UNITED STATES v. O’BRIEN, 349 F.2d 375 (4th Cir. 1965)

UNITED STATES of America, Appellee, v. Harold Joseph O’BRIEN, also known as M. Victor Mackey, aka Maurice Victor Mackey, Appellant.

Nos. 9719, 9720.United States Court of Appeals, Fourth Circuit.Argued July 2, 1965.
Decided July 6, 1965.

Philip H. Goodman, Baltimore, Md. (Court-assigned counsel), for appellant.

Roger C. Duncan, Asst. U.S. Atty. (Thomas J. Kenney, U.S. Atty., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, SOBELOFF, Circuit Judge, and BUTZNER, District Judge.

PER CURIAM:

O’Brien was convicted of interstate transportation of forged securities and committed to the custody of the Attorney General for study and recommendations under 18 U.S.C.A. § 4208(b). Upon receipt of the report of the Bureau of Prisons, on September 25, 1962, the District Judge imposed a sentence of ten years. The defendant was not present when this sentence was imposed. Upon the decision in the Behrens case, United States v. Behrens, 375 U.S. 162, 84 S. Ct. 295, 11 L.Ed.2d 224 (1963), the defendant wrote the Judge a letter on October 12, 1964, which the court treated as a motion to vacate sentence under Title 28, section 2255, vacated the sentence, had O’Brien brought before the court, and sentenced him this time to seven and one-half years in prison, dating from the date of the original commitment.

On these appeals the defendant claims that after the original sentence had been vacated, the court had no power to reimpose a sentence on the defendant. The point is frivolous and is directly negated by section 2255.

The defendant was accompanied in court on October 30, 1964, by an associate of his trial counsel, whom O’Brien presented to the court, saying, “if I needed an attorney, he was going to volunteer his service and accept an appointment.”

In response to the court’s offer to appoint him an attorney, the defendant declined.

We find no error in the proceedings under review.

Affirmed.

Page 376

Page 414