405 F.2d 467 (5th Cir. 1968), 25850, Benson v. United States

Docket Nº25850.
Citation405 F.2d 467
Party NameJohn BENSON, Jr., Appellant, v. UNITED STATES of America, Appellee.
Case DateDecember 13, 1968
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 467

405 F.2d 467 (5th Cir. 1968)

John BENSON, Jr., Appellant,

v.

UNITED STATES of America, Appellee.

No. 25850.

United States Court of Appeals, Fifth Circuit.

December 13, 1968

Page 468

John Benson, Jr., pro se.

H. M. Ray, U.S. Atty., Oxford, Miss., for appellee.

Before ALDRICH, [*] GODBOLD and DYER, Circuit Judges.

ALDRICH, Circuit Judge.

This opinion concerns subsequent chapters in the sentencing of appellant Benson, whose original sentence was vacated by this court in Benson v. United States, 5 Cir., 1964, 332 F.2d 288. The facts were these. Benson had pleaded guilty to a three-count indictment under which he could have been sentenced to five years on count one and ten years on each of the others. Instead of sentencing separately and consecutively, the court imposed a single, so-called general sentence of fifteen years. On an appeal from an adverse decision of the district court on a Rule 35 motion, 18 U.S.C., this court vacated this sentence as excessive under any single count and hence improper, stating that 'everything points to the importance of an articulate, identifiable sentence being imposed.' 332 f,2d at 291.

Benson having already served three years under the invalid sentence, in September 1964, following remand, the court imposed a two-year sentence on count one, thereby allowing the credit now in terms provided for by 18 U.S.C. § 3568, 1 and two ten-year, concurrent, sentences on counts two and three, to follow the two-year sentence. This procedure cost him the good time allowance provisionally earned during the three years, so that his release date under the three new sentences would, if his good behavior continued, be later than under the original sentence. Such, in effect, increase of sentence by deprivation of good time was error. Tinin v. United States, 10 Cir., 1966, 361 F.2d 829; see Walker v. United States, 5 Cir., 1968, 388 F.2d 605; 18 U.S.C. § 4161, 4202.

Realizing this inequity, the court two months later amended the ten and ten sentences to provide that they should be served concurrently with the two year sentence. This cut defendant's maximum time to ten years plus the three already served, thereby more than vesting the good time so far acquired.

We come to the present Rule 35 motion. No content with his previous bonanza, Benson now claims that he should be given credit for time served against his...

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2 practice notes
  • 423 F.2d 1215 (5th Cir. 1970), 28793, Hyler v. Alexander
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • March 23, 1970
    ...to credit for his presentence jail time, on his sentences for violation of 18 U.S.C. § 495. Cf. Benson v. United States, 5th Cir. 1968, 405 F.2d 467; United States v. McCullough, 5th Cir. 1969, 405 F.2d 722. The judgment of the district court is correct and it is hereby affirmed. Affirmed. ......
  • 405 F.2d 722 (5th Cir. 1969), 25746, United States v. McCullough
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • January 3, 1969
    ...for under our Bryans gloss on the statute. § 3568, supra. The dictum of the court in the case of Benson v. United States, 5 Cir., 1968, 405 F.2d 467, 469 is also instructive. Although a question not directly involved, the court said with respect to the matter of a Bryans v. Blackwell type o......
2 cases
  • 423 F.2d 1215 (5th Cir. 1970), 28793, Hyler v. Alexander
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • March 23, 1970
    ...to credit for his presentence jail time, on his sentences for violation of 18 U.S.C. § 495. Cf. Benson v. United States, 5th Cir. 1968, 405 F.2d 467; United States v. McCullough, 5th Cir. 1969, 405 F.2d 722. The judgment of the district court is correct and it is hereby affirmed. Affirmed. ......
  • 405 F.2d 722 (5th Cir. 1969), 25746, United States v. McCullough
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • January 3, 1969
    ...for under our Bryans gloss on the statute. § 3568, supra. The dictum of the court in the case of Benson v. United States, 5 Cir., 1968, 405 F.2d 467, 469 is also instructive. Although a question not directly involved, the court said with respect to the matter of a Bryans v. Blackwell type o......