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688 F.2d 56

Docket No. 82-1601.

United States v. Fraser

Eighth Circuit Court of Appeals

Submitted Sept. 1, 1982.

Decided Sept. 9, 1982.

Eighth Circuit Court of Appeals · decided 1982-09-09

Cited by 8 later decisions — most recently November 1986

7 federal appellate ·

1 counsel of record

Applies 18 U.S.C. § 2113 · 28 U.S.C. § 2241 (Antiterrorism and Effective Death Penalty Act of 1996) · 28 U.S.C. § 2255 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on Lee v. United States · United States v. Cobb · United States v. Janis

Good law ✅— No negative treatment on recordhow we know

Decided 1982-09-09

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¶1*57George W. Proctor, U. S. Atty. by Kenneth F. Stoll, Asst. U. S. Atty., Little Rock, Ark., and Martha M. Adcock, Paralegal, for appellee.

¶2Before LAY, Chief Judge, and BRIGHT and ARNOLD, Circuit Judges.

¶3ARNOLD, Circuit Judge.

¶4Jerry Clarence Fraser was accused of robbing the Commercial National Bank, Airport Branch, in Little Rock, Arkansas, with an unloaded gun. He pleaded guilty to count I of the indictment, which charged bank robbery under 18 U.S.C. § 2113(a) (1976); the United States dismissed the remaining count, which charged armed bank robbery under § 2113(d); and the District Court1 sentenced him to nine years’ imprisonment. Later, on March 23, 1981, Fraser filed a motion under 28 U.S.C. § 2255 (1976) to vacate his sentence, alleging that the consequences of his guilty plea had not been explained to him and that he was sentenced erroneously for armed bank robbery.2 The motion was denied, and Fraser appeals. In his brief, Fraser additionally alleges that his records at the United States Parole Commission reflect that he was sentenced for armed bank robbery.

¶5We affirm the District Court’s decision. We have examined the transcript carefully, and it shows that the District Court fully explained to Fraser the consequences of his guilty plea, thereby complying with Rule 11 of the Federal Rules of Criminal Procedure. The transcript also shows that Fraser was sentenced for bank robbery, not armed bank robbery; the District Court merely considered Fraser’s use of an unloaded gun during the robbery as a factor in setting the sentence.

¶6We believe Fraser has raised a substantial claim of unfair treatment by alleging that the records of the United States Parole Commission show he was sentenced for armed bank robbery.3 Not only was Fraser not in fact convicted of armed bank robbery, he could not have been so convict*58ed, because the gun was not loaded. See United States v. Cobb, 558 F.2d 486, 488 (8th Cir. 1977); Evenstad v. United States, 494 F.Supp. 146, 148 (D.Minn.1980). However, since this is a challenge to the execution of the sentence rather than to the sentence itself, we do not have jurisdiction under § 2255. See, e.g., United States v. Janis, 599 F.2d 266, 267 (8th Cir. 1979); Lee v. United States, 501 F.2d 494, 499-500 (8th Cir. 1974). Nevertheless, we suggest that the Parole Commission examine its records on Fraser and correct any errors. If this is not done, Fraser may bring a habeas corpus action under 28 U.S.C. § 2241 (1976) in the district where he is confined, which is not in this Circuit.

¶7Affirmed.

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