Opinion
May 21, 1934.
Application for leave to file a writ of mandamus in forma pauperis by Joseph De Maggio to be directed to Hon. Alfred C. Coxe, United States District Judge for the Southern District of New York.
Application denied.
Before MANTON, SWAN, and CHASE, Circuit Judges.
On this application the defendant urges that the District Judge lacked jurisdiction to impose upon him a second and increased sentence contrary to his constitutional rights. He was charged with a violation of the Narcotic Act and pleaded guilty, and on October 3, 1933, was sentenced. He was removed from the courtroom to the detention room adjoining, recalled to the courtroom, and thereupon the judge sentenced him and changed his sentence to two and a half years' imprisonment. He is now imprisoned and detained under that sentence.
He had not been taken to a place of detention where he would commence service of his sentence when the alleged illegal sentence was imposed. Had he entered upon serving his first sentence, it could not have been increased (United States v. Benz, 282 U.S. 304, 51 S. Ct. 113, 75 L.Ed. 354) but could have been modified within the term by changing the place of imprisonment. Wall v. Aderhold, 51 F.2d 714 (D.C. Ga.). But, while awaiting removal to jail, he had not begun to serve his sentence. 18 USCA § 709(a).
The application for leave to file a writ of mandamus in forma pauperis is denied.