United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 7, 2006

Decided December 8, 2006

Before

 Hon. MICHAEL S. KANNE, Circuit Judge

 Hon. TERENCE T. EVANS, Circuit Judge

 Hon. DIANE S. SYKES, Circuit Judge 

No. 06-1920

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES I. MONTROY,

Defendant-Appellant.

Appeal from the United States District

Court for the Western District of

Wisconsin

No. 05-CR-177-S-01

John C. Shabaz, 

Judge.

O R D E R

James Montroy pleaded guilty to interstate transportation of stolen securities

in violation of 18 U.S.C. § 2314, and the district court sentenced him to 13 months

to run consecutive to his undischarged state terms of imprisonment. The court also

sentenced him to three years of supervised release and ordered him to pay $26,491

in restitution. Montroy filed a notice of appeal, but his appointed counsel now seeks

to withdraw under Anders v. California, 386 U.S. 738 (1967), because he is unable

to discern a nonfrivolous issue to pursue. Counsel’s supporting brief is facially

adequate, and Montroy has responded to our invitation under Circuit Rule 51(b) to

comment on counsel’s submission. Thus we limit our review to those potential

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 06-1920 Page 2

issues identified in counsel’s brief and Montroy’s Rule 51(b) response. See United

States v. Schuh, 289 F.3d 968, 974 (7th Cir. 2002). 

Montroy broke into his father-in-law’s insurance agency in Wisconsin and

stole several blank business checks that he forged and deposited into his bank

account in Michigan. He was convicted of burglary in Wisconsin and sentenced to

six years in prison. While serving time on the burglary offense (and on another

state conviction for possession with intent to deliver cocaine), he was charged in

federal court in Wisconsin with transporting the stolen checks, totaling $20,636,

from state to state. See 18 U.S.C. § 2314. Montroy was handed over to federal

authorities pursuant to a writ of habeas corpus ad prosequendum. He pleaded

guilty to the § 2314 charge, and further stipulated in his plea agreement that he

also defrauded at least 21 people of $500 apiece in an internet scam. The district

court calculated a guidelines imprisonment range of 30 to 37 months based on a

total offense level of 12 and a criminal history category of VI. The court then

considered the factors enumerated in 18 U.S.C. § 3553(a), and concluded that a

sentence at the top of the guidelines range was reasonable, particularly in light of

Montroy’s long and serious criminal history. However, the court reduced both ends

of the imprisonment range by 24 months, explaining that it was accounting for the

time Montroy had served on his state burglary conviction before he was taken into

federal custody. The court, citing U.S.S.G. § 5G1.3, reasoned that such a reduction

was required because the checks Montroy stole during the burglary were the same

checks he transported in interstate commerce. The court then imposed a term of 13

months to run consecutively to Montroy’s undischarged state terms of

imprisonment. After sentencing, Montroy was returned to Wisconsin custody to

serve the remainder of his state sentences.

Counsel initially notes that Montroy does not wish to withdraw his guilty

plea, so counsel appropriately avoids any discussion about the voluntariness of the

plea or the adequacy of the colloquy. See United States v. Knox, 287 F.3d 667, 671-

72 (7th Cir. 2002). Counsel considers only one potential argument, which is also the

principal subject of Montroy’s Rule 51(b) response: whether Montroy is entitled to

credit against his federal sentence for the 76 days he spent in federal custody

awaiting trial even though Wisconsin credited that time against his state sentences. 

Such a claim would be frivolous because we would lack jurisdiction to review it. 

The Bureau of Prisons, and not the district court, has exclusive authority to

compute credit under 18 U.S.C. § 3585(b), see United States v. Ross, 219 F.3d 592,

594 (7th Cir. 2000); United States v. McGee, 60 F.3d 1266, 1272 (7th Cir. 1995), and

Montroy has not exhausted his administrative remedies by first seeking

administrative review of the computation of his credits, see United States v. Wilson,

503 U.S. 329, 335 (1992); McGee, 60 F.3d at 1272.
No. 06-1920 Page 3

Montroy additionally argues that the court misapplied § 5G1.3 when it failed

to reduce his guidelines imprisonment range by the additional 76 days. But any

such argument would be frivolous because § 5G1.3 did not require the court to

credit any time Montroy served for the burglary offense. Subsection (b) of that

guideline requires that a new sentence run concurrent to an undischarged sentence

only if the undischarged term is “fully taken into account” in calculating the

guidelines range; otherwise, sentencing courts have discretion under subsection (c)

to impose concurrent, partially concurrent, or consecutive sentences. See U.S.S.G.

§ 5G1.3(b),(c); United States v. Johnson, 324 F.3d 875, 878-79 (7th Cir. 2003); Ross,

219 F.3d at 594. Montroy’s state burglary conviction was not taken into account in

calculating his guidelines imprisonment range—it was not considered relevant

conduct in determining his offense level, nor was it counted towards his criminal

history score—so the district court was free to exercise its discretion in fashioning

Montroy’s sentence. Cf., United States v. Gabel, 85 F.3d 1217, 1223 (7th Cir. 1996)

(prior burglaries not relevant conduct to money laundering or illegal structuring

offenses); U.S.S.G. § 3D1.2(d) & cmt. 6 (burglary cannot be grouped with other

property crimes). The 24-month reduction that Montroy received was a boon, and

he cannot complain that the district court did not confer an even greater benefit. 

For the above reasons, we GRANT counsel’s motion to withdraw and

DISMISS the appeal.