U.S. v. Weathersby

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 20, 1992
• Docket: 91-2433
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS for the Fifth Circuit

_____________________________________

No. 91-2433 Summary Calendar

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

______________________________________________________ (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

2 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).

3 For those reasons, Weathersby cannot prevail. The judgment of

the district court is

AFFIRMED.