Unpublished Dispositiondavid Ray Ford, Petitioner-appellant, v. Patrick W. Keohane, Warden; Benjamin F. Baer, Chairman,u.s. Parole Commission, Respondents-appellees, 859 F.2d 921 (6th Cir. 1988)

Before WELLFORD and DAVID A. NELSON, Circuit Judges, and RICHARD B. McQUADE, District Judge.^* 

ORDER

This case has been referred to a panel of this court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Petitioner, a federal prisoner, filed this action under 28 U.S.C. § 2241 seeking sentence credits and collateral benefits stemming from time served pursuant to an earlier vacated federal sentence. The magistrate to whom the matter was referred recommended petitioner be granted partial relief but recommended petitioner's claim for sentence credits arising from time spent on parole be denied. Both sides filed objections. The district court ultimately adopted the magistrate's report and recommendation. Petitioner filed a notice of appeal contesting only the decision to deny him sentence credit for time spent on parole. Respondents did not take an appeal from the district court's order. On appeal the parties have briefed this issue, petitioner proceeding pro se.

Upon consideration, we conclude the district court properly denied petitioner relief. We have previously interpreted the relevant sentence credit statute (18 U.S.C. § 3568) as requiring actual physical confinement as a precondition to eligibility. Marrera v. Edwards, 812 F.2d 1517 (6th Cir. 1987) (order). Petitioner's conditional release on parole, while not unfettered, nevertheless falls far short of a restriction tantamount to incarceration. For these reasons, and for the reasons stated in the district court's order filed February 29, 1988, we affirm. Rule 9(b) (5), Rules of the Sixth Circuit.