George E. MYERS, Petitioner-Appellant, v. UNITED STATES of America et al., Respondent-Appellee, 446 F.2d 232

TRASK, Circuit Judge: Appellant questions the lawfulness of the district court’s refusal to allow credit to him against his sentence for time spent in jail prior to sentence for lack of bail. We accord to appellant’s contentions a liberal construction on the procedural questions involved, and thus reach the merits of his substantive claim. Jurisdiction is conceded under 28 U.S.C. § 2255. Appellant, Myers, was indicted for bank robbery under 18 U.S.C. § 2113(

a) which carries a maximum sentence of twenty years. That indictment was dismissed, however, and Myers pled guilty to a charge of violating 18 U.S.C. § 2113(

b) which carries a ten year maximum sentence. Myers withdrew his guilty plea, the original indictment was refiled,' and Myers was convicted by the jury of the original charge. A sentence of ten years was imposed. At the time of sentencing, the trial court stated, in essence, that he was going to give Myers the same sentence that he had determined to give upon the plea to the lesser offense — § 2113(b). Approximately four years after sentence was imposed, Myers filed a motion under Fed.R.Crim.

P. 35 to require the Attorney General to-allow credit for the period he was in custody prior to sentencing for want of bail, a period of 284 days. The substantive issue is, therefore, whether appellant is entitled to credit for the period he was in custody prior to sentencing because he could not furnish bail. The district court held that he was not. We agree. Appellant was sentenced on January 15, 1965. The statute under which he was sentenced provided for a maximum sentence of twenty years. It did not provide for any mandatory minimum sentence.

Under the law as it existed at that time one who received a sentence under a statute providing for a mandatory minimum sentence, automatically received credit toward service of his sentence for any pre-sentence custody for want of bail. A convicted person who was sentenced under a statute providing for a maximum sentence but no minimum mandatory sentence (as in the present ease) did not receive such automatic credit. The reason apparently was that the court would as a matter of course allow for custodial pre-sentence time.

When it developed that all courts did not grant credit for time served prior to sentence in the maximum sentence cases, the statute was changed to eliminate the disparity. In the meantime, the courts, recognizing the arbitrary and unreasonable discrimination between those who receive credit for pre-sentence custody and those who do not, have stated that Fifth Amendment considerations would apply to eliminate the inequality during the legislative hiatus. Dunn v. United States, 376 F.2d 191 (4th Cir. 1967), and Stapf v. United States, 125 U.S.App.D.C. 100, 367 F.2d 326 (1966).

We agree with the rationale of those decisions. They have also held that in any situation where, as a matter of mechanical calculation, credit could have been given within the terms of the maximum possible, the court would conclusively presume that such was done. 367 F.2d at 330. Such is the law of this circuit. Aldridge v. United States, 405 F.2d 831 (9th Cir. 1969). As applied to the facts of this case the maximum sentence was twenty years. There was no minimum mandatory sentence.

It was mathematically possible for the sentencing court, having in mind Aldridge, supra, to have given appellant credit for all of his pre-sentence time- (approximately nine and one-half months) and still have sentenced him to ten years and been within the maximum possible sentence of twenty years.

The appellant further argues that Judge East when imposing the sentence expressly stated that he was not taking the pre-sentence confinement into consideration and thus the presumption cannot be supported and must fail. (Transcript of Sentencing at 13.) We have read the passage referred to and it appears clear that taken in context the remarks of the district judge may not be thus interpreted.

Judgment affirmed. . “The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody prior to the imposition of sentence by the sentencing court for want of bail set for the offense under which sentence was imposed where the statute requires the imposition of a minimum mandatory sentence.” Act of Sept. 2, 1960, Pub.L. 86-691, § 1(a), 74 Stat. 738. . The rationale of 18 U.S.C. § 3568 was that where there was a mandatory minimum, a sentencing court might feel that a credit for pre-sentence custody was contrary to the mandatory minimum provisions.

Hence, to permit such credit as an element of fairness the statute was passed. . See Stapf v. United States, 125 U.S.App.D.C. 100, 367 F.2d 326, 328 (1966). . Act of June 22, 1966, Pub.L. No. 89-465, § 4, 80 Stat. 214, amending 18 U.S.C. § 3568. . To the extent that appellant implies that the rule of other circuits, expressed in a Policy Statement of the United States Bureau of Prisons, No. 7600.51 (1969), deprives him of Equal Protection because it differs from the rule in this circuit, we hold there is no violation of Equal Protection. Cf. Brundage v. United States, 365 F.2d 616, 618 (10th Cir. 1966).