254 S.W.2d 609 (1953)
STATE ex rel. TAYLOR, Attorney General
v.
ANDERSON et al.
No. 42510.
Supreme Court of Missouri, Division No. 1.
February 9, 1953.
*611 Lincoln, Lincoln, Haseltine & Forehand, H. T. Lincoln and Turner White, Springfield, for appellants.
J. E. Taylor, Atty. Gen., Robert R. Welborn, Asst. Atty. Gen. and William A. Wear, Asst. Atty. Gen., for respondents.
COIL, Commissioner.
Appeal from a judgment in an action by the Attorney General to prevent and restrain defendants from violating the law relating to monopolies, discriminations, and conspiracies contained in Chapter 416, Mo.R.S.1949. (References to statute sections are Mo.R.S.1949, V.A.M.S.)
The suit under § 416.260 for injunctive relief, alleged in count I that defendants entered into an agreement or understanding with four corporations to regulate, control, and fix the resale price of liquid petroleum and to maintain the price so fixed and regulated; entered into such agreement or understanding for the purpose of lessening free competition and to increase the market price of liquid petroleum, and that such agreement or understanding did tend to lessen free competition and to increase the market price; and that such agreement or understanding was in restraint of trade and competition. The averments of count I are based upon the provisions of §§ 416.010, 416.020, and 416.040.
Count II of the bill averred that defendants combined with four corporations for the purpose of destroying the competition of another corporation and discriminated against it by selling liquid petroleum in one city or area of the state at a different price than it was sold by defendants in combination with the four corporations in another city or area of the state. These averments were based upon § 416.120. As will later appear, we eliminate the question of violation of this section (416.120) from consideration. Thus, further reference herein to the "sections of the statutes" or to the "statutes" will refer, unless otherwise noted, to §§ 416.010, 416.020, and 416.040.
The trial court's judgment found defendants guilty of a conspiracy in restraint of trade and permanently restrained and enjoined them from participating in any agreement or understanding for the purpose of fixing the resale price of liquid petroleum, and from participating in any agreement or understanding to discriminate against a competitior by selling liquid petroleum in one city for a lower price than liquid petroleum is sold by defendants in another city.
The sections of the statutes here involved (for the purposes of this case) provide in substance as follows: § 416.010that any person who enters into an agreement or understanding with any other person in restraint of trade or competition is guilty of conspiracy in restraint of trade; § 416.020that any person who enters or participates in an agreement or understanding with any other person to regulate, control, or fix a price, or to maintain such regulated or fixed price, is guilty of conspiracy in restraint of trade; § 416.040that agreements or understandings between two or more persons which are designed to lessen *612 or which tend to lessen free competition, or agreements which are designed to increase or which tend to increase the market price of any commodity, are against public policy, unlawful and void, and that any person participating in such an agreement is guilty of conspiracy in restraint of trade; § 416.120 provides that any person engaged in the sale of a commodity who with intent to destroy, and for the purpose of destroying, competition of an established dealer in such product or commodity, discriminates by selling the commodity in one town at a lower price than he sells it in another town, having regard for different cost factors, is guilty of unfair discrimination which is prohibited and declared unlawful.
Section 416.050 provides for fine or imprisonment or both for one convicted of violating the provisions of §§ 416.010, 416.020, and 416.040. While the assessment of penalties was prayed in plaintiff's bill, no penalties were assessed by the trial court. Obviously, penalties could not be assessed because this is a civil proceedings in equity by virtue of § 416.260 and not a criminal proceedings under § 416.050.
