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MYLES v. UNITED STATES

March 14, 1977

HERBERT MYLES
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: LUONGO

 LUONGO, J.

 This is a pro se petition by Herbert Myles under 28 U.S.C. § 2255 seeking to vacate a sentence imposed on him for bank robbery in United States v. Herbert Myles, 428 F. Supp. 188. The ground for the petition is that application of the 1973 Parole Board Guidelines to his case have frustrated the sentencing judge's intent. It is apparent from the record papers that there is no merit to the petition and it will be denied without hearing.

 A sentence may be challenged under 28 U.S.C. § 2255 if it was imposed prior to the adoption of the 1973 Parole Guidelines and if the intent of the sentencing judge has been frustrated by the application of the Guidelines. United States v. Salerno, 538 F.2d 1005 (3d Cir.), reh. den., 542 F.2d 628 (3rd Cir. 1976).

 
"Where the motion to vacate sentence can be directed to the sentencing judge, the question whether his sentencing expectations have been frustrated is easily resolved and there should be no need for review of that decision . . . ."
 
538 F.2d at 1009.

 After trial before a jury, Herbert Myles was found guilty of a bank robbery in the course of which a weapon was used and both Myles and a police officer were wounded. Myles appeared before me for sentencing on October 30, 1970. He was then 47 years old and had an extensive prior record of convictions, including several for crimes involving the use of firearms. He had received and served substantial sentences of imprisonment. His record was such that at the time of sentencing Myles' extremely capable counsel said initially:

 
"If Your Honor please, under the totality of circumstances in this case, I think perhaps the best service that I can perform for my client is to say nothing except to ask the Court to be merciful."

 When asked whether there was anything he wanted to say, Myles responded:

 "I agree with what counsel said."

 After a short discussion of Myles' age and his prior record, sentence was imposed with these comments:

 
"THE COURT: . . . Mr. Myles, I have given very careful thought and very careful consideration, and the only mercy, really, that I can show is to impose a sentence under the 4208(a)(2) section, which will give to the Board of Parole the maximum leeway in determining when you have been sufficiently repatriated (sic) [rehabilitated] to be let back into society; but I must under these circumstances impose a substantial sentence, in light of your background and in light of the severity of the crime that you committed here.
 
It is the sentence of this Court, under Count 4 of Criminal No. 69-183, that you, Herbert Myles, be committed to the custody of the Attorney General for a period of 17 years under the provisions of Title 18, Section 4208(a)(2), under which, as you know, you will be eligible for parole at any time that the Board of Parole deems that your rehabilitation merits such consideration.
 
I have given, as I say, Mr. Myles, a great deal of thought to this, and I just wouldn't be doing my duty if I didn't impose a substantial sentence; yet at the same time I think that under this kind of sentence, if you prove to the prison authorities and to the Board of Parole that you are about to mend your ...

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