USCA1 Opinion

[NOT FOR PUBLICATION]

United States Court of Appeals

For the First Circuit
____________________

No. 96-1938

UNITED STATES,

Appellee,

v.

GARY JOHNSON,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Boudin and Lynch, Circuit Judges.

______________

____________________

Gary Johnson on brief pro se.

____________
Sheldon Whitehouse, United States Attorney, and Edwin J.
__________________
________
Gale, Assistant United States Attorney, on brief, for appellee.
____

____________________

October 25, 1996

____________________

Per Curiam.
__________

Gary Johnson, who is currently serving a 37

month sentence

in federal prison, appeals

court's denial of his pro se

First,

he argues

that

motion for

under

18

from the district

immediate release.

U.S.C.

3584(a),

which

provides in relevant part that terms of imprisonment "may not

run consecutively for an attempt and for another offense that

was the sole

objective of

immediate release.

assumption

with

an

robbery

was the

the attempt," he

This argument

that the

federal crime

obliterated serial

constitute "an

sole objective

However, these

erroneous

of possessing

a firearm

number and

of the

to

is based on the

the state

attempt" and "another

are distinct

may run consecutively.

is entitled

attempt" under

crimes for which

crime of

offense that

the statute.

the sentences

Second, Johnson

his

federal

custody,

that

sentence

argues that under 18

sentence began

because that

prisoner must

statute

be in

to begin running.

account all of

is received

detention facility

Because

the federal

prison as "the

while

does not

federal
_______

3585(a),

he was

in state

specifically state

custody to

cause the

This argument does not take into

the pertinent portions of the

provides that "[a] sentence

defendant

to run

U.S.C.

statute, which

. . . commences on

in custody

at which the

government

. .

. [at]

the official

sentence is to

never designated

official detention facility"

-2-

the date the

be served."

the state

where Johnson's

federal sentence

would be

served, his federal

sentence did

not begin to run until he reached the federal prison that was

designated as his "official detention facility."

Third, Johnson argues that under 18 U.S.C.

is

entitled to

have

the time

he

spent in

credited toward his federal sentence.

relevant part: "A

service

3585 (b)

state

he

custody

The statue provides in

defendant shall be given credit toward the

of a term of imprisonment for

any time he has spent

in

official

commences

. . . that

sentence."

against

detention

prior

to

the

has not been

date

the

sentence

credited against another

Crediting the time Johnson spent in state prison

his federal

sentence would

be improper

under this

statute because Johnson's detention at the state facility was

credited against his state sentence.

Finally,

power

to

Johnson argues

order his

concurrently.

power

However,

where, as

first.

Any

federal

and

a state

here, the

error that

that the

state court

state

sentences

court does

state sentence

occurred in

had the

to

not have

is to

this case

run

this

be served

occurred in

state court, while the federal court acted entirely properly;

any

remedy

for

this

harm would

involve

Johnson's

state

sentence

rather

already finished

summarily

affirm

than his

federal

serving his

the

sentence.

state sentence.

district

court's

appellant's motion for immediate release.

-3-

Affirmed. Loc. R. 27.1.

________

Johnson

has

We therefore

order

and

deny