Smith v. United States

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 13, 2001
• Docket: 01-40595
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40595 Conference Calendar

TERRY ANTHONY SMITH,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:00-CV-677 -------------------- December 12, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Terry Anthony Smith, federal prisoner # 04120-078, appeals

the district court’s dismissal of his 28 U.S.C. § 2241 petition

in which he sought to have his sentence corrected to include

credit for time spent in Texas custody pursuant to 18 U.S.C.

§ 3585(b) and U.S.S.G. § 5G1.3(b). Smith’s arguments on appeal

make it clear that the relief he is seeking, although he filed a

28 U.S.C. § 2241 petition, is properly the subject of a 28 U.S.C.

§ 2255 proceeding. Smith is not actually seeking sentencing

credit which might be granted by the Bureau of Prisons. He is

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40595 -2-

challenging the district court’s alleged misapplication of the

sentencing guidelines, in particular,

§ 5G1.3(b), at sentencing. He is challenging the imposition of

his sentence by the trial court, not the execution of his

sentence. He cites United States v. Dorsey, 166 F.3d 558 (3rd

Cir. 1999) and United States v. Kiefer, 20 F.3d 874 (8th Cir.

1994) in support of his argument that the district court should

have reduced his sentence at the time of imposition to account

for time spent in state custody for his state conviction based on

the same facts.

Smith’s reliance upon Dorsey and Kiefer and application note

2 to § 5G1.3 is misplaced. Those cases were both direct appeals.

Whether the district court should have reduced his sentence

pursuant to § 5G1.3 is an issue that challenges the correctness

of his sentence and as such should have been raised on direct

appeal or in his first motion to correct an illegal sentence

pursuant to 28 U.S.C. § 2255. The district court did not err in

construing his § 2241 petition as a § 2255 motion. Section 2255

did not offer an inadequate and ineffective remedy. His claim

could have been addressed on direct appeal or in his first § 2255

motion if he had raised it in the context of a constitutional

argument. Considering the numerous challenges Smith has made to

this conviction and sentence, this appeal is DISMISSED AS

FRIVOLOUS. See 5TH CIR. R. 42.2.