Dunn v. United States, No. 10249.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: HAYNSWORTH, , and SOBELOFF and BOREMAN, Circuit
• Citation: 376 F.2d 191
• Parties: William DUNN, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 10249.
• Decision Date: 24 February 1967

376 F.2d 191 (1967)

William DUNN, Appellant,
v.
UNITED STATES of America, Appellee.

No. 10249.

United States Court of Appeals Fourth Circuit.

Argued February 9, 1967.

Decided February 24, 1967.

As Modified July 27, 1967.

376 F.2d 192

Robert C. Wood, III, Richmond, Va., Court-assigned counsel (Mays, Valentine, Davenport & Moore, Richmond, Va., on brief), for appellant.

Albert Q. Taylor, Jr., Asst. U. S. Atty. (John C. Williams, U. S. Atty., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and SOBELOFF and BOREMAN, Circuit Judges.

SOBELOFF, Circuit Judge.

Financially unable to furnish the required $10,000.00 bond, appellant William Dunn spent 56 days in jail awaiting trial on an indictment charging him with violating the Dyer Act, 18 U.S.C. § 2312 (1964). Upon his conviction, the District Judge imposed the maximum sentence of five years and denied him credit for the time theretofore spent in jail. After an unsuccessful appeal to this court from his conviction,¹ Dunn moved under Rule 35, Fed.R.Crim.P., for a credit of the 56 days against his sentence. The District Court denied the motion on the ground that since conviction for violating the Dyer Act does not require the imposition of a minimum mandatory sentence, credit for presentence custody is warranted only where the defendant was denied his constitutional right to bail. As Dunn never applied for a reduction in bond, the District Court reasoned that the defendant's right to bail had not been infringed and he was entitled to no relief.

In its ruling the District Court relied on 18 U.S.C. § 3568 (1964), which provides in pertinent part that

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

376 F.2d 193

want of bail set for the offense under which sentence was imposed where the statute requires the imposition of a minimum mandatory sentence.²

While it is true that, literally, this section does not affirmatively require that credit be given for presentence custody to defendants not convicted of crimes carrying minimum mandatory sentences, a recent decision by the District of Columbia Circuit convincingly demonstrates that affording such credit is not only consistent with the congressional design but is also required by the Fifth Amendment. In Stapf v. United States, 367 F.2d 326 (D.C.Cir.1966), the court held that granting or denying credit on the basis of whether the offense is one for which a minimum mandatory sentence is imposed is an irrational, and hence unconstitutional, distinction.

The court noted that prior to the enactment of section 3568 it was the uniform practice in imposing sentence to give credit for time spent in presentence custody in all cases except those involving violation of statutes expressly requiring the imposition of a minimum sentence. The exception arose, according to the Stapf case, because sentencing judges felt that this was necessary in order not to conflict with the statutory mandatory minima. The court construed section 3568 as designed to extend credit to the theretofore excluded class, and not to withdraw it from...