Morris Wilbur Lee v. United States

400 F.2d 185 Morris Wilbur LEE, Appellant, v. UNITED STATES of America, Appellee. No. 22391. United States Court of Appeals Ninth Circuit. August 14, 1968. 1 Morris Wilbur Lee, pro se. 2 Wm. M. Byrne, Jr., U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Chief, Criminal Division, Michael D. Nasatir, Asst. U. S. Atty., Los Angeles, Cal., for appellee. 3 Before CHAMBERS and ELY, Circuit Judges, and THOMPSON, * District Judge. THOMPSON, District Judge: 4 Lee appeals from an order of the United States District Court for the Central District of Californa denying his motion for correction of sentence pursuant to Rule 35, Federal Rules of Criminal Procedure, and 18 U.S.C. § 3568 . On May 22, 1962, Appellant had been sentenced to a term of five years on each of two counts charging a violation of 18 U.S.C. § 500 , which carries a maximum prison penalty of five years, and the sentences were ordered to run concurrently. Because of a consecutive sentence imposed by another court, the term for which Lee is presently incarcerated is actually ten years under which he is receiving good time credits of ten days per month. 18 U.S.C. § 4161 . 5 Lee's motion for correction of sentence…

Lee appeals from an order of the United States District Court for the Central District of Calif orna denying his motion for correction of sentence pursuant to Rule 35, Federal Rules of Criminal Procedure, and 18 U.S.C. § 3568 . On May 22, 1962, Appellant had been sentenced to a term of five years on each of two counts charging a violation of 18 U.S.C. § 500 , which carries a maximum prison penalty of five years, and the sentences were ordered to run concurrently. Because of a consecutive sentence imposed by another court, the term for which Lee is presently incarcerated is actually ten years under which he is receiving good time credits of ten days per month. 18 U.S.C. § 4161 .

Lee’s motion for correction of sentence asserted that he was entitled to credit for sixty-eight days served for inability to make bail set after arrest and before sentence, credit to which he was entitled because he had been sentenced to the maximum term. Stapf v. United States, 1966, 125 U.S.App.D.C. 100 , 367 F.2d 326 ; Dunn v. United States, 4th Cir. 1967, 376 F.2d 191 ; Bryans v. Blackwell, 5th Cir. 1967, 387 F.2d 764 ; United States v. Smith, 7th Cir. 1967, 379 F.2d 628 . Perhaps, incongruously, and…

(dissenting) :

In my view, since Lee could have been sentenced to a total of ten years but was sentenced to five, he did not receive a maximum sentence. Thus, I would deny relief.

I agree with the majority that habeas corpus is the correct remedy and not Rule 35 of Federal Rules of Criminal Procedure.