George E. Myers v. United States of America

446 F.2d 232 George E. MYERS, Petitioner-Appellant, v. UNITED STATES of America et al., Respondent-Appellee. No. 25785. United States Court of Appeals, Ninth Circuit. July 28, 1971. David J. Marchant (argued), of Graham & James, San Francisco, Cal., for appellant. Michael L. Morehouse, Asst. U.S. Atty. (argued), Sidney I. Lezak, U.S. Atty., Portland, Or., for appellee. Before BARNES, BROWNING and TRASK, Circuit Judges. TRASK, Circuit Judge: 1 Appellant questions the lawfulness of the district court's refusal to allow credit to him against his sentence for time spent in jail prior to sentence for lack of bail. 2 We accord to appellant's contentions a liberal construction on the procedural questions involved, and thus reach the merits of his substantive claim. Jurisdiction is conceded under 28 U.S.C. 2255. 3 Appellant, Myers, was indicted for bank robbery under 18 U.S.C. 2113(a) which carries a maximum sentence of twenty years. That indictment was dismissed, however, and Myers pled guilty to a charge of violating 18 U.S.C. 2113(b) which carries a ten year maximum sentence. Myers withdrew his guilty plea, the original indictment was refiled, and Myers was convicted by the jury of…

Appellant questions the lawfulness of the district court’s refusal to allow credit to him against his sentence for time spent in jail prior to sentence for lack of bail.

We accord to appellant’s contentions a liberal construction on the procedural questions involved, and thus reach the merits of his substantive claim. Jurisdiction is conceded under 28 U.S.C. § 2255 .

Appellant, Myers, was indicted for bank robbery under 18 U.S.C. § 2113 (a) which carries a maximum sentence of twenty years. That indictment was dismissed, however, and Myers pled guilty to a charge of violating 18 U.S.C. § 2113 (b) which carries a ten year maximum sentence. Myers withdrew his guilty plea, the original indictment was refiled,' and Myers was convicted by the jury of the original charge. A sentence of ten years was imposed. At the time of sentencing, the trial court stated, in essence, that he was going to give Myers the same sentence that he had determined to give upon the plea to the lesser offense — § 2113(b). Approximately four years after sentence was imposed, Myers filed a motion under Fed.R.Crim. P. 35 to require the Attorney General to-allow credit for the period he was in custody prior to…

(dissenting):

The rationale of Dunn and Stapf, adopted by the majority, is that since during the 1960-1966 period the statute provided that persons sentenced to a minimum mandatory term must be given credit for time spent in custody before sentence through inability to post bail, the due process clause of the Fifth Amendment requires that persons sentenced during this period to other than minimum mandatory terms must also be given such credit because there is no rational basis for a difference in treatment in this respect between these two classes of persons. See Stapf v. United States, 367 F.2d at 328-329; Dunn v. United States, 376 F.2d at 193-194.

It is conceded, therefore, that appellant had an absolute constitutional right to credit for the 284 days served before sentence was imposed. The only question is whether he received it.

No one suggests that the Attorney General credited appellant with this time. It is also clear that the sentencing judge did not.

Before the judge imposed sentence on the section 2113(a) charge, he told appellant and his co-defendant that they were going to receive “exactly the same sentence” he had earlier decided to give them before they withdrew…