United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 16, 2003
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 02-41143
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VICTOR GARZA,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No.: 6:92-CR-30-5
_________________________________________________________________
Before JOLLY and WIENER, Circuit Judges, and ROSENTHAL, District
Judge.*
E. GRADY JOLLY, Circuit Judge:**
Victor Garza, Texas state prisoner #691294, appeals the
district court’s ruling on his “Motion for Transfer to a Federal
Prison Facility.” Because the district court’s ruling is a non-
binding recommendation to the Bureau of Prisons, it is not an
appealable order and we lack jurisdiction. The appeal is therefore
DISMISSED.
*
District Judge of the Southern District of Texas, sitting by
designation.
**
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this opinion should not be published and is not precedent except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.
I
In 1994, Garza pleaded guilty in federal court to possession
with the intent to distribute marijuana. He was sentenced to 294
months’ imprisonment. Prior to Garza’s federal sentencing hearing,
he was arrested by Texas authorities for murder. After he was
sentenced in federal court, Garza was sentenced in state court to
20 years’ imprisonment for the state murder conviction. The state
court ordered Garza’s sentence to run concurrently with his federal
sentence. Garza appealed his federal conviction and sentence to
this court, arguing that the district court should have sua sponte
refused to accept his guilty plea. On March 23, 1995, this court
affirmed Garza’s judgment and conviction in an unpublished opinion.
United States v. Garza, 51 F.3d 1044 (5th Cir. 1995) (table).
On April 8, 2002, Garza filed a “Motion for Transfer to a
Federal Prison Facility.” Garza argued that he had never been
transferred from state custody to federal custody, and he requested
that the district court order the Texas Department of Criminal
Justice to deliver him to federal authorities to serve his federal
sentence. The Government responded that the parties had
contemplated that the state and federal sentences would be served
concurrently and, therefore, it recommended that the court enter a
judgment and sentence nunc pro tunc ordering Garza’s federal
sentence to begin on August 26, 1994, the date that he was
sentenced in federal court, and further ordering that it run
concurrently with his state sentence.
2
On July 16, 2002, the district court entered an order
partially granting Garza’s motion. The court ordered that a
judgment and sentence nunc pro tunc be entered designating the
Texas Department of Criminal Justice, Institutional Division, as
primary custodian for service of Garza’s federal sentence;
reflecting the date that service of Garza’s federal sentence began
as August 26, 1994; and directing that Garza’s federal sentence run
concurrently with his state sentence. The court ordered, further,
that Garza’s judgment and sentence reflect that, in the event that
he concluded the service of his state sentence with time remaining
to be served on his federal sentence, he would be delivered to the
custody of the United States Marshal for transportation to the
Bureau of Prisons to complete the service of his federal sentence.
Garza’s untimely notice of appeal from the district court’s ruling
was determined to have been due to excusable neglect.
II
Garza, pro se, does not contest the substance of the district
court’s ruling on his Motion for Transfer to a Federal Prison
Facility. Instead, he seeks to turn this appeal into a collateral
attack on his federal and state convictions. He argues that he was
“let [sic] to believe that he would serve his state sentence
concurrently with his federal sentence in federal custody,” and,
therefore, both the federal government and the State of Texas
breached the federal and state plea agreements. He thus contends
that his guilty pleas in state and federal court were involuntary
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and that he should be allowed to withdraw them. Obviously, Garza
cannot raise these issues for the first time in this appeal.
Even more fundamentally, however, this court lacks
jurisdiction to consider Garza’s appeal because our precedents make
clear that the district court’s ruling on his Motion for Transfer
to a Federal Prison Facility is a non-binding recommendation to the
Bureau of Prisons. See 18 U.S.C. § 3621(b) (Bureau of Prisons
determines place of confinement). Therefore, it is not an
appealable order. See United States v. Pineyro, 112 F.3d 43, 44-46
(2d Cir. 1997) (district court’s order recommending that Bureau of
Prisons not grant Pineyro credit for time served in state prison
was “only a non-binding recommendation” and appeal “must be
dismissed for lack of jurisdiction”); United States v. De La Pena-
Juarez, 214 F.3d 594, 599-600 (5th Cir. 2000) (district court’s
order requiring as condition of sentence that fifty percent of
defendant’s prison earnings be garnished to support his children
and that defendant be housed in a facility close to Houston were
non-binding recommendations to Bureau of Prisons “and, accordingly,
it is not an order from which [defendant] can appeal”).
III
For the foregoing reasons, the appeal is DISMISSED for lack of
jurisdiction.
APPEAL DISMISSED.
4