Robert J. Marshall v. United States

576 F.2d 160 Robert J. MARSHALL, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant. No. 76-2032. United States Court of Appeals, Ninth Circuit. March 1, 1978. Rehearing and Rehearing En Banc Denied June 5, 1978. 1 Lawrence J. Semenza (argued), Las Vegas, Nev., for respondent-appellant. 2 William P. Daley (argued), Oakland, Cal., for petitioner-appellee. 3 Appeal from the United States District Court for the District of Nevada. 4 Before HUFSTEDLER and KILKENNY, Circuit Judges, and GRANT, District Judge. * 5 GRANT, District Judge. 6 The appellee to this proceeding, Robert Marshall, is a federal prisoner incarcerated at the McNeil Federal Penitentiary in Steilacoom, Washington. He has challenged his sentencing, pursuant to the Dangerous Special Offenders Sentencing Statute, 18 U.S.C. § 3575 , et seq., on both statutory and constitutional grounds. On February 5, 1976, the district court granted his motion to vacate the sentence and ordered that he be resentenced, exclusive of the Dangerous Special Offenders Statute from which judgment the government instituted this appeal. Jurisdiction here is properly based upon 28 U.S.C. § 1291 . 7 On January 14, 1974,…

The appellee to this proceeding, Robert Marshall, is a federal prisoner incarcerated at the McNeil Federal Penitentiary in Steilacoom, Washington. He has challenged his sentencing, pursuant to the Dangerous Special Offenders Sentencing Statute, 18 U.S.C. § 3575 , et seq., on both statutory and constitutional grounds. On February 5, 1976, the district court granted his motion to vacate the sentence and ordered that he be resentenced, exclusive of the Dangerous Special Offenders Statute from which judgment the government instituted this appeal. Jurisdiction here is properly based upon 28 U.S.C. § 1291 .

On January 14, 1974, Marshall was convicted on four counts of unregistered possession and illegal transfer of two fragmentation hand grenades, in violation of 26 U.S.C. § 5861 . Prior to the trial, the government filed notice with the court, and Marshall, that it intended to proceed against the defendant pursuant to the Dangerous Special Offenders Statute and, on March 29, 1974, the district court held a hearing on the question of sentencing. At the conclusion of the evidence, the court ruled that Marshall was a “dangerous offender”. Marshall was then sentenced to twenty years on…

dissenting:

The majority opinion holds that Marshall’s attack upon the validity of his sentence, based upon the Government’s failure to comply with the procedural requirements of 18 U.S.C. § 3575 , is not cognizable in a Section 2255 petition. The holding is inconsistent with the language of Section 2255, and the rationale is based upon a misreading of Davis v. United States (1974) 417 U.S. 333 , 94 S.Ct. 229 , 41 L.Ed.2d 109 and Hill v. United States (1962) 368 U.S. 424 , 82 S.Ct. 468 , 7 L.Ed.2d 447 . Even if there were doubt about the applicability of Section 2255, the refusal of the majority to treat the Section 2255 petition as a Rule 35 motion is an inexplicable departure from the established rule that prisoner petitions are to be decided on the merits, despite mislabeling of the motion or petition.

The district court vacated Marshall’s sentence on the sole ground that the Government’s failure to comply with the procedural requisites of 18 U.S.C. § 3575 , et seq., rendered his sentence illegal. The Government conceded that petitioner’s sentence was infirm under United States v. Kelly (8th Cir. 1975) 519 F.2d 251 , but the Government argued below, and here argues, that…