IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50551
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID GREGORY SURASKY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-90-CR-76-01-JN
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January 29, 2003
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
David Gregory Surasky, federal prisoner #52646-080,
appeals from the denial of his motion for time spent in state
custody to be credited to his federal sentence and the denial of
his petition for audita querela relief from the fine imposed on him
for his controlled substance and firearm conviction. He argues
that U.S.S.G. § 5G1.3, which governs the imposition of concurrent
and consecutive sentences, requires an order granting him credit
*
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that this opinion should not be published and is not precedent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. 02-50551
-2-
for time served in state custody between his arrest and his state-
court conviction. He argues that the district court erred by
denying his petition for audita querela relief because he cannot
pay his fine and will not be able to do so upon release because of
his deteriorating physical condition.
We construe the motion for time to be credited against
Surasky’s sentence as a petition for habeas corpus relief under 28
U.S.C. § 2241. See United States v. Garcia-Gutierrez, 835 F.2d
585, 586 (5th Cir. 1988). The district court lacked jurisdiction
to address the petition. See United States v. Gabor, 905 F.2d 76,
78 (5th Cir. 1990). However, we address Surasky’s substantive
contentions in the interest of judicial efficiency. See Garcia-
Gutierrez, 835 F.2d at 586. Surasky was given credit against his
state sentence for the time he seeks to have credited against his
federal sentence. The relevant statute does not allow the result
that Surasky seeks. 18 U.S.C.
§ 3585(b). The district court correctly denied Surasky
credit against his federal sentence.
Surasky’s allegedly limited future earnings potential due
to deteriorating health does not present a legal defense against
the fine. See United States v. Banda. 1 F.3d 354, 356 (5th Cir.
1993). The district court did not err by denying Sursaky audita
querela relief.
AFFIRMED.