EARL EDWARD BROTHERTON, APPELLANT,

v.

UNITED STATES OF AMERICA, APPELLEE

PER CURIAM.

Appellant Brotherton made an informal request to the sentencing court that he be given credit for 95 days in custody before sentencing. The district court treated the matter as a motion under 28 U.S.C. § 2255 and denied relief. In so doing it said that at the time of sentencing it did not intend to give credit for pre-sentence confinement.

The sentence was imposed under 18 U.S.C. § 2314 after a guilty plea to the charge of interstate transportation of a forged security. The maximum sentence for the offense is ten years.

In Davis v. Willingham, 10 Cir., 415 F. 2d 344, we held that if the addition of the claimed credit and the sentence imposed results in less than the statutory maximum, it will be conclusively presumed that the sentencing court gave credit for pre-sentence custody. The principle is not applicable here because the trial court specifically said that it did not intend to give the credit. Be that as it may, the sentence was passed before the 1966 amendment to 18 U.S.C. § 3568. The statute fixing the penalty does not provide for a mandatory minimum sentence. The total of sentence time and prior custody time is well within the permissible term. Accordingly, the denial by the trial court of credit for pre-sentence confinement was within its power. Cf. Smith v. United States, 10 Cir., 413 F. 2d 975, 976.

In order to consider a memorandum opposing summary affirmance submitted by appellant, we have withdrawn our opinion previously filed in this cause. After consideration of that pleading, together with the file and records herein, we remain convinced that the question presented is unsubstantial and that there is no necessity for further argument.