William Eugene Swift v. United States
436 F.2d 390
8th Cir.
1971
Check Treatment

*2 Bеfore VAN OOSTERHOUT BRIGHT, Circuit and NEV- ILLE, Judge. District District timely pro appeal This is a se from an denying petition defendant’s brought under 28 U.S.C. 2255 tо cor- § prison years rect a im- sentence of 10 posed on him in violation 2113(a), robbery, U.S.C. bank penalty fоr maximum $5,000 imprisonment fine or for not years more than 20 No both. manda- prescribed. Prior to the date of pеtition properly 1. The filed with the trial court as it should have been.” styled agree “Petition for an Order Grant Spent cognizable for Time Credit in Pre Sen deemed a motion under § Custody ‍‌‌‌‌​​‌‌​​‌​​​‌​‌‌​​​‌​​‌‌​​‌​​‌​​​​‌​​​​‌​‌​​‌‌‍Bail”, could, for Want of but ac and we need not rule on whether it cording 2) (p. own brief should classified as motion to cor- being illegal “the is now taken if the аn rect sentence under Rule 35 of judgment of the district the Federal court was en Rules of Criminal Procedure. рrovisions tered under the 28 U.S.C. cred- whether such in order to determine continu- had been defendant given by the fact ously for a confined been deter- has no and has merit days, He seeks bail. adversely days. to him this court mined these his sentence prior Two cases decided heretofore. Judge Court, Chief *3 controlling. United court аre he that Stephenson stated (8th Whitfield, 411 the independent no recollection had 1969). States, su- Noorlander v. United surrounding the sentenc- circumstances pra. in ing record that a review the is The below original proceeding not indicate the giv- any been consideration Rehearing for On Petition presentence en to incarceration. pre for credit Administrative by 18 custody is established sentence by de- for a filed 1966 The as аmended. U.S.C. § fendant-appellant court assets that the he requires that to that statute amendment misapprehended the “either overlooked spent presentence confine in all time namely ques- prеsented” issue the to sen credited ment be tion of whether amendment to the 1960 tence, only applicаble to sentences but is unconstitu- 18 3568 is was U.S.C. § imposed At the after its effective date. States, tional. In Noorlander v. United petitioner his sen time received herein (8th 1968), we ‍‌‌‌‌​​‌‌​​‌​​​‌​‌‌​​​‌​​‌‌​​‌​​‌​​​​‌​​​​‌​‌​​‌‌‍said: sec in 1960 to 1963 amendment purpose appeal, “For part: in tion in effect and 3568 was read is us to not reach the for “ * * * Attorney shall General statutory interpretation or constitu- give any person cred such [convicted] tional raised issues defendant. it towards sеrvice of his sentence Where, here, minimum sentence no days spent any custody prior in required imposed is is and the sentence the sentenc sentence maximum, less than have courts court for of bail set for presumed sentencing that court im offense under sentence which was imposing sentence took into cоnsidera- posed where statute pre-sentence tion time served. mandatory imposition of a minimum Statеs, Cir., F.2d Lee v. United 9 400 ” * * * [Emphasis add States, 188; Ashworth v. United ed] Cir., 245; 6 United 391 F.2d Huber v. States, 544; Cir., petitioner Stapf statute under 390 F.2d States, pre- U.S.App.D.C. convicted and sentenced does not mandatory [Emphasis minimum 367 F.2d 326.” added] scribe sentence. petitioner Thus is entitled to admin- not This court is therefore com istrative credit under the above to ex mitted the view thаt since there States, Noorlander v. United F.2d presumption defendant-appel ists a that (8th presentence in lant credit received imposed Where the is carceration, challenge no constitution statutory maximum, length ality Though can be sustained. the 1960 conclusively the sentence itself shows amendment credit prеsentence that credit for presentence custody only incarceration there ex where given. Here, however, not the sen statutory mandatory sen ists a sufficiently tence, ‍‌‌‌‌​​‌‌​​‌​​​‌​‌‌​​​‌​​‌‌​​‌​​‌​​​​‌​​​​‌​‌​​‌‌‍tence was only below the statu sen it would seem that those permit presump type maximum tenced under some other of statute apply tion given not would where such credit was standing challenge credit therefor. Petitioner’s con constitu have tionality tention under such circumstances of the statute. Here complete evidentiary hearing requirеd ant-appellant was sentenced for but one- provided for bank maximum of the half given robbery thus was presentence presumption. Therefore aforementioned urge discrim- that the he cannot constitutionally infirm toas inates or is per- classes If treats a statute him. particular ways, but a

sons different

person treat- most favorable receives the any event, provides in ment the statute constitutionality ‍‌‌‌‌​​‌‌​​‌​​​‌​‌‌​​​‌​​‌‌​​‌​​‌​​​​‌​​​​‌​‌​​‌‌‍he contest cannot might dis- theory else that someone himself has

criminated *4 Defendant-appellant not been has

been. thus so and discriminated (by application of the him the ‍‌‌‌‌​​‌‌​​‌​​​‌​‌‌​​​‌​​‌‌​​‌​​‌​​​​‌​​​​‌​‌​​‌‌‍crеdit) presumption of embody equal protection a denial process.

nor due

Appellant’s

denied. Hanna, Ber- M. McMahon & Thomas Louis, Mo.,

ger, petitioner. St. Counsel, Ordman, Domin- Gen. Arnold Counsel, Manoli, L. Associate ick Gen. Mallet-Prevost, Coun- Asst. Gen. Marcel Cooley Baskir, O. sel, Abigail Mеlvin COMPANY, MID-SOUTH TOWING N.L.R.B., respon- Monzack, Attys., Petitioner, dent. BRIGHT, Circuit and Before GIBSON NATIONAL LABOR RELATIONS McMANUS, Chief and BOARD, Respondent. PER CURIAM. Court of Petitioner-employer Tow- Mid-South Jan. ing Company requests set this court to Labor Re- aside an order of National determined that lations Board which practices in committed unfair labor 8(a) 8(a) (3) (1) violation of §§ during Act Labor Relatiоns the National organize campaign by the Union employees. The Board or- cross-applies еnforcement its reported N.L.R.B. which is at der (1969). Peti- L.R.R.M. 1603 No. engages trans- in the interstate tioner Warehousemen, Helpers Association, Chauffeurs, Local Marine Officers Teamsters, of America. International Brotherhood