Wayne Gilbert Marvel v. United States

335 F.2d 101

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 5, 1964
• Docket: 21417
• Status: Published

Opinions

PER CURIAM:

Upon his plea of guilty of violating Section 2312, Title 18, U.S.C.A., appellant, Wayne Gilbert Marvel, was sentenced on July 20, 1959, for an indefinite term under the provisions of Section 5010(b), Title 18, U.S.C.A., of the Youth Corrections Act. He appeals in forma pauperis from an order of February 6, 1964, overruling his motion filed on January 30, 1964, under Section 2255, Title 28, U.S.C.A. to vacate and set aside the sentence. An order was entered on December 31, 1963, denying a like motion filed on December 30, 1963. The latter order recited that “this motion as now presented is ‘a second or successive motion for similar relief’ on behalf of Marvel * * * and denied by order made and entered in Criminal Case 2084-E on November 2, 1961.”

Appellant contends that in view of the fact that his imprisonment under Section 2312 cannot exceed five years but may extend to six years under the Youth Corrections Act his sentence should be vacated and corrected¹ 2since he was not advised before sentence was imposed that under the latter Act he could be required to serve as much as six years, and that a failure to so advise him constituted a violation of Rule 11, Federal Rules of Criminal Procedure. This rule forbids a judge to accept a plea “without first determining that the plea is made voluntarily with understanding of the nature of the charge.” ² Appellant’s contention was ruled adverse to him by this Court in Cunningham v. United States, 5 Cir., 256 F.2d 467.³ ***We find nothing in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285, that militates against that ruling.

We have chosen to place our affirmance upon the merits of the motion; accordingly, we pretermit a ruling upon the action of the Court in declining to entertain the second and successive motions for similar relief. The Court did not err in denying the motion; and its action is

Affirmed.

1 . Appellant urges for the first time on appeal that he should be permitted to with- . draw his plea of guilty. In his motions he admits committing the crime for which he was charged.

2 . In Smith v. United States, 116 U.S.App. D.C. 404, 324 F.2d 436, 439, the Court said:

“Obviously this is to assure that the accused be not misled as to the nature of the offense with which he stands charged. There is no requirement that the accused be told what sentence will be imposed.”

3 . To like effect Carter v. United States, 113 U.S.App.D.C. 123, 306 F.2d 283. Contra, Pilkington v. United States, 4 Cir., 315 F.2d 204.