Unpublished Disposition, 930 F.2d 27 (9th Cir. 1991)

No. 89-55288.

United States Court of Appeals, Ninth Circuit.

Before JAMES R. BROWNING, D.W. NELSON and REINHARDT, Circuit Judges

MEMORANDUM^*

Robert Feldman appeals the district court's denial of his petition for writ of habeas corpus. We affirm.

Feldman was convicted after a jury trial of mail fraud, interstate transportation of funds obtained by fraud, use of a false name in furtherance of a scheme to defraud, and racketeering. He was sentenced to a term of imprisonment, five years probation, and restitution. At the sentencing hearing, the district judge pronounced sentence as follows:

"The court with respect to Count 18 and Count 15 orders the defendant committed to the custody of the Attorney General ... for imprisonment for a term of ten years ... Incidentally, with respect to these two counts, that sentence is imposed concurrently."

Government's Excerpt of Record ("GER") at 14 (emphasis added).

Feldman filed a petition for a writ of habeas corpus and/or modification of sentence, claiming the Bureau of Prisons incorrectly computed his sentence as two ten-year terms, to be served concurrently. He contends the judge actually sentenced him to two five-year terms, for a total of ten years, to run concurrently. The district court treated the motion as a motion to vacate or correct a sentence under 28 U.S.C. § 2255, and denied it. Petitioner timely appealed.

Feldman first argues the district court erred in treating his petition for a writ of habeas corpus under 28 U.S.C. § 2241 as a motion to vacate sentence under 28 U.S.C. § 2255. We need not decide this issue as under either procedure Feldman's contentions are meritless.

The sentence unambiguously imposed an actual term of ten years imprisonment on each count, to run concurrently. It would make no sense for the judge to have stated "incidentally, ... that sentence is imposed concurrently" if the term of imprisonment were only five years on each count, as that would give a total of five years imprisonment. The court would then have no reason to have specified ten years. Moreover, Feldman assumes the ten years would have been divided evenly between the two counts to give a total ten-year sentence, but there is no reason to think this would be so. The only logical construction of the judge's sentence is that given to it by the Bureau of Prisons and the district court. We are not convinced otherwise by plaintiff's "expert." We find no ambiguity and, consequently, no need to reach Feldman's double jeopardy argument.

AFFIRMED.