United States of America, Plaintiff-appellee, v. David Lawrence Shumate, Defendant-appellant, 995 F.2d 1068 (6th Cir. 1993)

ORDER

David Lawrence Shumate, a pro se federal prisoner, appeals a district court order denying his motion for sentence credit for prior custody under 18 U.S.C. § 3585. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Shumate was sentenced on March 28, 1992, to 92 months imprisonment following his convictions for being a felon in possession of a firearm and for possession of cocaine base. In his motion, Shumate stated that he was under "house arrest" from August 8, 1990, through April 25, 1991, while he was awaiting trial. He sought credit against his sentence for that period of time.

In an order filed August 21, 1992, the district court denied Shumate's motion on the ground that it had no jurisdiction to grant sentence credit. On appeal, Shumate continues to argue the merits of his motion and contends that the district court has the authority to grant him sentence credit.

Upon review, we shall affirm the district court's order because the district court lacked subject matter jurisdiction over this action. The Supreme Court recently held that the authority to award sentence credit under § 3585(b) is granted by Congress to the Attorney General rather than to the sentencing court. See United States v. Wilson, 112 S. Ct. 1351, 1353 (1992). The Attorney General's determination, however, remains subject to review by the federal district court following the exhaustion of administrative remedies. Id. at 1355. See also United States v. Westmoreland, 974 F.2d 736, 737 (6th Cir. 1992), petition for cert. filed (Dec. 1, 1992). Shumate has not exhausted his administrative remedies.

Accordingly, the district court's order, entered September 9, 1992, is hereby affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.