Johnson v. Smith , 390 F. App'x 689 ( 2010 )

FILED
NOT FOR PUBLICATION AUG 02 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JERALD LAVELLE JOHNSON, No. 08-15401
Petitioner - Appellant, D.C. No. 07-cv-00714-OWW
v.
DENNIS SMITH, Warden, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Submitted July 19, 2010 **
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
Former federal prisoner Jerald Lavelle Johnson appeals pro se from the
district court’s judgment denying his 28 U.S.C. § 2241 petition. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.
Johnson contends the district court erred by denying his petition because the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
sentencing court ordered his federal sentence to run concurrent with the state
sentence he was serving, and thus he was entitled to credit for all of the time he
served in state custody. This contention fails because Johnson’s federal prison
term could not begin earlier than the date on which it was imposed. See 18 U.S.C.
§ 3585(a). Further, contrary to Johnson’s contention, U.S.S.G. § 5G1.3 does not
assist his case. See United States v. Arellano-Torres, 303 F.3d 1173, 1180
(9th Cir. 2002) (affirming district court’s imposition of consecutive sentence under
§ 5G1.3(c) where defendant had committed the federal crime while he was on state
probation); see also U.S.S.G. § 5G1.3 cmt. n.3(E) (recommending that any
downward departure be clearly stated on the judgment). Accordingly, the district
court did not err by concluding that Johnson was not entitled to relief.
AFFIRMED.
2 08-15401