Dwight Branch v. Cheron Nash

Fifth Circuit

Dwight Branch v. Cheron Nash

669 F. App'x 774

CourtCourt of Appeals for the Fifth Circuit

DecidedOctober 19, 2016

Docket15-50822 Summary Calendar

StatusUnpublished

This text of 669 F. App'x 774 (Dwight Branch v. Cheron Nash) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dwight Branch v. Cheron Nash, 669 F. App'x 774 (5th Cir. 2016).

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PER CURIAM: *

Dwight Romaro Branch, federal prisoner #23892-077, filed a 28 U.S.C. § 2241 petition in which he challenged (1) his 20-year sentence for robbery and firearm offenses and (2) the Bureau of Prisons’ (BOP) denial of his request for a nunc pro tunc designation of state prison as the place for the service of his federal sentence. The district court dismissed the petition in part and denied it in part.

On appeal, Branch contends that he is entitled to resentencing because the pre-sentence report’s failure to advise the fed *775 eral sentencing court of his pending state charges resulted in the court’s failure to designate whether his federal sentence would be served concurrently with any potential state sentence. Citing U.S.S.G. § 5G1.3(b), Branch also argues that the district court did not properly sentence him under the Guidelines because his state and federal sentences arose from the same course of conduct. These arguments concern errors that occurred at sentencing and are properly raised in a 28 U.S.C. § 2255 motion. See Padilla v. United States, 416 F.3d 424, 426 (5th Cir. 2005). Branch has not shown that the remedy provided under § 2255 is inadequate or ineffective, and he therefore may not bring his sentencing claims under § 2241. See Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000).

With respect to the nunc pro tunc designation, which would have effectively made his federal sentence run concurrently with his expired state sentence for the same conduct, Branch contends that the BOP abused its discretion in denying his request because the BOP considered only the federal sentencing judge’s opinion that the sentences should be served consecutively. Branch also contends that, in evaluating his request, the BOP should have considered the fact that his federal and state sentences arose from the same course of conduct.

The federal sentencing court provided a through explanation for its recommendation that Branch’s request be denied. See 18 U.S.C. § 3621(b)(4). The record establishes that the BOP conducted a proper inquiry of the § 3621(b) factors before determining that a nunc pro tunc designation was not warranted. The district court did not err in upholding the BOP’s decision. See § 3621(b); Christopher v. Miles, 342 F.3d 378, 381 (5th Cir. 2003).

AFFIRMED.

*

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,

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PER CURIAM: *

Dwight Romaro Branch, federal prisoner #23892-077, filed a 28 U.S.C. § 2241 petition in which he challenged (1) his 20-year sentence for robbery and firearm offenses and (2) the Bureau of Prisons’ (BOP) denial of his request for a nunc pro tunc designation of state prison as the place for the service of his federal sentence. The district court dismissed the petition in part and denied it in part.

On appeal, Branch contends that he is entitled to resentencing because the pre-sentence report’s failure to advise the fed *775 eral sentencing court of his pending state charges resulted in the court’s failure to designate whether his federal sentence would be served concurrently with any potential state sentence. Citing U.S.S.G. § 5G1.3(b), Branch also argues that the district court did not properly sentence him under the Guidelines because his state and federal sentences arose from the same course of conduct. These arguments concern errors that occurred at sentencing and are properly raised in a 28 U.S.C. § 2255 motion. See Padilla v. United States, 416 F.3d 424, 426 (5th Cir. 2005). Branch has not shown that the remedy provided under § 2255 is inadequate or ineffective, and he therefore may not bring his sentencing claims under § 2241. See Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000).

With respect to the nunc pro tunc designation, which would have effectively made his federal sentence run concurrently with his expired state sentence for the same conduct, Branch contends that the BOP abused its discretion in denying his request because the BOP considered only the federal sentencing judge’s opinion that the sentences should be served consecutively. Branch also contends that, in evaluating his request, the BOP should have considered the fact that his federal and state sentences arose from the same course of conduct.

The federal sentencing court provided a through explanation for its recommendation that Branch’s request be denied. See 18 U.S.C. § 3621(b)(4). The record establishes that the BOP conducted a proper inquiry of the § 3621(b) factors before determining that a nunc pro tunc designation was not warranted. The district court did not err in upholding the BOP’s decision. See § 3621(b); Christopher v. Miles, 342 F.3d 378, 381 (5th Cir. 2003).

AFFIRMED.

*

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,

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