United States of America, Plaintiff-appellee, v. Robert Daniel Mistretta, A/k/a Robert Lance Mistretta,defendant-appellant, 977 F.2d 574 (4th Cir. 1992)

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US Court of Appeals for the Fourth Circuit - 977 F.2d 574 (4th Cir. 1992) Submitted: July 15, 1992Decided: September 25, 1992

Appeal from the United States District Court for the District of South Carolina, at Greenville. Charles E. Simons, Jr., Senior District Judge. (CR-81-56)

Robert Daniel Mistretta, Appellant Pro Se.

Wells Dickson, Columbia, South Carolina, for Appellee.

D.S.C.

Affirmed.

Before HALL, WILKINSON, and WILKINS, Circuit Judges.

OPINION

PER CURIAM:


Robert Daniel Mistretta appeals from an order of the district court denying his motion for a credit against his sentence pursuant to 18 U.S.C.A. § 3568 (West 1985) (repealed 1986).*  Mistretta seeks expedited review in this Court. We modify the decision below and affirm.

A claim for credit against a sentence attacks the computation of the sentence rather than the sentence itself. United States v. Miller, 871 F.2d 488, 490 (4th Cir. 1989). Consequently, judicial review must be sought under 28 U.S.C. § 2241 (1988) in the district of confinement rather than the sentencing court. Id. In cases such as the present, where relief is sought in the sentencing court, the court is without jurisdiction to consider the request. Id.

Because Mistretta sought relief in the sentencing court, rather than in the court having jurisdiction over his place of confinement, the district court should have dismissed for lack of jurisdiction rather than deciding the case on the merits. Accordingly, pursuant to 28 U.S.C. § 2106 (1988), we modify the judgment below to reflect that the case is dismissed without prejudice for lack of jurisdiction, and we affirm the decision as so modified. We deny Mistretta's Motion for Appointment of Counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED AS MODIFIED

 *

Though this section has been repealed, it is still applicable to Mistretta because his conviction was final in 1981