UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4254
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNATHAN J. STROUD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:08-cr-00285-WO-1)
Submitted: September 25, 2014 Decided: October 10, 2014
Before NIEMEYER and MOTZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Gregory S. Smith, LAW OFFICES OF GREGORY S. SMITH, Washington,
D.C., for Appellant. Ripley Rand, United States Attorney, Harry
L. Hobgood, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnathan J. Stroud appeals the district court’s
judgment and commitment order revoking his supervised release,
ordering that he serve a sentence of twenty-four months’
imprisonment with no further period of supervision, directing
that the sentence run consecutively to any anticipated state
sentence, and that he be given credit for part of the period of
time he was in federal detention. We affirm.
Because Stroud did not object to the district court’s
decision that the revocation sentence run consecutively to any
anticipated state sentence, review is for plain error. United
States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). To establish
plain error, Stroud must show “(1) that the district court
erred, (2) that the error is clear or obvious, and (3) that the
error affected his substantial rights, meaning that it affected
the outcome of the district court proceedings.” Id. at 640-41
(internal quotation marks omitted). Even if Stroud meets this
burden, we retain discretion to choose whether to recognize the
error and will deny relief unless the court’s error “seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” Id. at 641 (internal quotation marks and
alteration omitted). We find no error, much less plain error,
in the district court’s sentencing decision at issue. Setser v.
United States, 132 S. Ct. 1463, 1468 (2012) (sentencing courts
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have discretion to order a sentence to run consecutively to an
anticipated state sentence).
Stroud also contends that the district court erred by
ordering that he receive sentencing credit for a period of time
he was in federal detention and that the court compounded the
error by choosing the wrong date to commence credit. The
computation of credit must occur after the defendant is
sentenced. United States v. Wilson, 503 U.S. 329, 333 (1992).
It is the Attorney General in the first instance who is
responsible for computing sentencing credit for time in
detention prior to sentencing. Id. at 334-35. If the Attorney
General, through the Bureau of Prisons (“BOP”), does not give
Stroud the sentencing credit he believes he deserves, he can
seek an administrative remedy. See 28 C.F.R. § 542.10 (2014).
If he is not satisfied with the result, he can file a petition
under 28 U.S.C. § 2241 (2012). See Wilson, 503 U.S. at 336;
United States v. Miller, 871 F.2d 488, 489-90 (4th Cir. 1989).
The court’s decision to order a sentence and to give credit to
Stroud for a period of time in federal detention prior to
sentencing is without effect as the BOP will be determining how
much credit Stroud should receive for the period he was detained
prior to sentencing. “[T]he district court cannot perform the
necessary calculation at the time of sentencing and [] the
Attorney General, in implementing the defendant’s sentence,
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cannot avoid computing the credit.” Wilson, 503 U.S. at 336.
Thus, there is no reason to vacate the court’s judgment and
commitment order.
Finally, Stroud claims that counsel was ineffective
because he received an unreasonable twenty-four month sentence.
This claim is not ripe for review. Ineffective assistance of
counsel claims are not cognizable on direct appeal unless the
record conclusively establishes “that defense counsel did not
provide effective representation.” United States v. Benton, 523
F.3d 424, 435 (4th Cir. 2008) (internal quotation marks
omitted); see also United States v. Baldovinos, 434 F.3d 233,
239 (4th Cir. 2006). To allow for adequate development of the
record, ineffective assistance claims are, generally speaking,
more appropriately pursued in a motion filed pursuant to 28
U.S.C. § 2255 (2012). United States v. Baptiste, 596 F.3d 214,
216 n.1 (4th Cir. 2010). Because the record does not
conclusively show that counsel was ineffective, we will not
review the issue.
Accordingly, we affirm the judgment and commitment
order. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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