UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6525
FELIPE RAMIREZ,
Petitioner - Appellant,
v.
ANDREW MANSUKHANI, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Bruce H. Hendricks, District Judge.
(1:14-cv-01765-BHH)
Submitted: September 29, 2015 Decided: October 16, 2015
Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Felipe Ramirez, Appellant Pro Se. Marshall Prince, II,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Felipe Ramirez, a federal prisoner, appeals the district
court’s order accepting the recommendation of the magistrate
judge and denying relief on his 28 U.S.C. § 2241 (2012)
petition. We have reviewed the record and find no reversible
error.
We review de novo a district court’s order denying relief
on a prisoner’s § 2241 petition alleging that the Federal Bureau
of Prisons (BOP) miscalculated his sentence. Yi v. Fed. Bureau
of Prisons, 412 F.3d 526, 530 (4th Cir. 2005). First, Ramirez
alleges that 18 U.S.C. § 3585(b) (2012) entitles him to credit
for time served between the imposition of his state sentence and
his federal sentence. Under that statute,
[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 . . . as a result of the offense for which
the sentence was imposed . . . that has not been
credited against another sentence.
18 U.S.C. § 3585(b) (emphasis added). Because the time Ramirez
served between the imposition of the two sentences was credited
toward the service of his state sentence — a sentence for an
offense involving the same underlying conduct as his federal
conviction — Ramirez was not entitled to credit under § 3585(b).
Second, Ramirez argues that the sentencing court imposed a
federal sentence concurrent to the entirety of his state
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sentence. In its oral pronouncement of sentence, the sentencing
court stated that Ramirez’s federal sentence was “to run
concurrent to the discharged undischarged term of imprisonment
[in Ramirez’s state case].” The court’s written judgment states
that Ramirez’s federal sentence was “to run concurrent with the
undischarged term of imprisonment [in Ramirez’s state case].”
“It is normally the rule that where a conflict exists
between an orally pronounced sentence and the written judgment,
the oral sentence will control.” United States v. Osborne, 345
F.3d 281, 283 n.1 (4th Cir. 2003). However, if the oral
pronouncement is ambiguous, then a reviewing court looks to the
written judgment to resolve the ambiguity. Id. Here, an
ambiguity exists in the sentencing court’s use of the phrase
“discharged undischarged term of imprisonment” in its oral
pronouncement. Accordingly, we resort to the written judgment
to resolve the ambiguity and conclude that the sentencing court
intended to run Ramirez’s federal sentence concurrent only to
the undischarged portion of his state sentence. Thus, the BOP
properly calculated Ramirez’s sentence and his release date. *
*For the first time on appeal, Ramirez argues that his
sentence violates U.S. Sentencing Guidelines Manual § 5G1.3
(2010). This argument, to the extent it is cognizable through
§ 2241, see United States v. Surratt, 797 F.3d 240, 247 (4th
Cir. 2015), is waived because Ramirez did not present it to the
district court. See In re Under Seal, 749 F.3d 276, 285 (4th
Cir. 2014) (“Our settled rule is simple: absent exceptional
(Continued)
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Therefore, although we grant leave to proceed in forma
pauperis, we affirm the district court’s judgment. 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
circumstances, we do not consider issues raised for the first
time on appeal.” (alterations and internal quotation marks
omitted)).
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