The evidence adduced by the Attorney General tended to establish that defendants are partners doing business as Economy Gas Company with their principal office in Springfield, Missouri, and sell liquid petroleum (propane and butane gas) in and about the City of Springfield; that in September 1950 defendant Fritts, in company with a representative of each of three corporations which also sold liquid petroleum in Springfield, visited one Kenneth Coatney at the offices of the Lebanon Propane Gas and Appliance Company, a corporation, in Lebanon, Missouri; that Coatney controlled and managed the Lebanon Propane Gas and Appliance Company, and was president of the Ken L. P. Gas Company, a corporation whose principal office was in Springfield, and that both the last named corporations sold liquid petroleum in Lebanon and Springfield, respectively; that Fritts, as spokesman for himself and those with him, told Coatney that since he, Fritts, and defendant Anderson had bought the Economy Gas Company (September 1949), "they had all got together and organized a group which had set the price on gas and they would get that price the year round"; that they were getting 12¢ and 14¢ per gallon in Springfield and Lebanon for gas, and requested that Coatney raise his price to theirs; that one or two of the others with Fritts also told Coatney that they all had the same price; that Coatney, through the Ken L. P. Gas Company, was then selling liquid petroleum in Springfield for 9½¢ and 10½¢ a gallon depending on the amount sold; that Fritts remonstrated with Coatney about undercutting others on price and told Coatney that the others would lose money if they had to meet his price and they did not intend to do so; that if Coatney refused to go along with them they would contribute money to a fund and run Coatney out of business; that Fritts said it would be cheaper to contribute to run Coatney out of business than to take the loss which would result from selling at Coatney's price; that Fritts suggested they buy out Coatney in Springfield, which proposition Coatney refused; that someone asked whether Coatney would leave Springfield of Missouri Hydro Gas Company, a representative of which was present in the meeting, ceased doing business in Lebanon; that Coatney said he would consider this; that Fritts said they would discuss the matter with Mr. Bales, one of the owners of the Missouri Hydro Gas Company, and let Coatney know; that after the other parties present had left the meeting, Fritts told Coatney that they would see what could be worked out, but that the "boys really meant business"; that this meeting lasted about three hours and that many of the statements made by defendant Fritts were repeated in various forms at numerous times during the meeting.
Several days later, probably September 22, 1950, defendants Anderson and Fritts called on Coatney at his office in Lebanon and Fritts stated that they (identified as "the group") were going to put 5¢ gas in Lebanon and run him, Coatney, out of business if he didn't come to terms; that they had all talked it over and had discussed several plans but had decided on the plan to put 5¢ gas in Lebanon as most effective; that Fritts again requested that *613 Coatney raise his price; that Anderson told him (Coatney) that he was "a bull-headed fool for not coming along with the group"; that Coatney told them he would think it over and let them know by a certain day; that they said if he didn't come to terms there would be 5¢ gas in Lebanon until he did come to terms.
Of the four corporations with whom defendants are charged to have agreed, only Missouri Hydro Gas Company sold bulk liquid petroleum in Lebanon or in the "Lebanon area". On October 2, 1950, Missouri Hydro Gas Company advertised in a daily paper in Lebanon offering propane and butane gas for sale at 5¢ per gallon at any place within a 10-mile radius of Lebanon, and continued to so offer for about 30 days.
Defendants Anderson and Fritts again visited Coatney in Lebanon at a later time, probably October 17, 1950, and Anderson said to Coatney: "We are taking all of your customers up here and we are just going to run you out of business" and "instead of just having gas within ten miles of Lebanon, we will have it everywhere your bulk truck runs and you won't make a cent on your gas as long as you are in business." This third meeting lasted about an hour.
Essentially all the foregoing evidence was adduced through the testimony of Coatney. Coatney's wife, his secretary, and a salesman in the retail store of the Lebanon Propane Gas and Appliance Company, who were present in the store when certain of the conversations heretofore referred to took place, testified that they overheard parts of those conversations and corroborated the testimony of Coatney to a certain extent. Kathryn Coatney, the wife, testified that she heard Fritts ask Coatney to raise his price in order to meet the prices which they "had set." The bookkeeper heard Anderson or Fritts tell Coatney that if he didn't meet their price, all the companies were going together and see that Coatney "didn't make a nickel on a gallon of gas." The salesman said that he had heard a discussion during the original visit of Fritts and the representatives of the other companies concerning the price of gas and heard them ask Coatney to go along with them.
Defendants adduced evidence consisting of the testimony of themselves and of the representatives of the corporations who were present at the first meeting with Coatney, and of other officers and representatives of the various corporations with whom it was charged defendants agreed and combined. This testimony directly contradicted the testimony of Coatney as to what occurred and was said at the three meetings. All of defendants' witnesses, including defendants, denied that there was ever any sort of an agreement or understanding to fix, control or regulate prices or to maintain prices, or any attempt to coerce Coatney in any manner, or any request made that he raise his prices to meet theirs, or that any threat of any kind was made concerning 5¢ gas in Lebanon or otherwise; that no one other than Missouri Hydro Gas Company and its president and manager knew of the fact that Missouri Hydro Gas Company was to offer propane and butane at 5¢ a gallon on October 2 or at any other time; that such was done solely for the purpose of stimulating sales and not as a result of any agreement or understanding, tacit or otherwise, and not for the purpose of, or with the intent of, eliminating or lessening the competition of Coatney's company or companies.
