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865 F2d 261 United States v. Peppard

865 F.2d 261

UNITED STATES of America, Plaintiff-Appellee,
v.
Russell Thomas PEPPARD, Defendant-Appellant.

No. 88-3533.

United States Court of Appeals, Sixth Circuit.

Dec. 12, 1988.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

1

Before MERRITT and RALPH B. GUY, Jr., Circuit Judges and EDWARD H. JOHNSTONE, Chief District Judge.*

ORDER

2

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

Russell Thomas Peppard appeals the denial of his motion for credit toward his federal kidnapping sentence for time he spent in state custody while awaiting his murder trial. Petitioner was acquitted of the murder of Ronald Osborne in a West Virginia state court in May 1981. Following his acquittal, petitioner was charged with kidnapping Mr. Osborne in violation of 18 U.S.C. Sec. 1201(a). Petitioner pled guilty and was sentenced by the district court to eight years imprisonment in May 1984. Petitioner contends that he is entitled to credit toward his federal sentence pursuant to 18 U.S.C. Sec. 3568 (1982) (repealed effective Nov. 1, 1987).

4

Upon consideration, we conclude that petitioner's motion was properly denied. Sec. 3568 does not require that petitioner be given credit for time spent in state custody for a different act within a single "crime spree." Shaw v. Smith, 680 F.2d 1104, 1106 (5th Cir.1982). Petitioner's incarceration while awaiting his state murder trial was not attributable to the federal charge. Accordingly, petitioner is not entitled to credit against his federal sentence under Sec. 3568. See United States v. Blankenship, 733 F.2d 433, 434 (6th Cir.1984).

5

Therefore, the judgment of the district court is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.

*

The Honorable Edward H. Johnstone, Chief U.S. District Judge for the Western District of Kentucky, sitting by designation