245 F2d 707 Mitchell v. United States
245 F.2d 707
57-2 USTC P 9761
David H. MITCHELL, Appellant,
UNITED STATES of America, Appellee.
United States Court of Appeals Eighth Circuit.
June 14, 1957.
Phineas Rosenberg, Kansas City, Mo. (Norman M. Arnell, Harlow B. King, and Morelock, Hoskins, King, Springer & McGannon, Kansas City, Mo., on the brief), for appellant.
Joseph L. Flynn, Asst. U.S. Atty., Kansas City, Mo. (Edward L. Scheufler, U.S. Atty., Kansas City, Mo., on the brief), for appellee.
Before GARDNER Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit judges.
This is an appeal from final order overruling defendant Mitchell's motion, made pursuant to 28 U.S.C. § 2255, and Rule 35 of the Federal Rules of Criminal Procedure, 18 U.S.C. to correct sentence imposed upon him, based upon his conviction for income tax evasion in violation of section § 145(b) of the Internal Revenue Code of 1939, 26 U.S.C. 145(b). It is defendant's contention that the sentence imposed was excessive and illegal in that he should have been sentenced under section 3616(a), 26 U.S.C. § 3616(a) rather than section 145(b). The Supreme Court has rejected this identical contention in Achilli v. United States, 77 S.Ct. 995, holding that 3616(a) does not apply to income tax evasion.
Defendant was indicted and convicted of the offense proscribed by 145(b), and sentence was properly imposed upon defendant under such statute. Defendant's conviction of violating 145(b) has been twice affirmed by this court. Mitchell v. United States, 8 Cir., 208 F.2d 854 and Id., 8 Cir., 221 F.2d 554.
The trial court properly overruled defendant's motion to correct sentence.
The Clerk is hereby directed to issue mandate in this case on June 25, 1957, and our previous order admitting defendant to bail pending disposition of this appeal will be and hereby is terminated on that date, with direction hereby to defendant to surrender himself on or before that date to the warden of the prison from which he was released under our bail order, at such prison, to continue the serving of his sentence. A certified copy of the mandate in the case shall be sent by the Clerk to the United States Attorney for the Western District of Missouri for any necessary transmittal to the warden of the prison and as an incident in having the United States Attorney make report to the Clerk as to whether defendant has duly surrendered himself in accordance with this order.