Defendants Anderson and Fritts explained the original visit of Fritts and the other representatives of gas companies to Coatney and the subsequent visits of Fritts and Anderson to Coatney by stating that their sole purpose was to ascertain from Coatney his true intent with reference to his operation in Springfield, and to find out why Coatney was selling gas at so low a price; that they had learned that Ken L. P. Gas Company was selling liquid petroleum for as little as 8¢ a gallon in Springfield; that to meet this competition would be ruinous to defendants; that they were consequently much concerned; that they had understood that Coatney, who had begun business in Springfield in the summer of 1950, was there on a temporary basis in an attempt to, and for the purpose of, "hurting" Missouri Hydro Gas Company; *614 that later they suspected Coatney might intend to stay in Springfield permanently and thus they wanted to ascertain just what Coatney intended to do and why he would sell, and how long he intended to continue to sell, at the price of 8¢ and 9¢ in Springfield.
The evidence showed that the prices at which defendants sold liquid petroleum in Springfield, viz., 11¢, 12¢ and 14¢ per gallon in September and October, 1950, were the same prices in effect at the time defendants bought the business of Economy Gas Company in September 1949; that those same prices were continued in effect from the time defendants entered business in Springfield until December 16, 1950, when a price increase was made due to an increase in price by their supplier and other increased costs. Prices charged by the other Springfield companies, with whom defendants are charged to have had an understanding, varied during 1950 from 10¢ to 15¢ per gallon depending on the amount sold and the particular period covered. An analysis of the testimony as to prices charged for liquid petroleum by the defendants and the four corporations with whom they are charged to have agreed to fix prices, discloses that there was some uniformity in that the minimum and maximum price of each company for the periods in question were about the same. Nevertheless, the only evidence in the record tends to show that liquid petroleum is a standardized product; that the cost to all Springfield companies was about the same, that the costs of handling and distribution were about the same, and consequently that a certain uniformity of price would undoubtedly prevail irrespective of any agreement or understanding as to fixing, controlling, regulating, or maintaining prices.
Defendants contend that there is a failure to prove by clear and satisfactory evidence that they violated the statutes heretofore mentioned. They point out that the fact alone of uniformity of prices is not evidence of a conspiracy to fix prices where the product is standardized; that reduction of price to stimulate sales is a proper practice; and contend that admissions of defendants are not alone sufficient to establish a conspiracy and may be considered only after the conspiracy has been established by evidence other than defendants' admissions; and further contend that the evidence is as consistent with an inference of innocence as with an inference of guilt.
It is clear from the foregoing review of the evidence that whether there is substantial and convincing evidence to support the trial court's findings and judgment depends entirely upon whether the testimony of Coatney is believed. While there are other circumstances in evidence, those circumstances alone or together would not be sufficient to show a violation by defendants of the statutes involved. That is to say, the fact of uniformity of prices in Springfield, in the absence of any showing that this uniformity was the result of an artificial condition and did not result naturally from standardized costs in the purchase, handling, and distribution of the item, would not be sufficient evidence from which to infer any agreement or understanding to fix, control, regulate, or maintain prices. Pevely Dairy Co. v. U. S., 8 Cir., 178 F.2d 363, 366[5]; United States v. Standard Oil Co. of New Jersey, D.C.E.D.Mo., 47 F.2d 288, 316, 317. Likewise, the fact that Missouri Hydro Gas Company did, on October 2 and for approximately thirty days thereafter, sell gas in Lebanon for the price of 5¢ per gallon would not be sufficient alone, or in combination with the evidence of uniformity of prices, to furnish a substantial basis for an inference that an agreement as to price existed. Nor is the circumstance that defendants and the representatives of three other corporations visited Coatney on one occasion to talk about price and Coatney's intent, nor is the circumstance of two other visits to Coatney by defendants alone to pursue the same subject-matter, even if those two circumstances are added to the others mentioned, sufficient evidence to establish the existence of an agreement or understanding as to price.
