United States of America, Plaintiff-appellee, v. David M. Pilkington, Defendant-appellant, 954 F.2d 725 (6th Cir. 1992)

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US Court of Appeals for the Sixth Circuit - 954 F.2d 725 (6th Cir. 1992) Feb. 6, 1992

Before MERRITT, Chief Judge, and NATHANIEL R. JONES and BATCHELDER, Circuit Judges.


David M. Pilkington, a federal prisoner, appeals pro se from the district court order denying his motion for correction of sentence filed under former Fed. R. Crim. P. 35(a). This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Pilkington was serving a life sentence in Ohio in 1978 when he escaped and committed the federal offenses which are the subject of this motion, kidnapping and interstate transportation of a stolen motor vehicle. He was tried by a jury following his apprehension and found guilty of both charges. Before sentencing, he also appeared in an Ohio state court and entered a guilty plea to a charge of escape, for which he received a sentence of seven to twenty years. He was then sentenced in federal court to life plus two years, concurrent, with the direction that this sentence be served before the new state sentence. However, due to Ohio parole regulations, Pilkington became eligible for parole on both his state sentences on October 23, 1990. He was delivered to the United States Penitentiary at Leavenworth, Kansas, where he was informed that his federal sentence would commence as of October 23, 1990. He filed this motion arguing that his federal sentence should have commenced when it was imposed, on May 29, 1979. The magistrate judge recommended that the motion be denied, and the district court adopted this recommendation over Pilkington's objections.

Upon review, it is concluded that this motion was properly denied. Pilkington's sentence properly commenced upon his reception at the penitentiary for service of the sentence. 18 U.S.C. § 3568 (repealed 1987) (applicable to offenses committed before the date of repeal); Vaughn v. United States, 548 F.2d 631, 633 (6th Cir. 1977) (per curiam). Accordingly, the district court's order is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.