IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                            No. 95-30117

                         Summary Calendar



EDWARD G. ROBICHAUX,
                                           Petitioner-Appellant,

                               versus

WARDEN, FEDERAL DETENTION
FACILITY,
                                           Respondent-Appellee.




          Appeal from the United States District Court
              for the Western District of Louisiana
                           (94-CV-1093)


                        (October 20, 1995)

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Edward G. Robichaux appeals from the United States District

Court's dismissal of his petition for writ of habeas corpus

seeking jail-time credit for time served in a half-way house

prior to the commencement of his term of imprisonment.    We have

jurisdiction, 28 U.S.C. § 2241, and we now affirm.

                                 I.

     *
      Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
     On February 6, 1992, Robichaux was convicted of three counts

of mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343,

2.   The district court released Robichaux on unsecured bond on

the condition that he remain at a halfway house pending

sentencing.   See 18 U.S.C. § 3142(c) (authorizing release subject

to conditions).   The order of release specified that he was not

to leave the house unless he was accompanied by his attorney or

was in need of medical treatment.    Robichaux willingly accepted

these conditions, signing the order of release.

     On April 22, 1992, the district court sentenced Robichaux to

57 months imprisonment, such term to begin on June 12, 1992.    The

court ordered Robichaux, in the interim, to remain at the half-

way house pursuant to the terms of the order of release.    On June

11, 1992, Robichaux surrendered to federal authorities at the

Federal Corrections Institute at Talladega, Alabama.

     Soon after commencing his imprisonment, Robichaux petitioned

prison officials for credit for the time he had spent at the

half-way house.   The Bureau of Prisons denied his request.

Robichaux appealed to the Regional Director and subsequently to

the Administrator for National Inmate Appeals, both of whom

rejected his request.

     On June 13, 1994, Robichaux filed a petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2241 in the Eastern

District of Louisiana.   Robichaux claimed that the BOP's refusal

to credit the time he spent in the half-way house towards his

term of imprisonment violated 18 U.S.C. § 3585(b), which provides


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that, in certain circumstances, "[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."   In addition, Robichaux argued that the BOP's refusal

to grant him credit for time served in the half-way house

violated the equal protection component of the Due Process Clause

of the Fifth Amendment to the United States Constitution since

other residents of the half-way house who had already begun

serving their prison sentences received such credit.

     The petition was referred to a magistrate judge, who

recommended dismissal of the petition.   The magistrate judge

concluded that Robichaux's confinement in the half-way house did

not constitute "official detention" since that term does not

include time spent under restrictive conditions imposed as part

of an order of release.   The magistrate judge also rejected

Robichaux's equal protection argument, concluding that Robichaux

was not similarly situated to postsentence residents who were

confined under similar restrictions at the half-way house but who

received credit for time spent there.    The district court adopted

the magistrate judge's recommendation and dismissed Robichaux's

petition.   Robichaux timely appealed.

                                II.

     Robichaux first claims that he is entitled under 18 U.S.C.

§ 3585(b) to receive credit for the time he spent in the halfway

house prior to the beginning of his imprisonment.   We disagree.

After the district court rendered its decision, the United States


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Supreme Court held in Reno v. Koray, 

, 

(1995), that time spent in a halfway house prior to the

commencement of a federal prison sentence is not "official

detention" entitling the detainee for credit for time served

there.   In Koray, the petitioner, like Robichaux, sought jail-

time credit for time spent at a halfway house after conviction

but prior to commencement of the federal sentence.    We see no

difference between this case and Koray, and we reject Robichaux's

claim accordingly.   See also Pinedo v. United States, 

, 14 (5th Cir. 1992) (rejecting similar claim under 18 U.S.C.

§ 3585(b)).

     Robichaux next contends that BOP's refusal to credit the

time served at the halfway house against his term of imprisonment

violates his equal protection rights.    Once again, we disagree.