On the contrary, it is clear that no violation of the provisions of the statutes noted is shown unless the testimony of Coatney, as corroborated in a limited way by his wife, his secretary, and his salesman, *615 is accepted as true. But if the testimony of Coatney is believed, despite the direct contradiction of all essential parts thereof by defendants' evidence, and the other circumstances are then considered, there was substantial evidence from which the trial court could properly find that a violation of the statutes in question occurred.
The trial court concluded that the degree of proof to establish the charges made was such as to "induce belief and convince the mind of the trier of the facts."
Appellants contend plaintiff has the burden to prove the guilt of defendants by clear and satisfactory evidence, citing in support: State ex inf. Crow v. Continental Tobacco Co., 177 Mo. 1, 75 S.W. 737; State ex rel. Barrett v. Carondelet Planing Mill Co., 309 Mo. 353, 274 S.W. 780; and State ex inf. Hadley v. Standard Oil Co., 218 Mo. 1, 116 S.W. 902. Each of those cases is a quo warranto proceedings. This is not a quo warranto proceedings. However, it is a proceeding for injunctive relief in which, as a basis therefor, violations of the so-called antitrust statutes must be proved. We find no case in this state in which an individual has been proceeded against in equity under § 416.260. We have no doubt, however, that a violation of these statutes must be established by clear and convincing evidence and that clear and convincing evidence must certainly be more substantial evidence than that which is only sufficient to submit a case for the consideration of a jury. There must be substantial evidence of a kind and character which is clear and convincing as to the existence of the ultimate fact to be proved.
Coatney testified to statements made by defendants which, if true, constituted evidence that an understanding existed among defendants and other companies in Springfield to control, regulate, and maintain prices. These voluntary statements of defendants are in the nature of admissions against interest. They were statements of facts rather than of opinions. Extrajudicial admissions are, of course, admissible in evidence and are competent as evidence of the existence of the facts which they tend to establish. Concrete Steel Co. v. Reinforced Concrete Co., Mo.App., 72 S.W.2d 118, 120[2-5]; Tappe v. Pohlmann, Mo.App., 79 S.W.2d 485, 488[5]; 31 C.J.S., Evidence, § 273, p. 1027.
Of course, the effect to be given and the construction to be placed upon an oral admission depends upon the circumstances under which it was made, and a consideration of all that was said at the time of the admission. 31 C.J.S., Evidence, § 277, p. 1029. Here the admissions were voluntary statements admitting directly and unequivocally the ultimate essential fact to be proved.
The rule suggested by appellants, that a confession or admission of guilt is insufficient to prove a crime without independent proof of the corpus delicti, has no application for the obvious reason that this is a civil and not a criminal proceedings.
We have pointed out that the circumstances heretofore referred to, independent of defendants' admissions, were insufficient to furnish a substantial basis for a finding of a violation of the statutes referred to. However, the court could properly consider these circumstances in determining the credibility of the testimony by the witness Coatney. The trial chancellor believed the testimony of Coatney and disbelieved the testimony of defendants and the other witnesses adduced by defendants in direct contradiction of Coatney's testimony.
This being a suit in equity, we review the case de novo, weigh the evidence, and determine on the whole record what relief, if any, should be granted. Where, as here, however, there exists an irreconcilable conflict in the evidence on the essential fact issue involved, depending for determination on the credibility of witnesses, a situation prevails wherein the application of the rule of deference to the findings and conclusions of the trial chancellor is especially appropriate and necessary. Heath v. Heath, 359 Mo. 590, 600[1], 222 S.W.2d 778, 785[1]; Gardine v. Cottey, 360 Mo. 681, 693, 230 S.W.2d 731, 738[2]. The trial chancellor's opportunity to observe the witnesses and to hear them testify *616 affords him a basis for determining the credibility of testimony which we do not have. A review of the entire record in this case convinces us we should defer to the trial court's conclusion that the testimony of Coatney was true. Based upon a full review of the record, we hold that the testimony of Coatney, accepted as true, together with the other circumstances in evidence, constitutes substantial and convincing evidence of a violation by these defendants of the provisions of the statutes here considered. Johnson v. J. H. Yost Lumber Co., 8 Cir., 117 F.2d 53, 57[3].
