United States v. Herbert S. Adair, Jr.

The district court, after revoking a five-year probationary sentence imposed on Count Eighteen of the Indictment, sentenced Herbert S. Adair, Jr., to serve three years in prison and pay a $5,000 fine. In appealing the judgment revoking probation and imposing sentence, Adair contends that his five-year probationary sentence had expired before the government filed its petition to revoke probation and before the district court issued the arrest warrant. Adair bases his contention on the premise that his probationary term had run concurrently with the other concurrent sentences of imprisonment imposed on Counts One, Six, and Nine. We agree and, therefore, reverse the district court because under 18 U.S.C. § 3653 (1976) it lacked power to revoke Adair’s probation.

On January 20, 1976, after Adair had pleaded guilty to four counts of the Indictment, the district court imposed concurrent sentences of three years imprisonment and fines of $5,000 on each of Counts One, Six, and Nine. On Count Eighteen, the district court suspended imposition of sentence and placed Adair on five years probation. The court did not specify whether the probationary term was to run concurrently with or…