Case: 17-50619      Document: 00514467848         Page: 1    Date Filed: 05/10/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                    No. 17-50619                                May 10, 2018
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARIO AVILA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:10-CR-1205-7


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       In 2012, Mario Avila pleaded guilty to conspiracy to transport illegal
aliens and was sentenced to 120 months of imprisonment. Almost five years
later, Avila filed a motion for an order nunc pro tunc, seeking credit toward his
federal sentence for a period of time he spent in state custody. The district
court denied his motion.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 17-50619     Document: 00514467848    Page: 2   Date Filed: 05/10/2018


                                 No. 17-50619

      Avila now appeals the district court’s denial of his motion. His claim for
credit toward his federal sentence for the period he spent in state custody
should have been construed as seeking habeas relief under 28 U.S.C. § 2241
because he is challenging the manner in which his sentence is being executed,
rather than the legality of his conviction or the validity of his sentence. See
Leal v. Tombone, 

, 427-30 (5th Cir. 2003); United States v.
Tubwell, 

, 177 (5th Cir. 1994). This court “review[s] de novo the
dismissal of a § 2241 petition on the pleadings.” Garcia v. Reno, 

,
258 (5th Cir. 2000).
      “To entertain a § 2241 habeas petition, the district court must, upon the
filing of the petition, have jurisdiction over the prisoner or his custodian.”
United States v. Brown, 

, 456 (5th Cir. 1985); see also Reyes-
Requena v. United States, 

, 895 n.3 (5th Cir. 2001) (noting that a
§ 2241 petition must be filed in the district of the prisoner’s incarceration).
When Avila filed his pleading in the district court, he was incarcerated in the
El Reno Federal Correctional Institution in Oklahoma, not in the Western
District of Texas. Accordingly, the district court was without jurisdiction to
consider the merits of Avila’s § 2241 petition. See 

;

n.3.
      We modify the judgment of the district court to explicitly reflect a
dismissal for want of jurisdiction to entertain Avila’s request. The judgment
is affirmed as so modified.
      AFFIRMED AS MODIFIED.




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