United States v. McCullough

• Decision Date: 03 January 1969
• Docket Number: No. 25746,25861,25744,25886.,25746
• Citation: 405 F.2d 722
• Parties: UNITED STATES of America, Appellant, v. Samuel E. McCULLOUGH, Appellee. UNITED STATES of America, Appellant, v. Bland Mann WATERS, Appellee. Olin G. BLACKWELL, Warden, United States Penitentiary, Atlanta, Georgia, Appellant, v. Richard Reed CRISWELL, Appellee. Olin G. BLACKWELL, Warden, United State Penitentiary, Atlanta, Georgia, Appellant, v. Rufus Killis SELLERS, Jr., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

405 F.2d 722 (1969)

UNITED STATES of America, Appellant, v. Samuel E. McCULLOUGH, Appellee.

UNITED STATES of America, Appellant, v. Bland Mann WATERS, Appellee.

Olin G. BLACKWELL, Warden, United States Penitentiary, Atlanta, Georgia, Appellant, v. Richard Reed CRISWELL, Appellee.

Olin G. BLACKWELL, Warden, United State Penitentiary, Atlanta, Georgia, Appellant, v. Rufus Killis SELLERS, Jr., Appellee.

Nos. 25746, 25744, 25861, 25886.

United States Court of Appeals Fifth Circuit.

January 3, 1969.

Theodore E. Smith, Asst. U. S. Atty., Atlanta, Ga., Charles L. Goodson, U. S. Atty., for appellants.

James A. Branch, III, Atlanta, Ga., for appellee, McCullough.

Bland Mann Waters, pro se.

Richard Reed Criswell, pro se.

Rufus Killis Sellers, Jr., pro se.

Before BELL and COLEMAN, Circuit Judges, and HOOPER, District Judge.

BELL, Circuit Judge:

These four appeals were consolidated in order to consider one narrow question: whether several maximum sentences running concurrently are to be treated as a maximum sentence for purposes of crediting a prisoner with time spent in jail prior to sentencing under 18 U.S.C.A. § 3568 as interpreted in Bryans v. Blackwell, 5 Cir., 1967, 387 F. 2d 764. The District Court answered in the affirmative. Sellers v. United States, 283 F.Supp. 891 (N.D.Ga., 1967). We agree.

Sellers was arrested and charged with a post office burglary September 21, 1961, and because of his inability to raise bail, was held in jail until the imposition of his sentences 107 days later. He was convicted on several counts and received two consecutive five-year sentences; two more consecutive five-year sentences which were to run concurrently with the first two sentences; and eight more five-year sentences which were to run concurrently with the first five years. The maximum sentence which could be imposed on any one count was five years.

Waters was arrested on March 28 1964, and charged with several counts of forgery, counterfeiting, altering and publishing a United States postal money order. He too was unable to raise bail and was confined for 152 days prior to the imposition of his sentences. He was convicted on three counts and received three five-year sentences which were to run concurrently. Five years was the maximum sentence which might have been imposed on any one count under the applicable statutes.

Criswell was arrested in 1964 for breaking into a post office building with intent to commit larceny and for stealing mail. Due to his inability to raise bail he remained in jail 145 days before his sentences were imposed. He was convicted on four counts and ordered to serve four concurrent five-year terms, the maximum under each count.

McCullough was also arrested in connection with a post office burglary. Because of his inability to raise bail, his presentence confinement was for 84 days. At his trial, McCullough was convicted of burglary and conspiring to commit a burglary, and sentenced to the maximum of five years on each of four counts. The sentences were to run concurrently.

After the defendants had begun serving their respective sentences in the federal penitentiary in Atlanta, each petitioned the District Court, seeking credit for the time served prior to imposition of their sentences. Having prevailed in the District Court, and their releases having been otherwise due, each is now admitted to bail.

The statute, Title 18 U.S.C.A. § 3568, prior to the 1966 amendment thereof, not here material, provided in pertinent part "* * * The Attorney General shall give any such person the defendant being sentenced credit toward service of his sentence for any days spent in custody prior to the imposition of sentence by the sentencing court for want of bail set for the offense under which sentence was imposed * * *."

This provision related only to minimum mandatory sentences but in Bryans v. Blackwell, supra, we made it applicable to all sentences. There the habeas petitioner had received two separate two-year sentences, to run concurrently, upon conviction on two counts of interstate transportation of falsely made securities. The maximum penalty under each count was ten years. He petitioned for immediate release, claiming credit for time served prior to sentencing. In holding the statutory provision to be applicable, the court,...