John Thomas Fitts, Appellant, v. United States of America, Appellee, 376 F.2d 516 (10th Cir. 1967)

The appellant, John Thomas Fitts, was on February 7, 1964, convicted by a jury in the District of Kansas of violating the Dyer Act. On March 16, 1964, he was sentenced to serve four years with the sentence to run concurrently with a sentence previously imposed in another district. This court has affirmed the conviction (Fitts v. United States, 335 F.2d 1021, cert. denied 379 U.S. 979, 85 S. Ct. 682, 13 L. Ed. 2d 569). Fitts next filed motion to vacate sentence and/or petition for writ of habeas corpus which was denied and such denial affirmed by this court. (Fitts v. Willingham, 359 F.2d 790).

In the instant proceeding appellant contends that since he was sentenced on March 16, 1964, made election not to commence serving the sentence on March 31, 1964, and being in custody during the interim, he is entitled to credit on his sentence for this two weeks under Rule 38 F.R.Crim.P. It was brought to our attention during argument and is undisputed that appellant has been given credit for this time.

The second contention made by Fitts is that he should be allowed an additional credit on his sentence of two weeks because his first election not to commence serving his sentence, though written and witnessed, was not properly notarized. This point was not briefed and was not presented to the court below so will not be considered here.

Affirmed.