Because neither a suspect classification nor a fundamental right

is involved, we review the BOP's decision under the rational

basis test.   City of Cleburne v. Cleburne Living Ctr., Inc., 

, 440-42, 

, 

(1985).   To

prevail, Robichaux must demonstrate both that he is similarly

situated to postsentence halfway house residents who receive

credit for time spent at the house, and, if so, that there is no

rational basis for withholding credit from Robichaux while

granting it to postsentence residents.    Id.; Dawson v. Scott, 

, 892 (11th Cir. 1995).

     Robichaux fails to demonstrate that he is similarly situated

to residents who are given jail-time credit for the time they


                                  4
spent at the halfway house.   Even if presentence and postsentence

residents of a halfway house live under similar restrictions,

"their divergent legal status negates the possibility that they

are similarly situated."   United States v. Woods, 

,

656 (10th Cir. 1989), cert. denied, 

, 

, 

(1990); see also Rodriguez v. Lamer, 

, 749 (11th Cir. 1995); Fraley v. United States Bureau of

Prisons, 

, 926 (9th Cir. 1993).

     During their time at the halfway house, postsentence

residents remain in the custody of the Attorney General.      

.   Postsentence residents "are subject to BOP's

disciplinary procedures; they are subject to summary reassignment

to any other penal or correctional facility within the system;

and, being in the legal custody of BOP, the Bureau has full

discretion to control many conditions of their confinement."      

.   Moreover, if they

attempt to leave, they may be prosecuted for escape.    See 18

U.S.C. § 751(a); 

.

     In contrast, presentence residents at the halfway house,

such as Robichaux, are in the custody of the proprietors of the

halfway house, not in the custody of the Attorney General.

Moreland v. United States, 

, 659-60 (8th Cir.), cert.

denied, 

, 

(1992).   The court, not

the Attorney General, is responsible for disciplining presentence

residents who violate the terms of their confinement.   The

sanctions that the court may impose, which include revoking the


                                 5
release order, issuing a detention order, and holding the

presentence resident in contempt of court, differ from BOP

disciplinary measures for unruly postsentence residents.       See 18

U.S.C. § 3148(a); Dawson, 

& n.23.      In addition,

presentence residents who leave the halfway house cannot be

prosecuted for escape since they are not in the custody of the

Attorney General.    See United States v. Baxley, 

,

1270 (9th Cir. 1992).   In short, while Robichaux was required to

obey many of the same rules, his legal status at the house

differed from that of the postsentence residents, and "it is not

the type of detention, but the respective difference in legal

status that is dispositive" in determining whether Robichaux was

similarly situated to postsentence residents.       

.

       Robichaux responds that the Eleventh Circuit in Johnson v.

Smith, 

(11th Cir. 1983), held that presentence

residents were similarly situated to postsentence residents and

that, therefore, the BOP's decision not to award presentence

residents jail-time credit for the time they spent at a halfway

house violated their equal protection rights.      The Eleventh

Circuit, however, has subsequently limited Johnson to its facts.

See 

n.20.       Unlike here, "[i]n Johnson, the

government failed to differentiate presentence defendants and

postsentence convicts in the district court, gave no reason why

postsentence defendants were credited while presentence

defendants were not, and conceded that they actually were


                                   6
similarly situated."     

Eleventh Circuit in Dawson

retreated from its holding in Johnson and rejected an equal

protection argument identical to Robichaux's.

     We hold that presentence residents held in a halfway house

pursuant to a release order are not similarly situated to

postsentence residents and, therefore, the BOP did not violate

Robichaux's equal protection rights by failing to award him jail-

time credit for the time he spent at the halfway house.

                                  III.

     Neither 18 U.S.C. § 3585(b) nor equal protection require the

BOP to grant Robichaux credit for the time he spent at the

halfway house prior to the commencement of his federal prison

sentence.   We AFFIRM the district court's dismissal of

Robichaux's petition.1




     1
          Robichaux also claims that he should have been notified
at the time he signed the release order that he would not be
given credit for time served at the halfway house. Because this
contention is raised for the first time on appeal, we do not
reach it.

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