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United States Court of Appeals
Fifth Circuit
F I L E D
August 19, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT
Clerk

No. 03-40044
Summary Calendar

RAMSEY LEAL,
Petitioner-Appellant,
versus
JOHN M. TOMBONE, Warden,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Texas

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:
Ramsey Leal, federal prisoner # 76738-079, appeals the
district court's denial of his pro se 28 U.S.C. § 2241 petition.
Leal has argued that federal authorities have violated his due
process rights by failing to credit his federal sentence with
approximately nine months during which he was incarcerated in state
prison between November 1998 and August 1999. He has asserted that
this violated the state sentencing court's order that his five-year
state sentence run concurrently with his five-year federal sentence

and that he serve the sentences at a federal correctional facility.
Leal was not received at his designated federal prison for service
of his federal prison term until August 5, 1999.
The Attorney General, through the Bureau of Prisons (BOP),
determines what credit, if any, will be awarded to prisoners for
time spent in custody prior to the commencement of their federal
sentences.1 A federal sentence begins to run on the date that a
"defendant is received into custody awaiting transportation to, or
arrives voluntarily to commence service of sentence at, the
official detention facility at which sentence is to be served."2
A defendant is to be given credit toward his term of federal
imprisonment for any time he spent in official detention prior to
the commencement of his sentence "that has not been credited
against another sentence."3
Leal has not demonstrated that the U.S. Marshals Service was
legally obligated to deliver him to federal prison for the service
of concurrent sentences ordered by the state court. Although we
have not specifically addressed contentions like Leal's in a
published decision, other federal courts have rejected similar
arguments. In Del Guzzi v. United States, a federal defendant
pleaded guilty in August 1985 to counterfeiting charges and was
1 See United States v. Wilson, 503 U.S. 329, 331-32, 334
(1992); 18 U.S.C. § 3585(b).
2 18 U.S.C. § 3585(a).
3 § 3585(b).
2

sentenced to five years in federal prison.4 The federal court
ordered Del Guzzi to self-surrender the following month but, one
week before he was due to do so, he was arrested and charged with
a state drug violation.5 Del Guzzi pleaded guilty and was
sentenced to a seven-year state prison term, to run concurrently
with the five-year federal term.6 The state court recommended that
Del Guzzi be transported to federal prison to serve his concurrent
terms.7 Federal marshals declined to transport him to federal
prison, however, "apparently on the ground that they would take
custody of Del Guzzi only upon completion of his state sentence."8
Del Guzzi did not complete his state prison term until April 1989,
more than three years later, whereupon he was immediately accepted
into federal custody.9
In his § 2241 petition, Del Guzzi argued that his federal
sentence should be credited for the time he served in state
confinement, both because he was "awaiting transportation" to the
place where his federal sentence was to be served within the
meaning of the former § 3568 and because the federal courts had the
4 980 F.2d 1269, 1270 (9th Cir. 1992).
5 Id.
6 Id.
7 Id.
8 Id.
9 Id.
3

authority to credit him for the state prison time.10 The Ninth
Circuit rejected these contentions. First, it reasoned that "[t]he
state sentencing judge had no authority to commit Del Guzzi to the
state prison to await transportation to the federal prison where he
was to serve his sentence."11 Although the state judge indicated
that Del Guzzi should serve his state sentence concurrently in
federal prison, "his authority was limited to sending Del Guzzi to
state prison to serve his state sentence."12 Moreover, federal
courts have "no authority to violate the statutory mandate that
federal authorities need only accept prisoners upon completion of
their state sentence and need not credit prisoners with time spent
in state custody."13
10 Id. at 1270-71.
11 Id. at 1270.
12 Id.
13 Id. at 1271. In the recent Taylor v. Sawyer, the Ninth
Circuit rejected a claim similar to Del Guzzi's and quoted language
from the concurrence in Del Guzzi, which stated:
Federal prison officials are under no obligation to, and
may well refuse to, follow the recommendation of state
sentencing judges that a prisoner be transported to a
federal facility. Moreover, concurrent sentences imposed
by state judges are nothing more than recommendations to
federal officials. Those officials remain free to turn
those concurrent sentences into consecutive sentences by
refusing to accept the state prisoner until the
completion of the state sentence and refusing to credit
the time the prisoner spent in state custody.
284 F.3d 1143 (9th Cir. 2002), cert. denied, 123 S. Ct. 889 (2003)
(quoting Del Guzzi, 980 F.3d at 1272-73 (Norris, J., concurring)).
4

In Bloomgren v. Belaski the Tenth Circuit similarly rejected
a § 2241 petitioner's claim that he was entitled to federal
sentencing credit for time spent in state prison.14 Bloomgren had
been convicted on federal charges and was out on a federal appeal
bond when he was arrested and charged by state authorities.15 He
was convicted in state court, and the state sentencing judge
ordered that Bloomgren's state sentences run concurrently with time
to be served on his federal convictions.16 However, federal
authorities refused to take Bloomgren into custody until he
finished serving his state sentence.17 The Tenth Circuit held that,
despite the state court's intentions, Bloomgren was not entitled to
federal sentencing credit for the time he spent in state prison.18
It reasoned, "[t]he determination by federal authorities that
Bloomgren's federal sentence would run consecutively to his state
sentence is a federal matter which cannot be overridden by a state
court provision for concurrent sentencing on a subsequently-
obtained state conviction."19
14 948 F.2d 688, 690-91 (10th Cir. 1991).
15 Id. at 690.
16 Id.
17 Id. at 691.
18 Id.
19 Id. Other courts have reached similar results in similar
circumstances. See Jake v. Herschberger, 173 F.3d 1059, 1066 (7th
Cir. 1999) ("The state court's designation of [the defendant's]
5

Although Leal's state conviction was not subsequently
obtained, the state court order for concurrent sentencing post-
dated the federal conviction and sentence in this case. He is
contending, in contravention of the decisional authority of several
other circuits, that the U.S. Marshals Service was required to
comply with the state trial court's order that Leal be taken to a
federal prison to serve out his concurrent state sentence. He has
cited no binding legal authority mandating such a result. Because
the nine months he spent in state custody between November 1998 and
August 1999 were "credited against another sentence,"20 the BOP was
not required to credit that time toward his federal sentence.
Accordingly, the judgment of the district court is AFFIRMED.
state sentence as concurrent with his prior federal sentence
created no obligation on the Attorney General to provide him with
credit for time served in the state prison."); Pinaud v. James, 851
F.2d 27, 30 (2d Cir. 1988) (reasoning that the defendant cannot,
through agreement with state authorities, compel the federal
government to grant a concurrent sentence).
Leal relies on
Buggs v. Crabtree, 32 F. Supp. 2d 1215, 1220-21 (D. Or. 1998),
which held that the BOP was obliged to credit a prisoner for time
spent in state prison when the state courts had ordered concurrent
sentences. The court in Buggs acknowledged the holding in Del
Guzzi but failed to distinguish it. See id. at 1221. The Buggs
court also relied on Shabazz v. Carroll, 814 F.2d 1321, 1323-24
(9th Cir. 1987), in which the Ninth Circuit held that federal
authorities were required to grant federal sentencing credit for
state incarceration on a concurrent sentence ordered by a state
court. The portion of Shabazz relating to sentencing credit was
vacated on panel rehearing, however, because the court determined
it lacked jurisdiction to grant that relief. Shabazz v. Carroll,
833 F.2d 149, 149 (9th Cir. 1987).
20 See § 3585(b).
6