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UNITED STATES V. BEHRENS, 375 U. S. 162 (1963)

U.S. Supreme Court

United States v. Behrens, 375 U.S. 162 (1963)

United States v. Behrens

No. 86

Argued October 17, 1963

Decided December 9, 1963

375 U.S. 162


Respondent was convicted in a Federal District Court of an offense punishable under 18 U.S.C. §113(a) by imprisonment for not more than 20 years. The Trial Judge issued an oral order under 18 U.S.C. § 4208(b) committing respondent to the custody of the Attorney General pending receipt of a report from the Bureau of Prisons. His order provided that, after the report was received, respondent's commitment, deemed to be for 20 years, would "be subject to modification in accordance with" § 4208(b). After the report was received, the Trial Court entered an order fixing the period of imprisonment at 5 years and providing that the Board of Parole might decide when respondent should be eligible for parole. Neither respondent nor his counsel was present when this order as entered, and respondent subsequently moved to vacate sentence under 28 U.S.C. § 2255.

Held: The first order under § 4208(b) was a preliminary commitment postponing action as to the final sentence; the later order fixing the sentence at 5 years was an "imposition of sentence," within the meaning of Federal Rule of Criminal Procedure 43; and the District Court erred in fixing final sentence in the absence of respondent and his counsel. Pp. 375 U. S. 162-166.

312 F.2d 223 affirmed.

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