* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 1 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

VINCENT A. DEMARTINO,

Petitioner-Appellant,

v. R.G. THOMPSON, Warden; KATHLEEN HAWK, Director, Bureau of Prisons,

Respondents-Appellees. No. 96-6322 (D.C. No. CIV-96-515-R) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Vincent A. DeMartino, a federal inmate, appeals the denial of his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2 241. We exercise jurisdiction under 28 U.S.C. § 1291; review the district court’s legal conclusions de novo, see Harvey v. Shillinger, 76 F.3d 1528, 1532 (10th Cir.), cert. denied 117 S. Ct. 253 (1996); and affirm.
I. BACKGROUND Mr. DeMartino is a prisoner in the federal correcti onal institution in El Reno, Oklahoma, where he is serving a sentence impo sed by the United States District Court for the Eastern District of New York . In December 1991, when he was on parole from a federal offense, Mr. DeMartino was arrested in New York City for possession of a handgun and taken into fed eral custody under a parole violation warrant. The arrest led to the decision of the United States Parole Commission, on March 2, 1992, to revoke Mr. DeMarti no’s parole and impose the remainder of his sentence (nine years, ten months, and twenty days) as a parole violator term. Mr. DeMartino administratively appe aled the decision. Also as a result of the arrest, Mr. DeMartino was f ound guilty of being a felon in possession of a firearm, in violation of 1 8 U.S.C. § 922(g)(1). At a sentencing hearing held on April 23, 1993, the court sentenced him for “a period of 48 months, the sentence to run consecutive with the [nine-year violator] sentence that the defendant is presently serving.” Appellant’s App. at 15. The1 The district court referred the petition to a magis trate judge and, on

June 27, 1996, the magistrate judge concluded that the Bureau of Prisons had properly implemented the sentence. Mr. DeMartino f iled written objections to the magistrate’s report and recommendation. On Septemb er 5, 1996, the district court denied the objections and adopted the report in its entirety. -3- judgment order, entered the same day, stated that t he sentence was “sixty-three months imprisonment, forty-eight of which is to runconsecutively to the sentence he is concurrently serving.” Id . at 19. The United States Bureau of Prisons implemented the sentence as written: fifteen month s to be served concurrently with the violator term and forty-eight months to be served consecutively. In the summer of 1995, the Parole Commission revers ed its order on the parole violator charge and issued a nunc pro tunc o rder of re-parole, effective July 17, 1993. The nunc pro tunc order ended Mr. D eMartino’s parole violator term three months after his sentencing on the § 922 (g)(1) charge. Because there were twelve months remaining of the fifteen-month c oncurrent term, the Bureau of Prisons determined that Mr. DeMartino must serve these months consecutively to the violator term. Mr. DeMartino, however, clai med that the concurrent portion of the § 922(g)(1) sentence ended at the sa me time as the parole violator
sentence. After exhausting his administrative remedies, Mr. D eMartino filed this habeas action. The district court denied the petit ion 1 and Mr. DeMartino now appeals, arguing that he is entitled to habeas reli ef for two reasons: (1) an alleged-4-

conflict between the oral and written sentences and (2) the theory that his concurrent terms began and ended at the same time.
II. DISCUSSION Mr. DeMartino’s primary argument, that the oral sentence controls over the written judgment, has no place in this § 2241 habea s action. A petition under § 2241, filed in the district where the petitioner is confined, is used to attack the execution of a sentence. See Bradshaw v. Story , 86 F.3d 164, 166 (10th Cir. 1996). In contrast, an attack on the validity of asentence requires a petition under § 2255. See McIntosh v. United States Parole Comm’n , No. 96-1221, 1997 WL 321272, at *2 (10th Cir. June 13, 1997). Such apetition must be filed in the district that imposed the sentence. See Bradshaw , 86 F.3d at 166. As the district court properly concluded, Mr. DeMartino’s assertion raises the issue of what sentence was actually imposed. B ecause it presents an undiluted challenge to the validity of the sentence itself, t he claim must be brought to the sentencing court, under § 2255. We agree that the district court lacked jurisdiction to consider this aspect of Mr. DeMarti no’s argument. We also agree with the district court’s dispositionof the contention that the concurrent portion of the § 922(g)(1) sentence mustbe fully concurrent with the parole violator term. “[A] federal sentence made c oncurrent with a sentence already being served does not operate in a ‘fully c oncurrent’ manner. Rather, the2 Section 3585(a), a provision of the Sentencing Refo rm Act of 1984, became

effective in 1987. Its predecessor, § 3568, also p rovided that a federal sentence commences when the defendant is received into feder al custody. See United States v. Fuentes , 107 F.3d 1515, 1520 (11th Cir. 1997). Case law d etermining commencement date under § 3568 is equally applicabl e to § 3585(a). -5- second sentence runs together with the remainderof the one then being served.” Shelvy v. Whitfield , 718 F.2d 441, 444 (D.C. Cir. 1983) (italics in or iginal). Essentially, Mr. DeMartino is arguing that both the parole violator and § 922(g)(1) terms began in December 1991, when the parole violator warrant was executed, and ended in July 1993, when the nunc pro tunc order of re-parole was issued. This theory merges the two separate steps involved in the Bureau of Prisons’ computation of a federal sentence: first, the establishment of the commencement date, governed by 18 U.S.C. § 3585(a); and second, a determination of credit for time already spent in c ustody, governed by 18 U.S.C. § 3585(b). Under § 3585(a), a federal sentence commences on th e date the defendant is received in custody to begin service of his sentenc e. 2 Logically, it “cannot commence prior to the date it is pronounced, even i f made concurrent with a sentence already being served.” United States v. F lores , 616 F.2d 840, 841 (5th Cir. 1980). Thus, Mr. DeMartino did not begin his § 922(g)(1) term of imprisonment until he was sentenced on that offense

.-6-

The second step in the computation involves a deter mination of whether a defendant is entitled to any credit for time spent in custody prior to commencement of the sentence. Under § 3585(b), a d efendant may receive credit for such time if it “has not been credited against another sentence.” Through this provision, Congress made it “clear that a defendantcould not receive a double credit for his detention time.” United States v. W ilson , 503 U.S. 329, 337 (1992). Accordingly, Mr. DeMartino’s § 922(g)(1) sentence i s not shortened through operation of § 3585(b). The time he spent in offic ial detention prior to sentencing was credited against the parole violator term and m ay not also be credited against the § 922(g)(1) sentence.
III. CONCLUSION Because Mr. DeMartino did not serve the full fiftee n months of the concurrent term during the period between sentencin g and re-parole, he must serve the remainder of that time consecutively, fol lowed by the forty-eight months of the consecutive term. For substantially the sam e reasons relied upon by the district court, we AFFIRM the judgment of the Unite d States District Court for the Western District of Oklahoma. We GRANT Mr. DeM artino’s motion to file a supplemental appendix. Entered for the Court Wade Brorby Circuit Judge