Orville E. Harris, Appellant, v. United States of America, Appellee, 348 F.2d 912 (5th Cir. 1965)

On August 23, 1963, Appellant entered a plea of guilty to a charge of interstate transportation of a stolen motor vehicle in violation of 18 U.S.C.A. § 2312 and was sentenced to five years, subject to the provisions of 18 U.S.C.A. § 4208(b). On December 13, 1963, after receiving the report of the penitentiary medical staff, the district court affirmed the sentence originally imposed, but subjecting it to 18 U.S.C.A. § 4208(a) (2). Neither Appellant nor his counsel were present at the time this sentence was imposed. After Appellant alleged that the sentencing without his presence or that of his counsel violated his constitutional rights as stated in United States v. Behrens, 375 U.S. 162, 84 S. Ct. 295, 11 L. Ed. 2d 224 (1963) the district court, on April 3, 1964, imposed final sentence in open court with the Appellant and his court-appointed counsel present. This sentence of 49 months allowed Appellant credit for the time spent in prison and the time spent in jail before he entered his plea of guilty. Appellant alleges that the procedure followed denied him due process of law and seeks relief pursuant to 28 U.S.C.A. § 2255.

The district court having corrected Appellant's sentence pursuant to Rule 35, Federal Rules of Criminal Procedure, so that its imposition meets the requirements of United States v. Behrens, supra, denial of relief under 28 U.S.C.A. § 2255 is clearly correct.

The judgment of the district court must be, and is hereby affirmed.