Robert W. Lewis, Benton, Ill., for plaintiff-appellant.
Henry A. Schwarz, U.S. Atty. and Timothy J. Gifford, Asst. U.S. Atty., East St. Louis, Ill., for defendant-appellee.
Before CASTLE, Senior Circuit Judge, and TONE and WOOD, Circuit Judges.
CASTLE, Senior Circuit Judge.
Plaintiff Eddie David Cox, a prisoner at the United States Penitentiary at Marion, Illinois, seeks credit against his federal sentence for time served on a state conviction. His claim is based on the fact that his imprisonment on the federal sentence was interrupted to permit him to complete a state sentence which was reinstated after his collateral attack on the state conviction failed. He raises three arguments in support of his claim: first, that interruption of his federal sentence was prohibited by 18 U.S.C. § 3568; second, that the interrupted sentence constitutes punishment by installments as prohibited by common law; and third, that the Attorney General was without authority to release plaintiff from federal custody for the purpose of completing his state sentence. The district court denied plaintiff's petition for a writ of mandamus ordering the warden at Marion to grant the claimed credit. We affirm.
Cox was serving a five-year sentence on a Kansas conviction of felonious possession of a handgun when he was released on bond on February 26, 1970, pending the outcome of a collateral attack on the conviction. On May 9, 1970, he was arrested by federal authorities and charged with bank robbery in violation of 18 U.S.C. § 2113. Plaintiff was convicted on the federal charge and sentenced by the trial judge to 20 years imprisonment "to be served consecutive to any other sentence." He was transported to the United States Penitentiary at Leavenworth, Kansas, on October 19, 1970, to begin serving the federal sentence. His collateral attack on the state conviction was denied, and he was returned to state custody on November 20, 1970, to serve the remainder of his state sentence. After completion of the state sentence, he was transported on September 1, 1972, to the penitentiary at Marion to serve the remainder of his federal sentence. Plaintiff seeks a holding that the running of time on his federal sentence was not interrupted by his transfer to Kansas authorities for completion of his state sentence.
First, plaintiff asserts that interruption of his federal sentence is prohibited by 18 U.S.C. § 3568. We disagree. Section 3568 states:
The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. . . .
If any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention.
No sentence shall prescribe any other method of computing the term.
After a review of the legislative history of section 3568, the District of Columbia Circuit in United States v. Liddy, 166 U.S.App.D.C. 289, 510 F.2d 669, 674 (1974), cert. denied,
Second, plaintiff asserts that interruption of his federal sentence violates the common law rule prohibiting imprisonment by installments. See, e. g., White v. Pearlman,
Finally, plaintiff asserts that the Attorney General lacked authority to release plaintiff from federal custody for the purpose of completing his state sentence. Under 18 U.S.C. § 4085, the Attorney General is granted express statutory authority to transfer a federal prisoner convicted of a felony in state court to that state's penal institutions. As we have already noted, release of the plaintiff to Kansas authorities was necessary to effectuate the trial judge's order that the federal sentence be consecutive to any other sentence. We believe a release for that purpose was proper under section 4085. The cases relied on by the plaintiff involve either failure by the ministerial officer charged with custody of the prisoner to carry out the sentence of the court as directed, Smith v. Swope,
For the reasons stated above, the order of the district court is affirmed.
This document cites
- U.S. Code - Title 18: Crimes and Criminal Procedure - 18 USC 2113 - Sec. 2113. Bank robbery and incidental crimes
- U.S. Code - Title 18: Crimes and Criminal Procedure - [Secs. 4084, 4085. Repealed. Pub. L. 98-473, title II, Sec. 218(a)(3), Oct. 12, 1984, 98 Stat. 2027]
- U.S. Court of Appeals for the Seventh Circuit - Robert Lee Mckee, Plaintiff-Appellant, v. United States of America, Defendant-Appellee., 289 F.2d 557 (7th Cir. 1961)
- U.S. Court of Appeals for the Fifth Circuit - Jack Shields, Appellant, v. Dr. George J. Beto, Director, Texas Department of Corrections, Appellee., 370 F.2d 1003 (5th Cir. 1967)
- U.S. Court of Appeals for the Seventh Circuit - Frank A. Anglin, Jr., Petitioner-Appellant, v. Steven Johnston, Parole Executive, United States Board of Parole, Et Al., Respondents-Appellees., 504 F.2d 1165 (7th Cir. 1975)
See other documents that cite the same legislation