United States of America, Plaintiff-appellee, v. John M. Wyatt, Defendant-appellant, 951 F.2d 1261 (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.

Defendant-appellant John Wyatt appeals two orders of the district court denying his claim pursuant to 28 U.S.C. § 2255 and Fed. R. Crim. P. 35(a). On appeal, Wyatt contends that the district court erred by failing to correct his illegal sentence and by failing to grant appellant's request for credit for time served while out on pretrial release. We affirm.

Pursuant to 28 U.S.C. § 2255, Wyatt contends that the district court erred in denying his request for credit for time served prior to trial. The Bail Reform Act of 1966, 18 U.S.C. § 3568, designated the Attorney General, not a court, as the proper entity to determine credit for a "defendant's time in custody prior to imposition of sentence." United States v. Baez, 732 F.2d 780, 782 (10th Cir. 1984). Wyatt has made no showing that he has exhausted this administrative remedy. Therefore, the district court correctly determined that it did not have jurisdiction to hear Wyatt's claim.

Wyatt also filed an action pursuant to Fed. R. Crim. P. 35(a), contending that he was illegally sentenced under the Sentencing Reform Act of 1984. Wyatt filed this action while his direct appeal was pending in this Court. When a notice of appeal is filed the district court loses jurisdiction over the case. See United States v. Johns, 638 F.2d 222, 224 (10th Cir. 1981). Therefore, the district found that it was without jurisdiction to entertain this motion.

Accordingly, both appeals are DISMISSED without prejudice. The mandate shall issue forthwith.