James Delbert Smith v. United States

ON PETITION FOR REHEARING

Appellant was convicted of the' interstate transportation of a counterfeiting device on January 10, 1967, in violation of 18 U.S.C. § 2314 ; and of the interstate transportation of a stolen motor vehicle on January 16, 1967, in violation of 18 U.S.C. § 2312 . He was sentenced to ten years on the first charge and five years on the second, to run consecutively, a total of fifteen years.

Appellant attacked these convictions and sentences by motion under 28 U.S.C. § 2255 , which the district court denied. One of appellant’s contentions was that the district court failed to determine whether the sentences should run concurrently or consecutively with the unexpired term of an earlier federal sentence which, appellant alleged, he was then serving.

The relevant facts as they appear in appellant’s various papers, or elsewhere in the record, are as follows.

Appellant alleges that on January 24, 1967, a deputy United States Marshal took him into custody under a warrant issued on October 31, 1966, by the United States Board of Parole for alleged violation of the conditions of appellant’s parole under a federal sentence on which 510 days remained to be served.…

ORDER

Appellant seeks review of the denial of a motion under 28 U.S.C.A. § 2255 . Only one of the issues raised warrants discussion.

Appellant alleges that when he was sentenced for violating 18 U.S.C. §§ 2312 and 2314, he had already been arrested-for a parole violation pursuant to a warrant issued by the United States Board of Parole ( 18 U.S.C. § 4205 ) and exe *1189 cuted in conformity with 18 U.S.C. § 4206 ; and that although the district court had discretion to make his sentence for the 18 U.S.C. §§ 2312 and 2314 offenses concurrent with the unexpired term of the earlier sentence (compare United States v. Quinn, 69 F.Supp. 488 (N.D.Ill.1946), rev’d on other grounds, United States ex rel. Quinn v. Hunter, 162 F.2d 644 (7th Cir. 1947), with Zerbst v. Kidwell, 304 U.S. 359 , 58 S.Ct. 872 , 82 L.Ed. 1399 (1938); Goulette v. Hunter, 73 F.Supp. 717 (D.Kan.1947)), it failed to exercise this discretion.

It is not clear from the record that the district court dealt with the precise issue appellant appears to be raising. We therefore remand to the district court for a further consideration of this issue only. The district court is requested to enter an order within thirty days,…

409 F.2d 1188 James Delbert SMITH, Appellant, v. UNITED STATES of America, Appellee. No. 22816. United States Court of Appeals Ninth Circuit. December 2, 1968. Rehearing Denied April 10, 1969. James Delbert Smith, pro se. Joseph L. Ward, U. S. Atty., Julien G. Sourwine, Asst. U. S. Atty., Reno, Nev., for appellee. Before MERRILL, BROWNING and DUNIWAY, Circuit Judges. ORDER 1 Appellant seeks review of the denial of a motion under 28 U.S.C.A. § 2255 . Only one of the issues raised warrants discussion. 2 Appellant alleges that when he was sentenced for violating 18 U.S.C. §§ 2312 and 2314, he had already been arrested for a parole violation pursuant to a warrant issued by the United States Board of Parole ( 18 U.S.C. § 4205 ) and executed in conformity with 18 U.S.C. § 4206 ; and that although the district court had discretion to make his sentence for the 18 U.S.C. §§ 2312 and 2314 offenses concurrent with the unexpired term of the earlier sentence ( compare United States v. Quinn, 69 F.Supp. 488 (N.D.Ill.1946), rev'd on other grounds, United States ex rel. Quinn v. Hunter, 162 F.2d 644 (7th Cir. 1947), with Zerbst v. Kidwell, 304 U.S. 359 , 58…