IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50551 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID GREGORY SURASKY,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-90-CR-76-01-JN -------------------- January 29, 2003

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

David Gregory Surasky, federal prisoner #52646-080,

appeals from the denial of his motion for time spent in state

custody to be credited to his federal sentence and the denial of

his petition for audita querela relief from the fine imposed on him

for his controlled substance and firearm conviction. He argues

that U.S.S.G. § 5G1.3, which governs the imposition of concurrent

and consecutive sentences, requires an order granting him credit

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-50551 -2-

for time served in state custody between his arrest and his state-

court conviction. He argues that the district court erred by

denying his petition for audita querela relief because he cannot

pay his fine and will not be able to do so upon release because of

his deteriorating physical condition.

We construe the motion for time to be credited against

Surasky’s sentence as a petition for habeas corpus relief under

. See United States v. Garcia-Gutierrez,

(5th Cir. 1988). The district court lacked jurisdiction

to address the petition. See United States v. Gabor,

(5th Cir. 1990). However, we address Surasky’s substantive

contentions in the interest of judicial efficiency. See Garcia-

Gutierrez,

. Surasky was given credit against his

state sentence for the time he seeks to have credited against his

federal sentence. The relevant statute does not allow the result

that Surasky seeks.

(b). The district court correctly denied Surasky

credit against his federal sentence.

Surasky’s allegedly limited future earnings potential due

to deteriorating health does not present a legal defense against

the fine. See United States v. Banda.

(5th Cir.

1993). The district court did not err by denying Sursaky audita

querela relief.

AFFIRMED.