NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 23, 2015*
Decided October 23, 2015
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 15‐1494 Appeal from the
United States District Court
UNITED STATES OF AMERICA, for the Northern District of Indiana,
Plaintiff‐Appellee, South Bend Division.
v. No. 3:08‐CR‐00077(01)RM
ERNIE M. BRAGG, Robert L. Miller, Jr.,
Defendant‐Appellant. Judge.
O R D E R
Ernie Bragg pleaded guilty to distributing crack cocaine, 21 U.S.C. § 841(a)(1), and
was sentenced to 120 months’ imprisonment. At sentencing the district court adopted
the presentence investigation report, including the probation officer’s recommendation
that Bragg receive an upward adjustment under U.S.S.G. § 2D1.1(b)(1), which provides
for a two‐level increase “[i]f a dangerous weapon (including a firearm) was possessed.”
The probation officer recounted that several persons who had bought crack from Bragg
told federal agents that they had seen him with a gun. Bragg did not object to the
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP.
P. 34(a)(2)(C).
No. 15‐1494 Page 2
presentence report, nor did he file a direct appeal. Five years later in December 2014,
Bragg filed what he characterized as a “petition to amend” the presentence report
“under habeas challenge to effectuate and remove erroneous and false documentation.”
Bragg asserts that references to him having a gun are inaccurate, and he asks in his
petition that the district court order those references removed from the report. Bragg
explains that the mention of guns in the report has adversely affected his security
classification and will bar his eligibility for early release after he completes a drug‐
treatment program. See 18 U.S.C. § 3621(e)(2)(B); 28 C.F.R. § 550.55(b)(5)(ii). The district
court denied Bragg’s motion with the explanation that objections to a presentence report
cannot be made after sentencing. That generalization is not entirely accurate, although it
is in this instance, and we agree with the district court that granting relief on Bragg’s
petition would not have been appropriate.
The Bureau of Prisons uses the information in presentence reports for several
purposes, including calculating credit for time served and designating inmate
classifications. See FED. R. CRIM. P. 32 advisory committee note (1983); U.S. Dept. of
Justice, Federal Bureau of Prisons, Program Statement P5100.08—Inmate Security
Designation and Custody Classification, Ch. 3 (Sept. 12, 2006), www.bop.gov/policy/
progstat/5100_008.pdf. This is why Rule 32(i)(3)(B) of the Federal Rules of Criminal
Procedure requires that sentencing courts either resolve disputed matters in a
presentence report or make explicit on the record that the dispute will not affect the
choice of sentence. See United States v. Brown, 716 F.3d 988, 993–94 (7th Cir. 2013). This
rule promotes the accuracy of presentence reports, yet mistakes that could affect the
execution of a defendant’s sentence might still remain. And as we have recognized, a
federal inmate who believes that inaccuracies in his presentence report are adversely
affecting the execution of his sentence may file a petition under 28 U.S.C. § 2241 seeking
correction of the presentence report. See Johnson v. United States, 805 F.2d 1284, 1291 (7th
Cir. 1986); United States v. Mittelsteadt, 790 F.2d 39, 40–41 (7th Cir. 1986); see also Lopez v.
Davis, 531 U.S. 230, 236 (2001) (challenging Bureau of Prison’s determination of
ineligibility for early release based on information in presentence report by filing
petition for writ of habeas corpus under § 2241). That is how we understand Bragg’s
petition, which, in fact, incorporates the word “habeas” in the lengthy title.1
1 The government incorrectly asserts that Bragg’s waiver of his direct appeal from
his conviction and sentence forecloses his motion. To the contrary, Bragg’s appeal
waiver relates to the imposition of his sentence, not the execution. See Gray‐Bey v.
No. 15‐1494 Page 3
Still, the district court could not have granted relief, or even evaluated the merits
of Bragg’s petition, because he filed in the wrong court. A § 2241 petition must be filed in
the district of confinement, Mittelsteadt, 790 F.2d at 41, and Bragg is incarcerated in the
Southern District of Illinois, not the Northern District of Indiana where he was
prosecuted. Thus, the district court should have dismissed the petition rather than deny
it. See al‐Marri v. Rumsfeld, 360 F.3d 707, 710 (7th Cir. 2004); Middlesteadt, 790 F.2d at 41.
Moreover, Bragg should have named his custodian, not the United States, as the
respondent. See 28 U.S.C. § 2243. Accordingly, we affirm the disposition, as modified to
reflect a dismissal without prejudice.
We also note that Bragg’s petition appears to be premature: If he wishes to
challenge a Bureau of Prison’s determination regarding eligibility for early release, he
must first exhaust his administrative remedies with the Bureau. Mittelsteadt, 790 F.2d
at 41; United States v. Tindall, 455 F.3d 885, 888 (8th Cir. 2006). The Bureau of Prisons
provides administrative remedies pursuant to 28 C.F.R. §§ 542.10–542.19. If Bragg is
unable to obtain a satisfactory result from the Bureau of Prisons, he will then be able to
bring a § 2241 action naming the warden having custody over him, see 28 U.S.C. § 2243,
in the district where he is incarcerated, see Mittelsteadt, 790 F.2d at 41.
AFFIRMED AS MODIFIED.
United States, 209 F.3d 986, 990 (7th Cir. 2000); Valona v. United States, 138 F.3d 693, 694
(7th Cir. 1998).