U.S. v. Shillingford, No. 77-1787

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before COLEMAN, CLARK and RUBIN; CHARLES CLARK; ALVIN B. RUBIN
• Citation: 586 F.2d 372
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dennis Paul SHILLINGFORD, Defendant-Appellant.
• Docket Number: No. 77-1787
• Decision Date: 14 December 1978

Page 372

586 F.2d 372 47 A.L.R.Fed. 748 UNITED STATES of America, Plaintiff-Appellee,
v.
Dennis Paul SHILLINGFORD, Defendant-Appellant. No. 77-1787. United States Court of Appeals,
Fifth Circuit. Dec. 14, 1978.

Page 373

George M. Strickler, Jr., New Orleans, La., for defendant-appellant.

Robert E. Hauberg, U. S. Atty., James B. Tucker, Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before COLEMAN, CLARK and RUBIN, Circuit Judges.

CHARLES CLARK, Circuit Judge:

A shoot-out between Shillingford and his co-defendants and state and federal officers left one policeman dead and another policeman and an FBI agent wounded. Because of his participation in the incident, Shillingford was indicted by a Mississippi state grand jury for murder and by a federal grand jury for violations of various criminal statutes. Count one of the federal indictment alleged that the defendants conspired to assault federal officers, to use firearms to commit a felony, and to possess unregistered firearms, all in violation of 18 U.S.C. § 371. Count two charged the defendants with assaulting and interfering with federal officers in violation of 18 U.S.C. § 111. ¹

Page 374

Count three alleged that the defendants used firearms to commit a felony assaulting federal officers in violation of 18 U.S.C. § 924(c)(1). ² As a result of a plea bargain negotiated with a state prosecutor, Shillingford entered a guilty plea to a reduced charge of assault with intent to kill and was sentenced to seven years' imprisonment. He was then convicted on the federal charges, and was sentenced to twelve years in prison, including a sentence of five years on count one; seven years on count two, to run concurrently with the sentence imposed on count one; and five years on count three, to run consecutively to the sentences meted out for counts one and two.

Shillingford appealed that conviction, and this court affirmed it. United States v. James, 528 F.2d 999 (5th Cir. 1976), Cert. denied, 429 U.S. 959, 97 S.Ct. 982, 50 L.Ed.2d 326 (1976). After the Supreme Court denied a writ of certiorari in his case, Shillingford filed a motion under Fed.R.Crim.Proc. 35 to reduce his sentence. The district court denied this motion without opinion. Shillingford has appealed this ruling. ³

Under 18 U.S.C. § 3568, ⁴ a person is entitled to a credit toward service of his federal sentence "for any days spent in custody in connection with the offense or acts for which sentence was imposed." Shillingford claims that since the acts of assault resulting in both the federal and state convictions were the same, § 3568 requires that the time spent in state custody on state charges be deducted from his federal sentence. ⁵ This contention is without merit. Even assuming that Shillingford's state and federal convictions arose from the same acts, § 3568 does not require a credit for time served on the state charges. Goode v. McCune, 543 F.2d 751 (10th Cir. 1976); Howard v. United States, 420 F.2d 478, 480 (5th Cir. 1970); Rodriguez v. United States, 405 F.2d 857 (5th Cir.), Cert. denied,395 U.S. 914, 89 S.Ct. 1762, 23 L.Ed.2d 228 (1969); Gilbert v. United States, 299 F.Supp. 689 (S.D.N.Y.1969) (lengthy discussion of legislative history of § 3568).

Page 375

It is constitutionally permissible for the state and federal governments to each impose a sentence on a defendant based on the commission of a single act constituting offenses under both state and federal law. Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Brown v. United States, 551 F.2d 619, 620 (5th Cir. 1977); Hill v. Beto, 390 F.2d 640 (5th Cir. 1968). Moreover, the sentences imposed may run consecutively; neither the Constitution nor § 3568 requires the sentences to be concurrent. United States v. Williams, 487 F.2d 215 (5th Cir. 1973), Cert. denied, 416 U.S. 942, 94 S.Ct. 1949, 40 L.Ed.2d 294 (1974); See Jackson v. Attorney General of the United States, 447 F.2d 747, 749 (5th Cir. 1971). Credit for state imprisonment must be given under § 3568 only if the defendant proves that his state confinement "was exclusively the product of such action by federal law-enforcement officials as to justify treating the State jail as the practical equivalent of a federal one." ⁶ Ballard v. Blackwell, 449 F.2d 868 (5th Cir. 1971). Shillingford made no such showing here.

Shillingford also asserts that the sentence he received is contrary to a Supreme Court decision handed down after his Rule 35 motion was denied, Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978). There is a question whether we should consider the effects of Simpson on Shillingford's sentence since this case presents an appeal from a denial of a Rule 35 motion rather than a direct appeal from a criminal conviction. If a Rule 35 motion were considered to be a collateral attack on Shillingford's conviction, the retroactive application of Simpson might be precluded; some courts, in order to preserve the finality of judgments, have held that some changes in the law are to be applied retroactively only in those cases involving direct appeals from criminal convictions. E. g., Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); See 1 B, J. Moore, Moore's Federal Practice P 0.402(3. 2-5).

We need not decide, however, whether Simpson worked a...