Alvin Conerly v. STAN A. YATES, Warden, FCI Allenwood On Appeal From the United States District…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4664
ALVIN CONERLY,
Appellant
v.
STAN A. YATES,
Warden, FCI Allenwood
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 03-cv-01057)
District Judge: Honorable Christopher C. Conner
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
October 7, 2005
Before: ALITO, SMITH AND COWEN, CIRCUIT JUDGES
(Filed: October 11, 2005)
_______________________
OPINION
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PER CURIAM
Alvin Conerly appeals the District Court’s order denying his petition filed pursuant
to 28 U.S.C. § 2241. In his petition, Conerly challenged the Bureau of Prison’s
calculation of his sentence and alleged that he was entitled to credit for time spent in
temporary federal custody and in state custody. The District Court denied his petition,
and Conerly filed a timely notice of appeal.
We have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s
legal conclusions is plenary, and we review its findings of facts for clear error. See
Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir. 2002). The procedural history of this case
and the details of Conerly’s claims are well-known to the parties, set forth in the District
Court’s opinion, and need not be repeated here. On appeal, Conerly contends that
appellee waived any defense to his claim by failing to timely respond to it. We disagree.
Conerly also argues that he is entitled to credit on his federal sentence for the time served
on his second state sentence because this sentence for conspiracy and bank robbery was
based on the same offense or acts as the federal sentence for racketeering. However, a
RICO offense is not the same as the underlying predicate act and can be prosecuted and
sentenced separately. See United States v. Pungitore, 910 F.2d 1084 (3d Cir.
1990)(allowing prosecution for a RICO offense after conviction for the underlying
predicate offense); United States v. Grayson, 795 F.2d 278, 283 (3d Cir. 1986)(allowing
separate prosecutions and cumulative punishments for RICO offense and underlying

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predicate offense.).
For the above reasons, as well as those set forth by the District Court, we will
affirm the District Court’s December 20, 2004, order.

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