Case: 13-30701 Document: 00512615408 Page: 1 Date Filed: 05/01/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-30701 FILED
Summary Calendar May 1, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
DEREK WYANDON,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:10-CR-175-1
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Appellant challenges the district court’s denial of his motion to modify
his sentence, which he characterizes as a motion under Rule 36 of the Federal
Rules of Criminal Procedure. Appellant believes that, during imposition of
sentence on February 17, 2011, the district court made an oral pronouncement
that Appellant would receive federal sentencing credit for the time he spent in
federal custody prior to his federal sentencing. Appellant now asks for the
district court’s written judgment to be modified to reflect the oral
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 13-30701
pronouncement. On appeal, the parties dispute which standard of review we
should apply to the district court’s denial of Appellant’s motion, and whether
these proceedings should more properly have been brought under 28 U.S.C. §
2241.
We need not resolve these issues, however, in the present appeal. The
Attorney General, through the Bureau of Prisons, is responsible for computing
sentencing credit under 18 U.S.C. § 3585, as the Supreme Court explained in
United States v. Wilson, 503 U.S. 329, 334-35 (1992). The district court has no
authority to make these computations during the oral pronouncement of
sentence. A prisoner may only “seek judicial review of these computations
after exhausting [his or her] administrative remedies,” which cannot occur
until “[a]fter a district court sentences a federal offender.” 1 Here, Appellant
has now exhausted his administrative remedies, but obviously could not have
done so when the district court imposed sentence on February 17, 2011. At
that time, the Attorney General’s computation of credit had not yet been made.
The district court therefore had no authority to make any binding
decision regarding sentencing credit during the oral pronouncement of
Appellant’s sentence. In the present appeal, moreover, Appellant has never
argued that the Attorney General’s computation of his sentencing credit was
wrong on any basis other than its deviation from the district court’s oral
pronouncement. The Attorney General was not bound, however, by a
1Wilson, 503 U.S. at 334-35; see also United States v. Setser, 607 F.3d 128, 132-33 (5th
Cir. 2010) (“[T]he prisoner must first seek administrative review of the computations of his
credit, and, once he has exhausted his administrative remedies, the prisoner may only then
pursue judicial review of these computations.”) (internal alterations and quotation marks
omitted); Hull v. United States, 199 F.3d 438, at *1 (5th Cir. 1999) (per curiam); Crumedy v.
United States, 180 F.3d 261, at *1 (5th Cir. 1999) (per curiam); United States v. Dowling, 962
F.2d 390, 393 (5th Cir. 1992) (explaining that Ҥ 3585(b) does not authorize a district court to
compute credit for time spent in official detention at sentencing” because “credit awards are
to be made by the Attorney General, through the Bureau of Prisons, after sentencing”).
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No. 13-30701
pronouncement that the district court had no authority to make. The denial of
Appellant’s motion, therefore, is AFFIRMED.
AFFIRMED.
3