688 F. 2d 1296 - Granger v. United States

Granger, a federal prisoner, appeals from the district court's denial of his section 2255 petition. We affirm.

Granger received a five year sentence for bank robbery. The district court ordered him to serve six months in custody and suspended execution of the remaining four and one-half year period, to begin when he was released from custody.

After serving his six month sentence, Granger was released and entered the probationary period. He violated one of the conditions of probation; the district court revoked probation and sentenced Granger to three years imprisonment.

The Bureau of Prisons did not give Granger credit toward the three year sentence for the six months previously served, which would have reduced Granger's sentence to two and one-half years.1 The district court denied Granger's subsequent section 2255 petition, stating that had it "known that the reduced and lenient sentence (it) imposed upon revocation of probation created interpretive problems under 18 U.S.C. § 3568, (it) would have made clear that (it) intended Granger to serve three and one-half years total imprisonment."

We agree with the district court that the better practice, when imposing sentence, would be to take into account explicitly the amount of time previously served in custody. Failure to do so, however, does not require a modification of Granger's sentence. When a convicted defendant receives less than the maximum possible sentence, he is presumed to have been credited for any time served in custody before sentencing unless the record shows credit was not given. Myers v. United States, 446 F.2d 232, 234 (9th Cir. 1971) (citing Aldridge v. United States, 405 F.2d 831, 832 (9th Cir. 1969)). The reasoning of Myers governs the present case.

Granger could have received the entire four and one-half years remaining from his original five year sentence, the execution of which had been suspended. United States v. McDonald, 611 F.2d 1291, 1295 (9th Cir. 1980). The record does not show that credit was not given. The Bureau of Prisons properly presumed, as the trial judge intended, that Granger had been allowed credit for the six months served, when he was sentenced to serve a more lenient three year term, rather than the entire remaining sentence.

AFFIRMED.