Accepting Coatney's testimony as true and then considering it with the other circumstances shown in evidence, there is convincing evidence in the record to establish these facts: that visits to Coatney were made by defendants, at one time in the company of other sellers of liquid petroleum, for the purpose of discussing the intent of Coatney with reference to prices of liquid petroleum in Springfield; that there was uniformity of prices of liquid petroleum in Springfield among defendants and some other sellers; that defendants said there was an agreement among them and other sellers of liquid petroleum in Springfield to at least regulate, control, and maintain uniform prices; that defendants threatened to destroy Coatney's Lebanon business unless he joined in an agreement to sell in Springfield at the controlled and maintained prices charged by defendants and certain other Springfield sellers; that upon the refusal of Coatney to so agree, Missouri Hydro Gas Company offered for sale propane and butane gas in Lebanon and within a 10-mile radius thereof for 5¢ a gallon which was in accord with defendants' threat to destroy Coatney's business in Lebanon.
The trial court was justified in finding from these facts that some understanding or agreement existed among defendants and others to regulate or control or maintain prices of liquid petroleum, and that there was some understanding among defendants and at least one other which was intended to lessen full and free competition in the sale of liquid petroleum.
Having determined that the evidence supports the conclusion that defendants' activities violated the law in question, it remains to determine whether a right to injunctive relief was shown. As noted, this proceeding for injunctive relief is not for the purpose of assessing penalties against violators of the provisions of the statutes because of past violations or possible future violations. Nor is it the purpose of this proceeding to establish that a past violation did occur except as that fact may aid in establishing a basis for injunctive relief. Analogous sections of the Sherman Act are said to be purely remedial, and under them a court may not, under the guise of equitable relief and through the use of injunctive process, assess a penalty or punish for past transgressions. U. S. v. National Ass'n of Real Estate Boards, 339 U.S. 485, 70 S.Ct. 711, 94 L.Ed. 1007, 1015, footnote 6; Hartford-Empire Co. v. U. S., 323 U.S. 386, 65 S.Ct. 373, 89 L.Ed. 322, 359, 360. The sole purpose of this injunctive proceeding is the protection of the public against the evils which result from price fixing and from agreements to lessen or destroy free competition. However, it must appear that there is some reasonable probability of a continuation of the menace to the public before injunctive relief is justified. Donnelly Garment Co. v. Dubinsky, 8 Cir., 154 F.2d 38, 43[9-11].
Thus, the fact that a violation of the laws relating to monopolies, discriminations, and conspiracies has been proved, does not necessarily call for injunctive relief. Nor does the fact that § 416.260 provides specifically that circuit courts may "prevent and restrain" violations of such laws change the considerations upon which equitable relief will be granted. Missouri Cafeteria, Inc., v. McVey, Mo.Sup., 242 S.W.2d 549, 554[9]. It must appear that injunctive relief will accomplish the purpose of the proceeding, viz., to prevent continuing and probable future violations by those who have acted contrary to the proscriptions of the applicable statutes, and thus to the detriment of the public.
We note the Attorney General's bill was filed October 21, 1950; the trial *617 was January 16 and 17, 1951. The evidence in the record is not specific as to the situation which prevailed at the time of trial as compared to that proved in September and October, 1950. There was, however, no evidence that the understanding which existed prior to and during September and October, 1950 did not continue and also exist at the time of trial. Likewise, there was no evidence adduced from which it could be inferred that there was no reasonable expectation that the violations proved would not be continued or repeated. With the record before us in this condition, and particularly in view of the short time elapsed between the period covered by the proof and the time of trial, we may not say there was no reasonable probability that injunctive relief would accomplish the purpose of this proceeding. On the contrary, we may say that the trial court could reasonably conclude that injunctive relief was necessary and proper to prevent continued participation in an agreement or understanding as to fixing, regulating, controlling, and maintaining prices and continued participation in an agreement or understanding intended to lessen free competition.
The trial court found that the evidence did not show any participation in an unlawful agreement or understanding by any of the four corporations named in the bill other than Missouri Hydro Gas Company. Inasmuch as the corporations named are not parties to this proceeding, we need not determine whether any named corporation other than Missouri Hydro was or was not a party to the agreement or understanding.
We point out that we have made no determination as to whether a violation of § 416.120 (the unfair discrimination section) was proved. While we are inclined to the view that no violation of this section was proved, nevertheless it is unnecessary to make a determination on this question. This, for the reason that the understanding with Missouri Hydro as to 5¢ gas in Lebanon constituted a violation of § 416.040 in that it was an agreement intended to lessen free competition. Thus, the purpose of this proceeding in that respect may be accomplished without any determination as to violation of § 416.120.
