UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-7459

DARIN EUGENE JETER,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Joseph F. Anderson, Jr., District Judge.

(CR-95-319, CA-97-937-3-17)

Submitted: July 28, 1998

Decided: August 11, 1998

Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

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COUNSEL

Darin Eugene Jeter, Appellant Pro Se. Beth Drake, Assistant United

States Attorney, Columbia, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Darin Eugene Jeter, who was in state custody awaiting disposition

of related state charges, appeared in federal court on February 1,

1996, pursuant to a writ of habeas corpus ad prosequendum, and pled

guilty to being a felon in possession of a firearm. In return, the United

States dismissed a second firearms charge and moved for a downward

departure based on substantial assistance. On April 30, 1996, the district court sentenced Jeter to sixty-four months imprisonment. On

May 17, Jeter was returned to state custody.

On October 28, Jeter pled guilty to state charges of burglary and

grand larceny. The state court imposed a sentence of six years on the

burglary charge, gave Jeter credit for time served since October 1995,

and ordered that the burglary sentence run concurrently with the federal sentence. The court also imposed a five-year sentence on the

grand larceny charge to run consecutive to the federal sentence. However, because Jeter remained in state custody, his federal sentence had

not yet begun to run. See 18 U.S.C. § 3585(a) (1994) (sentence runs

from the date on which the defendant is received at the prison for service of the sentence).

Jeter then filed a motion under 28 U.S.C.A. § 2255 (West 1995 &

Supp. 1998), claiming that he was denied effective assistance of counsel because his attorney had not advised him that his federal sentence

could not run concurrently with his state sentence and that his plea

was involuntary because he did not understand the same. His court

appointed attorney filed a Fed. R. Crim. P. 36 motion seeking correction of the terms of Jeter's sentence and an order that Jeter's federal

sentence commence on the date he first appeared in federal court.*

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*As a threshold matter, because neither a § 2255 motion nor a Rule 36

motion applies to attacks on the execution of a sentence, the portion of

Jeter's claim seeking credit on his federal sentence will be construed as

a 28 U.S.C. § 2241 (1994) petition. See United States v. Miller, 871 F.2d

488, 490 (4th Cir. 1989).

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On June 13, 1997, the district court granted Jeter partial relief and

amended its judgment and conviction in the case to provide that the

state facility at which Jeter was serving his state sentence was designated as the place of service of the federal sentence. According to the

terms of the June 13 order, the federal and state sentences would run

concurrently from June 13, 1997, forward.

Jeter filed two motions for reconsideration seeking that the June 13

order be made retroactive so that his federal and state sentences

would be deemed to run concurrently from an earlier date. The district

court denied the motions. Jeter timely appealed. The United States did

not appeal. Because we are unable to determine whether the district

court had authority to decide Jeter's claim that the district court's

June 13 order should be applied retroactively, we vacate and remand

for further consideration.

The district court made no finding as to whether Jeter satisfied the

exhaustion requirement for 28 U.S.C. § 2241 (1994) claims. However, the Supreme Court has expressly held that a district court does

not have the jurisdiction to make the initial determination to award

sentence credit for time spent in official detention. Rather, the Attorney General, through the Bureau of Prisons, is to make that determination. Review of the Bureau of Prisons' determination is available

through the administrative process and ultimately, after the exhaustion of administrative remedies, in the district court. See United States

v. Wilson, 503 U.S. 329, 334-35 (1992).

The United States notes that Jeter filed a letter with the district

court asserting that he requested credit for time served in state custody from the Bureau of Prisons and that his request was denied.

However, the record contains neither this letter nor any documentation from the Bureau of Prisons. Further, it is unclear whether Jeter's

request was formal or informal and whether he attempted to appeal

the denial. See 28 C.F.R. §§ 542.10-542.16 (1997). In any event, the

district court made no finding on this issue.

While it is true that the United States did not raise this issue below,

exhaustion of administrative remedies in this context is not waivable.

Until the Attorney General makes a sentence credit determination

under 18 U.S.C. § 3585(b) (1994), the case is not ripe for review by

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the district court. See United States v. Jenkins , 38 F.3d 1143, 1144

(10th Cir. 1994) (vacating district court's award of sentence credit

even though the United States did not raise exhaustion as a defense

in district court); United States v. Westmoreland, 974 F.2d 736, 737-

38 (6th Cir. 1992) (reversing order of the district court denying sentence credit where the Bureau of Prisons had not issued a decision,

even though the United States expressly waived exhaustion requirements).

Accordingly, the district court's consideration of the case was premature. We, therefore, grant a certificate of appealability, vacate the

district court's order to the extent it denies Jeter credit towards his

federal sentence for time served before June 13, 1997, and remand the

case to the district court for consideration of whether Jeter exhausted

administrative remedies.

For the reasons discussed above, the district court also incorrectly

granted Jeter's motions in part, ordering that his sentences run concurrently from June 13, 1997, forward. However, the United States

neither raised the exhaustion requirements below nor appealed the

order of the district court. After consideration of the issue, we decline

to exercise our discretion to correct this error on the unappealed portion of the district court's order.

Finally, we affirm the remainder of the district court's orders which

denied Jeter's ineffective assistance and involuntary guilty plea

claims. An attorney is not ineffective for failing to explain an entirely

collateral consequence of a plea to a defendant. See United States v.

Yearwood, 863 F.2d 6, 7-8 (4th Cir. 1988). Because operation of

§ 3585 is collateral to Jeter's sentence, see Cobb v. United States, 583

F.2d 695, 696-97 (4th Cir. 1978) (discussing similar, repealed statute), counsel was not ineffective. In addition, because he was advised

of all direct consequences of his plea, Jeter's plea was not involuntary. Id.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED IN PART, VACATED

IN PART, AND REMANDED

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