Holt v. United States, 17602.
Decision Date | 23 January 1970 |
Docket Number | No. 17602.,17602. |
Citation | 422 F.2d 822 |
Parties | Melvin C. HOLT, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
Court | U.S. Court of Appeals — Seventh Circuit |
Melvin C. Holt, pro se.
Frank J. Violanti, U. S. Atty., Springfield, Ill., for appellee.
Before CASTLE, Chief Judge, and KILEY and KERNER, Circuit Judges.
On October 16, 1961, petitioner pleaded guilty to three counts charging him with interstate transportation of forged securities, in violation of 18 U.S.C. § 2314, and one count charging attempted escape from custody, in violation of 18 U.S.C. § 751. The district court sentenced defendant to concurrent eight year prison terms on the three counts charging violation of § 2314, and a five year term on the count charging violation of § 751, the latter sentence to run concurrently with the former. The maximum term of imprisonment for conviction under § 2314 is ten years and the maximum under § 751 is five years. On March 6, 1969, petitioner filed a motion pursuant to 28 U.S.C. § 2255, asking that a credit of 117 days, representing petitioner's pre-sentence confinement due to his inability to secure a bail bond, be deducted from his sentence. The district court denied the motion and petitioner brought this appeal. We affirm.
Since the 1966 amendment of 18 U.S.C. § 3568, which requires that all time spent in pre-sentence confinement be credited to the prisoner's sentence, is applicable only to sentences imposed after the effective date of the amendment, September 20, 1966,1 we must look at the law as it stood prior thereto.
The leading case of United States v. Stapf, 125 U.S.App.D.C. 100, 367 F.2d 326 (1966), held that by amending 18 U.S.C. § 3568 in 1960 to provide an automatic credit of pre-sentence time served for mandatory minimum term offenses, Congress also intended such credit to be given if the maximum sentence allowed under the law was imposed. Many other cases have followed the holding of Stapf: United States v. Smith, 379 F.2d 628 (7th Cir. 1967), cert. den. 389 U.S. 993, 88 S.Ct. 491, 19 L.Ed.2d 486; Sobell v. United States, 407 F.2d 180 (2d Cir. 1969); Dunn v. United States, 376 F.2d 191 (4th Cir. 1967); United States v. Whitfield, 411 F.2d 545 (8th Cir. 1969); Bryans v. Blackwell, 387 F.2d 764 (5th Cir. 1967); Lee v. United States, 400 F.2d 185 (9th Cir. 1968).
See also United States v. Whitfield, supra, 411 F.2d at 546.
It is clear from the record, therefore, that petitioner in the instant case is entitled to no relief. Although he was given the maximum sentence under the count charging him with attempted escape, in violation of 18 U.S.C. § 751, this sentence was to be served concurrently with the less than maximum term imposed under the other three counts. We agree with the holding of United States ex rel. Sacco v. Kenton, 386 F.2d 143, 145 (2d Cir. 1967), where the Court stated:
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