United States v. Richard J. McDonald

Appellant McDonald initiated these proceedings with his motion to vacate a sentence imposed by the district court following the revocation of appellant’s probation. The sentence sought to be vacated was imposed on October 8, 1976 following the vacation of a sentence previously imposed on November 6, 1972 under which appellant was granted probation. Appellant asserts that jurisdiction to consider his motion rests on 28 U.S.C. § 2255 or that the motion should be deemed to have been made pursuant to Federal Rule of Criminal Procedure 35. Because jurisdiction exists in any event, we need not choose between these alternatives.

Appellant’s motion to vacate was denied by the district court on October 31, 1978 and it is from this action that this appeal was taken. We reverse and remand to the district court to grant the relief sought and to reimpose the sentence of November 6, 1972 with credit to be given against the sentence for such time as has been served pursuant to the October 8, 1976 sentence as well as that served pursuant to the November 6, 1972 sentence.

I

FACTS

Appellant in March 1972 was charged with various narcotics conspiracy and substantive offenses. A plea bargain…