A portion of the judgment entered by the trial court was based upon a finding of a violation by defendants of § 416.120 (the unfair discrimination section). Further, we are of the opinion that the judgment as entered by the trial court was, because of certain of its language, broader than necessary to provide for the specific relief justified by the evidence. For these reasons, the judgment herein should be modified and changed and the following judgment entered:
"Defendants are hereby permanently restrained and enjoined from regulating, controlling, or fixing the price or prices of liquid petroleum in Springfield, Missouri, by entering into, becoming a member of, participating in, or continuing to participate in any agreement, combination, confederation, or understanding with any person or persons or with any and all corporations, which agreement, combination, confederation, or understanding has for its purpose the regulating, controlling, or fixing of the price of liquid pertoleum in Springfield, Missouri, or which does regulate, control, or fix the price of liquid petroleum in Springfield, Missouri, or which agreement, combination, confederation, or understanding has for its purpose the maintaining of any price resulting from any such agreement, combination, confederation, or understanding to regulate, control, or fix the price of liquid petroleum in Springfield, Missouri; and
"Defendants are hereby permanently restrained and enjoined from entering into, participating in, or continuing any participation in any arrangement, agreement, or understanding whereby, for the purpose or with the intent of destroying or lessening full and free competition in the sale of liquid petroleum in Lebanon, Missouri, liquid petroleum is sold or caused to be sold in Lebanon, Missouri, for a lower price than that for which it is sold in Springfield, Missouri.
"The costs of this action are taxed against defendants."
*618 The judgment of the trial court is reversed and the case remanded with directions to enter judgment in accordance with this opinion.
VAN OSDOL and LOZIER, CC., concur.
PER CURIAM.
The foregoing opinion by COIL, C., is adopted as the opinion of the court.
All concur.


5 Cal.Rptr.3d 734 (2003)
112 Cal.App.4th 1230
In re BRYANT R., Jr., a Person Coming Under the Juvenile Court Law.
The People, Plaintiff and Respondent,
v.
Bryant R., Jr., Defendant and Appellant.
No. F041423.
Court of Appeal, Fifth District.
October 27, 2003.
Review Denied January 28, 2004.
Tim Warriner, under appointment by the Court of Appeal, Sacramento, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Robert P. Whitlock and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.[*]

OPINION
ARDAIZ, P.J.
Welfare and Institutions Code section 726 states in part that "[i]n any case in which the minor is removed from the physical custody of his or her parent or guardian as a result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court."[1] The statute then goes on to define "maximum term of imprisonment." Pertinent to this case is the sentence of section 726 which reads: "If the court elects to aggregate the period of ... confinement on multiple counts, or multiple petitions, including *736 previously sustained petitions adjudging the fninor a ward within Section 602, the `maximum period of imprisonment' shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code...." (§ 726.) The issue presented to us in this case is: when the court "elects to aggregate the period of physical confinement on ... multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602" (§' 726), must the court necessarily aggregate the period of physical confinement on all previously sustained petitions? As we Shall explain, in our view the answer is no. We hold that when the minor has (as in this case) exhausted his available confinement time on one or more previously sustained petitions, the court need not include those petitions when the court "elects to aggregate the period of ... confinement on ... multiple petitions" under section 726.

FACTS
Appellant was adjudged a ward of the court pursuant to section 602 on six separate occasions. A petition filed on September 11, 1997 resulted in appellant admitting a violation of Penal Code section 602 (trespassing). A December 18, 1997, petition resulted in appellant admitting a violation of Penal Code section 647.6 (misdemeanor molestation) and admitting to violating the terms of his probation (§ 777). A July 2, 2001, petition resulted in appellant admitting another violation of Penal Code section 488. A September 18, 2001 petition resulted in appellant admitting a violation of Penal Code section 524 (misdemeanor attempted extortion) and again admitting to violating the terms of his probation (§ 777). An October 23, 2001 petition (later amended on November 7, 2001) resulted in appellant admitting another violation of Penal Code section 488 and again admitting to violating the terms of his probation (§ 777). The sixth petition, filed on July 23, 2002 resulted in appellant admitting another violation of Penal Code section 488 and again admitting to violating the terms of his probation (§ 777).
