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Herrmann v. Meese

argued: May 31, 1988.

WILLIAM HERRMANN, APPELLANT
v.
EDWIN MEESE, III, ATTORNEY GENERAL, ROBERT HONSTED, WARDEN



Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil No. 87-1235.

Seitz, Sloviter, and Hutchinson, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

SEITZ, Circuit Judge.

William Herrmann appeals the district court's order denying his petition for a writ of habeas corpus. 28 U.S.C. § 2241 (1982). We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253 (1982).

Herrmann was convicted in England of "possessing counterfeit [United States] currency with intent to pass or tender them as genuine or to deliver them to another with intent that he or another should pass or tender them as genuine." He was sentenced to eight years imprisonment. The United States subsequently requested the transfer of Herrmann to the United States pursuant to the European Convention on the Transfer of Sentenced Persons ("the Treaty") and to 18 U.S.C. §§ 4100-4115 (1982) ("the Transfer Statute") (relating to transfer of prisoners to or from foreign countries). Herrmann was transferred and is incarcerated at the federal prison at Loretto, Pennsylvania. He has served three years in connection with this offense.

Herrmann asserted in his habeas corpus complaint that his continued incarceration was in violation of the applicable provisions of the Treaty,*fn1 signed in 1983, which states in pertinent part:

ARTICLE 9

1. The competent authorities of the administering state shall: [a] continue the enforcement of the sentence. . .

ARTICLE 10

1. In the case of continued enforcement, the administering States shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.

2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, . . . that State may . . . adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing States, nor exceed the maximum prescribed by the law of the administering State.

(emphasis added).

Herrmann argues that the eight-year sentence he received is sharply in contrast with the maximum sentence he could have received in the United States for the same type of criminal activity. He contends that the United States offense most similar to the one for which he was convicted in England is 18 U.S.C. § 480 (1982) (relating to possession of foreign counterfeit currency; one-year maximum sentence) rather than 18 U.S.C. § 472 (1982) (relating to possession of counterfeit United States currency; fifteen-year maximum sentence) as the government contends. Herrmann asserts that, in consequence, his sentence should have been adapted to a one-year term under Article 10.2 of the Treaty so as not to be incompatible with the law of the administering state. However, the language of Treaty Article 10.2, in contrast with the ...


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