James Delbert SMITH, Appellant, v. UNITED STATES of America, Appellee, 409 F.2d 1188

ORDER Appellant seeks review of the denial of a motion under 28 U.S.C.A. § 2255. Only one of the issues raised warrants discussion. Appellant alleges that when he was sentenced for violating 18 U.S.C. §§ 2312 and 2314, he had already been arrested-for a parole violation pursuant to a warrant issued by the United States Board of Parole (18 U.S.C. § 4205) and executed in conformity with 18 U.S.C. § 4206; and that although the district court had discretion to make his sentence for the 18 U.S.C. §§ 2312 and 2314 offenses concurrent with the unexpired term of the earlier sentence (compare United States v.

Quinn, 69 F.Supp. 488 (N.D.Ill.1946), rev’d on other grounds, United States ex rel. Quinn v. Hunter, 162 F.2d 644 (7th Cir. 1947), with Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399 (1938); Goulette v. Hunter, 73 F.Supp. 717 (D.Kan.1947)), it failed to exercise this discretion. It is not clear from the record that the district court dealt with the precise issue appellant appears to be raising. We therefore remand to the district court for a further consideration of this issue only.

The district court is requested to enter an order within thirty days, certifying a copy to this court, stating whether, under the facts of this case, it would exercise its discretion to order the sentence imposed under 18 U.S.C. §§ 2312 and 2314 to run concurrently with the unexpired term of the prior sentence if, in fact, the warrant of the United States Board of Parole was executed before appellant was sentenced. A hearing would then be required to determine when the warrant was executed.

If, on the other hand, the district court concludes that it would not make the sentences concurrent, in any event, the order dismissing appellant’s petition will stand affirmed as of the date of the district court’s order.