* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-20116 c/w

No. 00-20118

No. 00-20485

No. 00-20486

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL EASTON, also known as Michael Joseph Bitgood,

Defendant-Appellant.

--------------------

Appeals from the United States District Court

for the Southern District of Texas

USDC No. H-98-CR-99-ALL

USDC No. H-98-CR-171-1

--------------------

March 1, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Michael Easton, Texas prisoner #00386843, appeals from the

denial of his motion seeking mandamus relief and requesting to

withdraw his federal guilty pleas and from the denial of his

motion for modification of his sentences. Easton sought to have

his federal sentences run concurrently with a state sentence that

was imposed after his federal sentences were imposed, and he
Nos. 00-20116, 00-20118, 00-20485, 00-20486

-2-

sought to withdraw his guilty plea on the ground that the

Government breached its plea agreement with him.

Easton does not argue that district court erred by denying

his motion for modification of his federal sentences despite

having taken an appeal from the denial of that motion. Easton

has abandoned any such argument for appeal. In re Municipal Bond

Reporting Antitrust Litigation, 672 F.2d 436, 439 n.6 (5th Cir.

1982). The only issues remaining for appeal are those arising

from the denial of Easton’s motion seeking mandamus relief and

the withdrawal of his guilty pleas.

Easton contends that the district court erred by denying his

request for mandamus relief ordering the United States Marshal to

take him into federal custody. He argues that the district court

ordered the Marshal to take him into custody at sentencing and

that the State waived primary jurisdiction over him, creating a

right for mandamus to issue. According to Easton, the district

court’s pronouncement at sentencing overrode the writ of habeas

corpus ad prosequendum pursuant to which he appeared for

sentencing and entitled him to have his sentences equitably

modified to run concurrently with his state sentence. Easton

finally argues regarding his mandamus request that the district

court erred by failing to hold an evidentiary hearing.

The Attorney General has discretion to designate a state

facility nunc pro tunc as the place in which a federal prisoner

serves his sentence. United States v. Garcia-Gutierrez, 835 F.2d

585, 587 (5th Cir. 1988); 18 U.S.C. § 3621(b). The Bureau of

Prisons (BOP) may exercise the Attorney General’s discretion in a
Nos. 00-20116, 00-20118, 00-20485, 00-20486

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manner so as to allow a prisoner to serve his state and federal

terms of imprisonment concurrently with one another. Romandine

v. United States, 206 F.3d 731, 738 (7th Cir. 2000); McCarthy v.

Doe, 146 F.3d 118, 123 (2d Cir. 1998); Barden v. Keohane, 921

F.2d 476, 483 (3d Cir. 1991).

Easton may seek relief from the BOP by asking for

designation of his current place of incarceration as the

institution for service of his federal sentence. See BOP Program

Statement 5160.04 ¶ 9(d). Should the BOP determine the issue

unfavorably to Easton, then Easton may pursue habeas corpus

relief pursuant to 28 U.S.C. § 2241. See Garcia-Gutierrez, 835

F.3d at 586. Because Easton has a remedy available to him under

§ 2241, the district court did not err by denying his request for

mandamus relief. In re Willy, 831 F.2d 545, 549 (5th Cir. 1987),

aff’d, 503 U.S. 131 (1992).

We have reviewed Easton’s arguments regarding the district

court’s pronouncements at sentencing and the effect of the state

court’s judgment on Easton’s federal sentences. We reject those

arguments. The district court did not err by denying the

mandamus request based on those arguments.

Easton contends that the district court erred by denying his

request to withdraw his guilty pleas and for denying the request

without holding an evidentiary hearing. Whether Easton filed a

presentence, pro se motion to withdraw his plea is irrelevant

now. Easton did not take a direct appeal from his convictions;

any presentence motion would not be reviewable now. See FED. R.
Nos. 00-20116, 00-20118, 00-20485, 00-20486

-4-

APP. P. 4(b)(1)(A)(defendant has ten days to file notice of

appeal).

Regarding the motion that was denied by the district court,

after sentence is imposed, a defendant may have his plea set

aside “only on direct appeal or by motion under 28 U.S.C.

§ 2255.” FED. R. CRIM. P. 32(e). Easton did not take a direct

appeal, and he did not seek relief through a § 2255 motion. 

Unless the request sounded in § 2255, the district court lacked

jurisdiction to consider it. See Rule 32(e).

It is clear from the record that Easton was not entitled to

mandamus relief and that the district court lacked jurisdiction

to consider his plea-withdrawal motion. No evidentiary hearing

was necessary in Easton’s case. See Alberti v. Klevenhagen, 46

F.3d 1347, 1358 (5th Cir. 1995).

AFFIRMED.