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ALLEN v. UNITED STATES

November 4, 1966

James ALLEN, a/k/a Frank N. Hoffman, Petitioner,
v.
UNITED STATES of America, Respondent



The opinion of the court was delivered by: NEALON

 NEALON, District Judge.

 Petitioner, James Allen, also known as Frank N. Hoffman, an inmate at the United States Penitentiary, Lewisburg, Pennsylvania, has filed a letter with this Court requesting a correction or modification of his sentence so as to gain credit for the time which he spent in custody for want of bail prior to the date of sentencing. He alleges that the total time so spent in custody was 128 days, from February 11, 1965, to June 17, 1965, the date on which he was sentenced. Petitioner's letter will be treated as a motion pursuant to 28 U.S.C. § 2255 to correct the sentence imposed upon him.

 On March 19, 1965, the petitioner pleaded not guilty to a one-count indictment charging him with transporting a stolen motor vehicle in interstate commerce knowing the same to have been stolen in violation of Title 18 U.S.C. § 2312, the popular name of this Act being the "Dyer Act." He went to trial and was found guilty by a jury on June 9, 1965. On June 17, 1965, he was sentenced to five years' imprisonment, which was the maximum term of imprisonment allowable under 18 U.S.C. § 2312. *fn1" Petitioner relates that the reason he was held in custody for 128 days following his arrest, preceding the day of his sentence, was because of the fact that he was unable to post the required $5,000.00 bail. *fn2"

 
"Whoever transports in interstate * * * commerce a motor vehicle * * * knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both."

 Therefore, under the law as it then stood, no credit could be given for time spent in custody prior to the date of sentence, as Congress made no provision for defendants who were sentenced under statutes which did not provide for a minimum mandatory term of imprisonment. However, § 3568 has been amended by Section 4 of the "Bail Reform Act of 1966," which was enacted into law on June 22, 1966. This Amendment provides:

 
"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. As used in this section, the term 'offense' means any criminal offense, other than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress."

 Section 6 of that Amendment provides that the Act shall take effect ninety days after the date on which it is enacted and that the provision of Section 4 shall be applicable only to sentences imposed on or after the effective date. Therefore, it is clear that the Amendment is inapplicable to the case at bar.

 In Stapf v. United States, 125 U.S. App. D.C. 100, 367 F.2d 326 (D.C.Cir. 1966), a recent case decided on August 4, 1966, it was held that, once the basic sentence was determined, the Court had the duty to credit the defendant's sentence with any presentence custody incurred for lack of bail. The opinion noted that the provision for automatic credit where a mandatory minimum term of imprisonment was prescribed was added to § 3568 by Congress in 1960. According to the Court, "Congress made no provision in this amendment for defendants sentenced for offenses not carrying minimum terms of imprisonment * * * because it assumed that a credit for presentence custody for want of bail would continue to be provided by sentencing courts as a matter of course." The crux of its decision was that the defendants in that case were sentenced to the maximum allowable term of imprisonment under the statute, and therefore the length of sentence itself conclusively showed that no credit was given for presentence custody. In essence, that Court found that since it was manifest that no credit had been given for presentence custody, such action on the part of the trial court constituted an irrational and arbitrary classification. Specifically, the Court concluded that "* * * statutory and constitutional considerations compel us *fn4" to hold that it was and is the duty of the sentencing court to provide credit for presentence custody for want of bail to all defendants not granted credit administratively by virtue of the provisions of § 3568." In this regard, the legislative history of the 1960 Amendment as revealed in H.R.Rep. No. 2058, 86th Cong.2d Sess. (1960), U.S.Code Cong. & Adm. News, p. 3289, states:

 
"The primary purpose of the bill is to eliminate the disparity in sentences under certain statutes requiring mandatory terms of imprisonment. Under existing law a person charged with violating a statute requiring the imposition of a minimum mandatory sentence may not be credited with the time spent in custody for want of bail while awaiting trial. The result is that a sentencing court lacks authority to differentiate between the offender who has been free on bail before trial and one who has been in custody, because it was required to impose the same minimum mandatory sentence as to each.
 
"Application of the proviso contained in the bill, where such credit is due, would preserve the existing statutory provision that service of sentence shall commence after sentence is imposed and commitment occurs thereunder."

 In enacting the proviso to § 3568, Congress had seen fit to grant presentence credit to those in custody for want of bail where the offense involved required the imposition of a minimum mandatory sentence. In such cases the defendant was definitely slated for a prison term, notwithstanding the presence or absence of a prior criminal record or an evaluation of his character and rehabilitative potential. Apparently, Congress recognized this and provided accordingly that the minimum term commenced to run immediately upon detention where bail was not posted. There is nothing in the statute to indicate that Congress assumed that in all other instances the Court would reduce the sentence by the amount of time spent in presentence custody, and such a construction should not be lightly inferred. Indeed, the legislative history of the 1960 Amendment, hereinabove referred to, explicitly notes that application of the Amendment would preserve the existing statutory provision that service of sentence shall commence after sentence is imposed and commitment occurs thereunder.

 Moreover, the 1960 Amendment should not be construed to compel the conclusion that the over-all rule concerning the effective date of sentence is arbitrary, irrational and illegal. It may be that there is some question concerning the rationality of the Amendment, but this does not negate the clear language of § 3568 relative to the effective date of sentence in all other cases. In this regard, a pertinent comment is contained in the September, 1966, issue of Federal Probation, in an article authored by ...


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