United States of America, Plaintiff-appellee, v. Tracy Lee Emily, Defendant-appellant, 948 F.2d 1295 (10th Cir. 1991)

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

This matter is before the court on an "Emergency Motion And Supporting Memorandum In Lieu Of Brief On Appeal." Mr. Emily seeks an order of this court reversing the district court's decision that his incarceration at the Federal Correctional Institution at Big Springs, Texas, does not violate 18 U.S.C. § 4083.

Mr. Emily was convicted of a misdemeanor under 18 U.S.C. § 491(A) and sentenced to six months' imprisonment. Pursuant to § 4083, " [a] sentence for an offense punishable by imprisonment for one year or less shall not be served in a penitentiary without the consent of the defendant." Mr. Emily argues that incarceration at Big Springs, Texas, violates this section. We disagree.

This facility is a Federal Correctional Institution, not a penitentiary. See 28 C.F.R. §§ 503.1-503.6. Sentencing Mr. Emily to this institution does not violate the statute. See United States v. Hanyard, 762 F.2d 1226, 1228 (5th Cir. 1985). The motion is, therefore, denied.

The judgment of the United States District Court for the District of Colorado is AFFIRMED. The mandate shall issue forthwith.