U.S. v. Flores

• Citation: 616 F.2d 840
• Decision Date: 08 May 1980
• Docket Number: No. 79-2936,79-2936
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan A. FLORES, Defendant-Appellant. Summary Calendar. *
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 840

616 F.2d 840

UNITED STATES of America, Plaintiff-Appellee, v. Juan A. FLORES, Defendant-Appellant.

No. 79-2936

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

May 8, 1980.

David J. Gottlieb, University of Kansas School of Law, Lawrence, Kan., for Kansas Defender Project, amicus curiae.

J. A. Canales, U. S. Atty., John M. Potter, James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GODBOLD, REAVLEY and ANDERSON, Circuit Judges.

GODBOLD, Circuit Judge.

Flores was convicted of a drug offense and on February 12, 1976, was sentenced to three concurrent ten-year sentences with five years special parole. Later he pleaded guilty to another drug offense and on December 13, 1976, was sentenced to ten years in prison but with five years special parole "to run concurrently with the sentence imposed in (the first case)."

The sentences could not be concurrent in the sense of having the same starting date because a federal sentence cannot commence prior to the date it is pronounced, even if made concurrent with a sentence already being served. Wilson v. Henderson, 468 F.2d 582, 584 (5th Cir. 1972).

Petitioner filed several motions to vacate. First he filed one through counsel in which he alleged:

It was the understanding of this defendant, that pursuant to his plea bargaining agreement entered in this cause with the United States Attorney, and approved by the court, that the ten (10) year sentence assessed in this case would not extend or increase his period of incarceration.

Then he filed a pro se motion stating that in the second case he:

Plead guilty with a plea bargain that any time he received would run concurrently with the sentence imposed earlier . . . and he "would not have to do one more day than he already had." (Ten years.)

Later his trial attorney filed an affidavit stating that a plea bargain was made, and that he understood that in return for dismissing the appeal in the first case and entering a plea of guilty to one count of the indictment in the second case, Flores would receive a ten-year sentence "to run fully concurrent" with the ten-year sentence already received in the first case.

The district court denied the petition on the ground that the record of the sentencing proceeding showed no mention of any agreement beyond the agreement that the second sentence would be concurrent. ¹

Flores' appropriate remedy is under § 2255, not 28 U.S.C. § 2241, since the alleged errors occurred at or prior to sentencing. Lenhardt v. U. S., 416 F.2d 1254, 1255 (5th Cir. 1969). This being so the proceedings were properly filed in the sentencing court and not in the district court in Kansas where Flores was imprisoned.

On the merits, Flores is barred from relief by Bryan v. U. S., 492 F.2d 775 (5th Cir. 1974) en banc, cert. denied, 419 U.S. 1079, 1117, 95 S.Ct. 668, 798, 42 L.Ed.2d 674, 817 (1974), and our succeeding cases, e. g., U. S. v. Dabdoub-Diaz, 599 F.2d 96, 100 (5th Cir.), cert. denied, --- U.S. ----, 100 S.Ct. 164, 62 L.Ed.2d 107 (1979); Thomas v. Estelle, 550 F.2d 1014, 1016 (5th Cir. 1977); Dugan v. U. S., 521 F.2d 231, 233 (5th Cir. 1975). Flores has presented only his bare assertion that the bargain made was that he would not have to do one more day in time than he was already required to do. He has not alleged who made such a...