The petition for writ of habeas corpus has been filed by Stinton Shifflett alleging that on October 26, 1942, upon a plea of guilty, he was on October 26, 1942, sentenced by the United States District Court for the Western District of Virginia to a term of ten months to be served in the Federal Prison Camp, Millpoint, West Virginia; that following the imposition of this sentence he was, on October 26, 1942, transported to the Harrisonburg jail by the United States Marshal. It appears that while being taken to the Harrisonburg jail he made a statement to the United States Marshal which the court being informed thereof was interpreted by the court as a threat to escape from the Millpoint Prison Camp. He was thereupon, by direction of the court, on October 27, 1942, returned to the court room and re-sentenced by the court to a term of one year and one day.
The respondent, through his counsel, has in fairness to the petitioner admitted that the foregoing is a correct statement of what transpired in this case.
Upon the undisputed facts, this petitioner’s contention is well taken. The change in sentence constituted an increase thereof, and in the instant case service under the ten months sentence having commenced on October 26, 1942, when the petitioner was committed to the local jail to await transportation to the prison camp (18 U.S.C.A. § 709a), the petitioner had begun the service thereof and it is well settled that an increase in punishment is possible only when the service of the sentence has not yet begun. DeMaggio v. Coxe, 2 Cir., 70 F.2d 840.
It appearing that the petitioner’s conditional release date on a ten month sentence being June 21, 1943, the respondent William H. Hiatt, Warden of the United States Penitentiary, Lewisburg, Pennsylvania, is accordingly hereby authorized and directed to consider the said commitment under which he holds the petitioner as being a sentence for a term of ten months.