United States of America, Plaintiff-appellee, v. Thomas Raymond Magee, Iii, Defendant-appellant, 86 F.3d 1164 (9th Cir. 1996)

MEMORANDUM^** 

Thomas Raymond Magee, III appeals the district court's denial of his second 28 U.S.C. § 2255 motion to correct his sentence of fifty-one months imprisonment and three years supervised release for assaulting his wife.¹  Magee contends that: (1) the district court abused its discretion by failing to remove false statements from the presentence report ("PSR"); (2) the district court erred in its determination of the severity of the victim's injuries and in sentencing Magee based on that determination; (3) the district court imposed excessive restitution; (4) the district court imposed an excessive term of supervised release; and (5) he deserves credit toward his sentence for the time he was released on bail pending trial. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2255. We review de novo the district court's denial of Magee's § 2255 motion, Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994), and affirm.² 

Prior to filing his current § 2255 motion, Magee appealed his conviction and sentence to this court and the court affirmed both his conviction and sentence. The district court then denied Magee's first § 2255 motion and Magee did not appeal the court's decision.

We are foreclosed from reviewing nonconstitutional sentencing errors under § 2255 when such errors have not been raised on direct appeal. United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1995).

Here, Magee's contentions regarding his PSR, restitution, and supervised release raise issues of nonconstitutional sentencing error. Because he did not raise these issues on direct appeal, we will not review them here. See Schlesinger, 49 F.3d at 485. Magee's contention regarding the district court's determination of his sentence based on the severity of the victim's injuries was raised on direct appeal and was expressly rejected by us. Therefore, we will not review that claim on this appeal. See United States v. Redd, 759 F.2d 699, 700-01 (9th Cir. 1985); Egger v. United States, 509 F.2d 745, 748 (9th Cir.), cert. denied, 423 U.S. 842 (1975).

Magee contends that because his release was subject to several conditions, he is entitled to credit pursuant to 18 U.S.C. § 3585(b) for the eight days he was released on bail pending trial.

"A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences ... as a result of the offense for which the sentence was imposed." 18 U.S.C. § 3585(b) (1994). A court may release a defendant pending trial subject to a variety of restrictive conditions. Reno v. Koray, 115 S. Ct. 2021, 2025 (1995). A defendant suffers detention, however, only when committed to the custody of the Attorney General. Id. "Unlike defendants 'released' on bail, defendants who are 'detained' ... always remain subject to the control of the Bureau [of Prisons]." Id. at 2028; cf. United States v. Robles, 563 F.2d 1308, 1309 (9th Cir. 1977) (per curiam) (discussing predecessor statute to 18 U.S.C. § 3585(b), noting that time spent on bail pending appeal is not time served 'in custody'), cert. denied, 435 U.S. 925 (1978).

Here, the restrictive conditions to which Magee was subject during his release on bail do not amount to official detention within the meaning of 18 U.S.C. § 3585(b). See Koray, 115 S. Ct. at 2025.³  During his period of release, Magee was not committed to the custody of either the Attorney General or the Bureau of Prisons, and therefore was not detained. See id. at 2025, 2028. Accordingly, Magee is not entitled to credit for the eight days he was released pending trial. See id. at 2029; see also United States v. Freeman, 922 F.2d 1393, 1397 (9th Cir. 1991) (discussing predecessor statute to 18 U.S.C. § 3585(b), noting that "federal case law overwhelmingly rejects the notion of credit for release on bond pending trial").⁴ 

AFFIRMED.