888 F. 2d 127 - Mahoney v. United States

Before NATHANIEL R. JONES and RALPH B. GUY, Jr., Circuit Judges, and WILLIAM O. BERTELSMAN, District Judge.*

Mahoney's lawyer moves to withdraw as counsel on appeal from the district court's order denying Mahoney's motion to vacate sentence. 28 U.S.C. Sec. 2255 (1982). The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Pursuant to a plea bargain, Mahoney pleaded guilty to one count of mail fraud. 18 U.S.C. Sec. 1341 (1982). He received a five year sentence and was ordered to pay $87,403.00 in restitution.

In his motion, Mahoney argued that he should receive credit for the time he spent on bond prior to the entry of his guilty plea. The district court denied the motion because Mahoney was not in custody as required under 18 U.S.C. Sec. 3568 (1982).

The district court's holding is correct. In Marrera v. Edwards, 812 F.2d 1517, 1517 (6th Cir.1987), this court held that the custody requirement in Sec. 3568 means physical incarceration or institutional confinement. Because Mahoney was released on bond, he is not entitled to the credit provided in the statute.

The motion to withdraw as counsel is granted. The order of the district court is affirmed under Rule 9(b)(5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.