William Ernest Jenkins v. United States

Fifth Circuit

William Ernest Jenkins v. United States

293 F.2d 96, 1961 U.S. App. LEXIS 3726

CourtCourt of Appeals for the Fifth Circuit

DecidedAugust 16, 1961

Docket18783_1

StatusPublished

Cited by4 cases

This text of 293 F.2d 96 (William Ernest Jenkins v. United States) 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

William Ernest Jenkins v. United States, 293 F.2d 96, 1961 U.S. App. LEXIS 3726 (5th Cir. 1961).

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PER CURIAM.

Appellee Jenkins was convicted by a jury of a criminal offense committed while he was serving a sentence under a previous conviction, in the federal penitentiary in Atlanta. March 22, 1956, he was sentenced to serve one year and one day after the expiration of the sentence he was already serving, this being substantially the minimum allowable sentence.¹ More than four years later he moved in the same court, under 28 U.S.C. § 2255 and also under Rule 32, F.R.Cr.P., 18 U.S.C., for an order correcting the judgment imposing the consecutive sentence.

[97]*97The trial judge who had imposed the consecutive sentence heard the motion upon a portion of the record made at the time the appellee was sentenced on March 22, 1956. The § 2255 proceeding was correctly decided by the court below, which denied this motion on the ground that the facts adduced by the appellant failed to show that the sentence was improperly imposed. The action of the court in connection with the § 2255 proceeding is correct, also, because the appellant failed to show that he was then in custody under the sentence imposed March 22, 1956. Heflin v. United States, 1959, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed. 2d 407.

The court below also denied appellant’s motion under Rule 32. This ruling was made prior to the decisions of the Supreme Court in Green v. United States, 1961, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670, and Van Hook v. United States, 1961, 365 U.S. 609, 81 S.Ct. 823, 5 L.Ed.2d 821. We think that these decisions of the Supreme Court are controlling and require a reversal of the judgment of the court below.

The judgment appealed from is, therefore, reversed and the case remanded for re-sentencing in compliance with Rule 32 of the Federal Rules of Criminal Procedure.

Reversed and remanded.

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PER CURIAM.

Appellee Jenkins was convicted by a jury of a criminal offense committed while he was serving a sentence under a previous conviction, in the federal penitentiary in Atlanta. March 22, 1956, he was sentenced to serve one year and one day after the expiration of the sentence he was already serving, this being substantially the minimum allowable sentence.¹ More than four years later he moved in the same court, under 28 U.S.C. § 2255 and also under Rule 32, F.R.Cr.P., 18 U.S.C., for an order correcting the judgment imposing the consecutive sentence.

[97]*97The trial judge who had imposed the consecutive sentence heard the motion upon a portion of the record made at the time the appellee was sentenced on March 22, 1956. The § 2255 proceeding was correctly decided by the court below, which denied this motion on the ground that the facts adduced by the appellant failed to show that the sentence was improperly imposed. The action of the court in connection with the § 2255 proceeding is correct, also, because the appellant failed to show that he was then in custody under the sentence imposed March 22, 1956. Heflin v. United States, 1959, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed. 2d 407.

The court below also denied appellant’s motion under Rule 32. This ruling was made prior to the decisions of the Supreme Court in Green v. United States, 1961, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670, and Van Hook v. United States, 1961, 365 U.S. 609, 81 S.Ct. 823, 5 L.Ed.2d 821. We think that these decisions of the Supreme Court are controlling and require a reversal of the judgment of the court below.

The judgment appealed from is, therefore, reversed and the case remanded for re-sentencing in compliance with Rule 32 of the Federal Rules of Criminal Procedure.

Reversed and remanded.

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293 F.2d 96, 1961 U.S. App. LEXIS 3726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/william-ernest-jenkins-v-united-states-ca5-1961.

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