UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4969
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLITO HARRIS CARTER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:00-cr-00194-1)
Submitted: October 4, 2010 Decided: October 14, 2010
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Edward H. Weis, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, Monica K. Schwartz, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The district court revoked Carlito Harris Carter’s
supervised release and sentenced him to a term of one month in
prison and forty-seven months less one day of supervised
release. On appeal, Carter challenges his sentence. 1 Because
the district court did not abuse its discretion, we affirm.
Carter contends that the district court imposed an
illegal sentence because, under the terms of 18 U.S.C. § 3583
applicable at the time of his underlying offense, he could only
be sentenced to a total of three years in prison for all
violations of his supervised release stemming from the same
underlying offense. He claims that he had already served that
time, and could not be sentenced to a further term of supervised
release. Carter is correct that under § 3583(e)(3), he could
only be sentenced to an aggregate of three years of
incarceration, and that under § 3583(h), the district court may
not impose further supervised release if he had served the
maximum under § 3583(e)(3). He is incorrect, though, to assert
that the district court should have considered his time served
in state custody on pending (and later dismissed) state charges
when determining whether he had already served the maximum
1
Carter completed the term of imprisonment prior to the
completion of appellate briefing; his challenge thus relates
only to the imposition of supervised release.
2
sentence for violating his supervised release. The decision
whether that time should be calculated toward his federal
sentence is one for the Attorney General and the Bureau of
Prisons, and not the district court. 2 See United States v.
Wilson, 503 U.S. 329, 332 (1992). Indeed, because the district
court was not authorized to credit time Carter served in state
custody, counting that time toward the § 3583(e)(3) maximum
would have been error.
We therefore affirm Carter’s sentence. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
2
If the Bureau of Prisons does determine that Carter is
entitled to credit for his time spent in state custody, the
proper remedy would likely be a motion pursuant to 18 U.S.C.A.
§ 2255. We express no opinion on the merits of such a motion.
3