Mirenda

ORDER DENYING MOTION TO VACATE AND SET ASIDE SENTENCE PURSUANT TO 28 U.S.C. § 2255

The Petitioner, Phillip Mirenda, incarcerated in the Federal Prison Camp, Stafford, Arizona, was sentenced by this Court on October 19, 1970, on his plea of guilty to one count of concealing narcotics ( 21 U.S.C. § 174 ). At the time of sentence, 5 additional counts in the indictment were dismissed.

The sentence imposed was for 5 years (the mandatory minimum), to be served concurrently with a 5-year sentence imposed in the United States District Court, District of Arizona, on August 31, 1970, for smuggling marihuana.

Mr. Mirenda now brings this Motion asking the Court to vacate the sentence and “ameliorate” it in order to make him eligible for parole under 18 U.S.C. § 4202 . He also invokes Rule 35, Federal Rules of Criminal Procedure.

Petitioner bases his request on recent cases from the Ninth Circuit (and other Circuits) which have extended the more liberal sentencing provisions of the new Act to those who had been prosecuted under the old Act, but sentenced after May 1, 1971. See United States v. Stephens, 449 F.2d 103 (9th Cir. 1971); United States v. Pregerson, 448 F.2d 404 (9th Cir. 1971).…