United States v. James Delmore Deaton

Fifth Circuit

United States v. James Delmore Deaton

477 F.2d 65, 1973 U.S. App. LEXIS 10585

CourtCourt of Appeals for the Fifth Circuit

DecidedApril 11, 1973

Docket72-3666

StatusPublished

Cited by6 cases

This text of 477 F.2d 65 (United States v. James Delmore Deaton) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. James Delmore Deaton, 477 F.2d 65, 1973 U.S. App. LEXIS 10585 (5th Cir. 1973).

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Opinion

PER CURIAM:

On direct appeal, this court affirmed Deaton's conviction for violation of 18 U.S.C. § 1072, but finding separate consecutive sentences on each count of the indictment to be multiplicitous, we remanded for resentencing. United States v. Deaton, 468 F.2d 541 (5th Cir. 1972). The appellant has now been resentenced to a single term of three years.

Deaton contends that the imposition of this sentence was improper because others involved in the same offense received lesser sentences. We reject this contention since the sentence is within the statutory limits and Deaton has demonstrated no abuse of judicial discretion which would entitle him to relief. See, e. g., United States v. Johnson, 476 F.2d 1257, 1258 (5th Cir. 1973); United States v. Bristol, 473 F.2d 439, 444-445 (5th Cir. 1973); Rodriguez v. United States, 394 F.2d 825 (5th Cir. 1968).

Deaton also asserts that the new sentence is in derogation of his constitutional rights because, had he been properly sentenced initially, he would have been eligible for parole consideration prior to the date of resentencing; whereas the initial improper sentence has precluded his application for such *66 release up to now. The mere fact that at the time of resentencing the appellant had been in federal custody for more than one-third of maximum sentence possible on remand does not entitle him to immediate release. Thompkins v. U. S. Board of Parole, 427 F.2d 223 (5th Cir. 1970). Nor does the fact that he was erroneously barred from earlier consideration for parole entitle him, as a matter of law, to release before he has served the full sentence properly imposed on resentencing. Deaton’s eligibility for parole prior to the completion of the sentence now imposed must be determined by the Board of Parole under 18 U.S.C. § 4201-4203.

The judgment of the district court upon remand is affirmed.

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PER CURIAM:

On direct appeal, this court affirmed Deaton's conviction for violation of 18 U.S.C. § 1072, but finding separate consecutive sentences on each count of the indictment to be multiplicitous, we remanded for resentencing. United States v. Deaton, 468 F.2d 541 (5th Cir. 1972). The appellant has now been resentenced to a single term of three years.

Deaton contends that the imposition of this sentence was improper because others involved in the same offense received lesser sentences. We reject this contention since the sentence is within the statutory limits and Deaton has demonstrated no abuse of judicial discretion which would entitle him to relief. See, e. g., United States v. Johnson, 476 F.2d 1257, 1258 (5th Cir. 1973); United States v. Bristol, 473 F.2d 439, 444-445 (5th Cir. 1973); Rodriguez v. United States, 394 F.2d 825 (5th Cir. 1968).

Deaton also asserts that the new sentence is in derogation of his constitutional rights because, had he been properly sentenced initially, he would have been eligible for parole consideration prior to the date of resentencing; whereas the initial improper sentence has precluded his application for such *66 release up to now. The mere fact that at the time of resentencing the appellant had been in federal custody for more than one-third of maximum sentence possible on remand does not entitle him to immediate release. Thompkins v. U. S. Board of Parole, 427 F.2d 223 (5th Cir. 1970). Nor does the fact that he was erroneously barred from earlier consideration for parole entitle him, as a matter of law, to release before he has served the full sentence properly imposed on resentencing. Deaton’s eligibility for parole prior to the completion of the sentence now imposed must be determined by the Board of Parole under 18 U.S.C. § 4201-4203.

The judgment of the district court upon remand is affirmed.

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477 F.2d 65, 1973 U.S. App. LEXIS 10585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-james-delmore-deaton-ca5-1973.

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