Brown v. United States, 13445.

• Decision Date: 25 April 1947
• Docket Number: No. 13445.,13445.
• Parties: BROWN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

160 F.2d 310 (1947)

BROWN v. UNITED STATES.

No. 13445.

Circuit Court of Appeals, Eighth Circuit.

April 4, 1947.

Rehearing Denied April 25, 1947.

Elmo B. Hunter, of Kansas City, Mo., for appellant.

Sam M. Wear, U. S. Atty. and Earl A. Grimes, Asst. U. S. Atty., both of Kansas City, Mo., for appellee.

Before GARDNER, THOMAS and RIDDICK, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from an order denying appellant's motion to vacate or correct a sentence entered against him on his plea of guilty to a charge of violating the Federal Escape Act, 18 U.S.C.A. § 753h.

At the time of the entry of the challenged sentence three sentences had already been imposed against appellant by the United States District Court for the Western District of Arkansas. These sentences were all entered on October 26, 1945, the first being for a term of one year, the second for a term of two years and the third for a term of two years, the sentences to run consecutively. Following the imposition of these sentences appellant was confined to the Federal prison at Leavenworth, Kansas. On November 8, 1945, while appellant was being transported to the Federal prison at Leavenworth, Kansas, for confinement, he attempted to escape from the custody of the United States Marshal and his deputy. This attempt to escape was committed in the State of Missouri and an indictment was duly returned against him charging a violation of Title 18 U.S.C.A. § 753h. On a plea of guilty to the charge he was sentenced to the custody of the Attorney General of the United States for confinement for a period of five years, the term of the sentence "to begin at the expiration of any sentence he is now serving or to be served which was imposed prior to this date * * *."

On his motion to vacate or amend this sentence appellant contended and renews the contention here that the sentence imposed on him by the United States District Court for the Western District of Missouri should have been made to commence at the termination of the one year sentence, that being the first in order of time of the three consecutive sentences imposed upon him by the United States District Court for the Western District of Arkansas. The first sentence by its terms provided that it should be for a term of "one year from this date." (Italics suplied.) Title 18 U.S.C.A. § 709a, provides, among other things, that, "The sentence of imprisonment of any person convicted of a crime in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence: Provided, That if any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, the sentence of such person shall commence to run from the date on which he is received at such jail or other place of detention. No sentence shall prescribe any other method of computing the term."

As has been noted, appellant was, immediately following the imposition of his sentence, committed to the jail at El Dorado, Arkansas, to await transportation to the Federal prison at Leavenworth, Kansas, so that it conclusively appears that from the date of the imposition of the first sentence he was serving that sentence, and hence, he was serving that sentence at the time he attempted to escape on November 8, 1945. Galatas v. United States, 8 Cir., 80 F.2d 15. The trial court expressed the view that, "Defendant being held under three separate sentences at the time of his attempted escape and not entitled to his legal release therefrom until he had served the term of such sentences according to law, the Court could, under the Federal Escape Act, provide that the sentence imposed thereunder legally begin to run after the service of any one of such sentences, or the combined term of all such sentences." United States v. Brown, D.C., 67 F.Supp. 116, 119.

The sentence as actually imposed was to begin after the service of the combined term of all three prior sentences. The Federal Escape Act, 18 U.S.C.A. § 753h, provides that the sentence imposed upon one guilty of an offense thereunder "shall be in addition to and independent of any sentence imposed in the case in connection with which such person is held in custody at the time of such escape or attempt to escape." It further provides that, "If such person be under sentence at the time of such offense, the sentence imposed hereunder shall begin upon the expiration of, or upon legal release from, any sentence under which such person is held at the time of such escape or attempt to escape."

In the final analysis it would seem that the question determinative of the issue involved is whether at the time appellant attempted to escape he was, as the trial court said, "being held under three sentences." Manifestly, if he were so held then the court was warranted in imposing a sentence "to begin at the expiration of any sentence he is now serving or to be served, which was imposed prior to this date." (Italics supplied). By the specific mandate of his first sentence it was to begin on the date it was imposed. He was at once committed to a jail to await transportation to the place at which his sentence was to be served so that there can be no doubt that he at once began actually serving the first sentence imposed upon him. He could not have been serving nor was he being held under the other sentences because neither of them was to begin until a later date and they constituted no warrant for holding appellant. Each sentence was a separate one and they cannot be so commingled as to be converted into one continuous sentence.

The Federal Escape Act provides one rule where a person escapes from legal custody before conviction and another where a person is serving a sentence at the time of attempting to escape. In the former case the...