425 F.2d 1388 (5th Cir. 1970), 28187, United States v. Morgan

Docket Nº:28187
Citation:425 F.2d 1388
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Joseph William MORGAN, a/k/a Lester Carter, a/k/a Edward James Johnson, Defendant-Appellant.
Case Date:May 01, 1970
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1388

425 F.2d 1388 (5th Cir. 1970)

UNITED STATES of America, Plaintiff-Appellee,


Joseph William MORGAN, a/k/a Lester Carter, a/k/a Edward James Johnson, Defendant-Appellant.

No. 28187

United States Court of Appeals, Fifth Circuit.

May 1, 1970

Page 1389

Joseph W. Morgan, pro se.

John L. Briggs, U.S. Atty., Jacksonville, Fla., Bernard H. Dempsey, Jr., Asst. U.S. Atty., Tampa, Fla., for appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

GODBOLD, Circuit Judge:

Under 1966 amendments to 18 U.S.C. 3568, the Attorney General is required to give a federal prisoner 'credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.' In this case we are asked to review a denial by the District Court of credit against a sentence imposed after the effective date of the amendments. 1

The sentencing judge, in response to a letter from the prisoner which he construed as a motion for correction of sentence under Rule 35, Fed.R. Crim. P., denied credit. He relied on those cases, e.g., Stapf v. United States, 125 U.S.App.D.C. 100, 367 F.2d 326 (1966), which held under the earlier version of 3568 that granting of credit was a function for the trial judge, and that an appellate court would conclusively presume that credit was given unless the sum of the imposed sentence and presentence jail time served was greater than the statutory maximum sentence for the offense charged. Hyler v. Alexander, 423 F.2d 1215 (5th Cir.1970); Bryans v. Blackwell, 387 F.2d 764 (5th Cir.1967). The District Judge therefore determined that he was not compelled as a matter of law to give credit, 2 and declined to exercise his discretion to reduce sentence because of his practice of giving credit at the time of sentencing. He did not refer to the Attorney General's role. The 1966 amendments make granting of credit an administrative

Page 1390

matter rather than one for judicial discretion. 3 Initially the government urged on this appeal that the action of the trial court should be affirmed on the ground that matters of credit under 3568 for time served are now solely for the Attorney General and that a prisoner should not look at all to the sentencing judge for such sentence credit. We requested the Attorney General to file an additional brief stating whether Morgan has been given or denied credit, describing the administrative practice in the matter of credit and stating his view toward judicial review of administrative action. Such a brief now has been filed.

The government reports that appellant has not been given credit. It acknowledges that the...

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