however, Weathersby cannot prevail. He bases
his argument on 18 U.S.C. § 3585, which provides: "A defendant
shall be given credit toward the service of a term of imprisonment
for any time he has spent in official detention prior to the date
the sentence commences . . . ." 18 U.S.C. § 3585(b) (emphasis
added). This statute replaced § 3568, which stated: "The Attorney
General shall give any such person credit toward service of his
sentence for any days spent in custody in connection with the
offense or acts for which sentence was imposed." 18 U.S.C. § 3568(emphasis added); Pinedo, slip op. at 2915. Section 3585 applies
to Weathersby because his offense occurred after November 1, 1987.
Pinedo, slip op. at 2915.
Notably, the new statute does not refer to the Attorney
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General. Whether a petitioner must exhaust his administrative
remedies -- which Weathersby has failed to do -- before this Court
can obtain jurisdiction is an open question under the new statute,
and the issue will be decided soon by the Supreme Court. See
United States v. Wilson, 916 F.2d 1115 (6th Cir. 1990), cert.
granted, 112 S.Ct. 48 (1991) (argued Jan. 15, 1992). We noted the
jurisdictional issue without deciding it in United States v.
Bleike, 950 F.2d 214, 217-19 (5th Cir. 1991) (collecting cases).
Because Weathersby cannot prevail, regardless of whether we have
jurisdiction, we pretermit the jurisdictional issue. See Norton v.
Mathews, 427 U.S. 524, 532 (1976) ("'In the past, we similarly have
reserved difficult questions of our jurisdiction when the case
alternatively could be resolved on the merits in favor of the same
party.'"), quoted in Texas Employers' Ins. Ass'n v. Jackson, 862
F.2d 491, 497 n.8 (5th Cir. 1988) (en banc), cert. denied, 490 U.S.
1035 (1989).
The reason that Weathersby cannot succeed on the merits is
that Pinedo rejected his argument. Weathersby argues, as Pinedo
did, that the change in statutory language from "in custody" to
"official detention" effected a change in the law. In Pinedo,
however, we held that the change in language is of "no
consequence." Our precedent decided under former § 3568 remains
applicable under the new statute. Pinedo, slip op. at 2915. And
our precedent precludes a prisoner from receiving credit for time
free on bond. E.g., United States v. Mares, 868 F.2d 151, 152 (5th
Cir. 1989).
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For those reasons, Weathersby cannot prevail. The judgment of
the district court is
AFFIRMED.
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