Albert Edward Deutschmann v. United States

Appellant was charged in a five count indictment with various violations of 21 U.S.C.A. § 174 — illegal trafficking in narcotics. *He pleaded guilty to counts 1 and 3 of the indictment. On June 17, 1957 appellant was sentenced to fifteen years imprisonment on count 1; and consecutive thereto five years probation on count 3; imposition of sentence on count 3 being suspended. Counts 2, 4 and 5 were dismissed. Appellant was committed to the custody of the Marshal to commence sentence and was held in the county jail awaiting transportation to a federal penitentiary.

On the next day, June 18, 1957 appellant was recalled to court, the original sentence as to count 3 vacated as illegal, and a new sentence imposed: fifteen years on each count to run consecutively. The illegality of the original sentence as to count 3 arose because 21 U.S.C.A. § 174 , by incorporation of 26 U.S.C. § 7237 (d), in its 1956 amendment, prohibits the court from suspending imposition of sentence or granting probation.

Appellant prosecutes this appeal charging that the vacating and resentencing were illegal in that such procedure increased his punishment after he had already begun to serve his sentence, thereby…