### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-51072 Summary Calendar

RODOLFO IBARRA MUNOZ, Petitioner-Appellant

v. C LAUDE MAYE, Warden, Bastrop Federal Correctional Institution, Bastrop, Texas, Respondent-Appellee

Appeal from the United States District Court for the Western District of Texas USDC No. 1:10-CV-960

Before KING, DAVIS, and CLEMENT, Circuit Judges. PER CURIAM: * Rodolfo Ibarra Munoz, federal prisoner # 00556-079, was sentenced in 2009 to 108 months in prison for interstate transportation in aid of racketeering, aiding and abetting, and using a communication fa c ility to facilitate the distribution of marijuana. He filed a 28 U.S.C. § 2241 petition, arguing that the time that he spent in a community corrections center (CCC), or halfway house, prior to sentencing, and the time that he spent in the CCC after sentencing but U n i te d S ta te s C o u rt o f Ap p ea l s

F i ft h C i rc u i t 

### F I L E D August 13, 20 12 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat thisop inion sho uld not * be publish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 TH C IR

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prior to the date that he reported to the designated Bureau of Prisons (BOP) facility, should be credited against his sentence pursuant to 18 U.S.C. § 3585(b). The district court denied the § 2241 petition, reasoning that Munoz’s claim was vitiated by Reno v. Koray , 515 U.S. 50, 57-65 (1995), in which the Supreme Court held that time spent while released on bail subject to restrictions, including confinement in a community treatment facility, does not constitute official detention for purposes of § 3585(b) and is not credited toward the senten c e imposed. On appeal, Munoz ag ain challenges the BOP’s sentence calculation, and he argues that the district court failed to recognize that his reques t f o r c redit comprised two different time periods: (1) the time spent in a halfway house prior to the oral pronouncement of sentence, and (2) the time spent in a halfway house after he was sentenced. He also m ai nt ains that the Department of Justice’s (DOJ) opinion, set forth in a memorandum dated December 16, 2002, that a CCC constitutes a penal or correctional facility, undermines the reasoning in Koray and mandates credit for pre-sentencing time served in a CCC. Munoz’s arguments are without merit. Prior to reporting to the BOP facility, Munoz was released on bail, subject to the restriction that he maintain residence i n a h alfway house or CCC; he was not “committed to the custody of the Attorney General” or otherwise “subject to BOP’s control.” Koray , 515 U.S. at 57-58 (internal quotation marks and citation omitted). Accordingly, Munoz

was not in “official detention” for purposes of § 3585(b), and the district court did not err when it held that the BOP correctly denied Munoz’s requested credit. See id. at 5 8

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. Additionally, any challenge by Munoz to the district court’s failure to make findings about the purportedly restrictive nature of the time he spent in the halfway house is foreclosed by Koray , in which the Court specifically rejected the “jail-type confinement” test as being “suffi c iently vague and amorphous.” Id. at 63-64. Finally, Munoz’s reliance on the DOJ memorandum of December 16, 2002, is misplaced. Even if a CCC m ay c o n s titu t e a place of
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imprisonment, Munoz cannot show that he was in the custody of the BOP. See id. at 58, 63. For the foregoi n g r e a s ons, the judgment of the district court is AFFIRMED. Munoz’s motion to supplement the record on appeal is DENIED.

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