At an August 20, 2002 dispositional hearing on the sixth petition, the court ordered appellant continued on terms of probation not to exceed his 21st birthday. The court removed appellant from the custody of his mother, ordered placement and care of appellant to be vested with the probation department, ordered appellant to be delivered to juvenile hall pending placement, and made other appropriate orders. The court also set the maximum confinement time at one year, six months, less 70 days credit for time served.

I.
THE COURT PROPERLY AGGREGATED THE PERIOD OF PHYSICAL CONFINEMENT ON PREVIOUSLY SUSTAINED PETITIONS
The court's method of computing the maximum confinement time after appellant's sixth (the July 23, 2002) petition was sustained is the topic of dispute on this appeal. The court elected to "aggregate the period of physical confinement on ... multiple petitions, including previously sustained petitions." (§ 726.)[2] After appellant's *737 second (the December 18, 1997) petition was sustained, the court had aggregated appellant's available confinement time and had determined that to be one year and two months. Appellant was then in and out of six different group homes, and exhausted his available confinement time by December 28, 2000, i.e., before the third (the July 2, 2001) petition was filed. Thus, after the sixth (July 23, 2002) petition was filed and was ultimately sustained, the court concluded that there was no more available confinement time from appellant's first two petitions. It aggregated the available confinement time from the last four petitions. Following the dictates of Penal Code section 1170.1, subdivision (a) and section 726, the court calculated the available confinement time as one year and six months by using the principal term of one year on the Penal Code section 524 offense from the fourth sustained petition, and two months each from the third, fifth and sixth sustained petitions (i.e., the three Pen.Code, § 488 offenses).[3]
Appellant contends, however, that the court should have utilized all six sustained petitions in calculating his available confinement time after the sustaining of his current (sixth) petition. His argument is that all six sustained petitions involve "offenses which brought or continued the minor under the jurisdiction of the juvenile court" within the meaning of the second paragraph of section 726. Therefore, he *738 argues, section 726 requires the court to utilize all of the offenses in the six sustained petitions in making the Penal Code section 1170.1, subdivision (a) calculation of the "aggregate term of imprisonment" to be used as the "maximum term of imprisonment" in section 726, i.e., the maximum available period of "physical confinement" for the minor as a result of the sixth sustained petition. (§ 726.)[4] In our view, however, the flaw in appellant's argument is that his conclusion does not logically follow his premise. He is correct that all six of his sustained petitions involve "offenses which brought or continued [him] under the jurisdiction of the juvenile court." But even an adult convicted of those very same six offenses would not be required to serve additional time on his first two offenses if that adult served his entire sentence on the first two offenses before being convicted of the subsequent four offenses. To require a minor to do so would appear to us to be ignoring the objective of section 726 rather than adhering to its requirements.[5]
"In interpreting a statute, a court `should seek to effectuate the intent of the law, acting in a reasonable fashion to give the statute a sensible construction in accordance with the purpose of the lawmakers, to promote rather than defeat the policy underlying the legislation.' (People v. Superior Court (Price) (1984) 150 Cal.App.3d 486, 489 [198 Cal. Rptr. 61].) Consequently, we must look to the overall purpose of the statute, which, in this case, is to ensure that a minor is not held `in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult' for the same offenses. ( ... § 726, italics added; In re James A. (1980) 101 Cal.App.3d 332, 338 [161 Cal.Rptr. 588].)" (In re Prentiss C.) (1993) 14 Cal.App.4th 1484, 1487, 18 Cal.Rptr.2d 541.)
In People v. Olivas (1976) 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375, the court held that youthful misdemeanants may not be subjected to the control of the Youth Authority for any period of time in excess of the maximum jail term that might be imposed upon adult misdemeanants committing the same offense. To do so, the court concluded, would constitute "a denial of equal protection in violation of article I, section 7, of the California Constitution and the Fourteenth Amendment to the United States Constitution." (People v. Olivas, supra, 17 Cal.3d 236, 243, 131 Cal. Rptr. 55, 551 P.2d 375, fn. omitted.) In *739 response to Olivas, the Legislature in 1976 amended section 726 to state in relevant part: "In any case in which the minor is removed from the physical custody of his parent or guardian as the result of an order or wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense which brought the minor under the jurisdiction of the juvenile court." (Stats. 1976, ch. 1071, § 29, p. 4827.) In In re Aaron N. (1977) 70 Cal.App.3d 931, 139 Cal.Rptr. 258, the court construed this language to mean that "where, as here, the minor violates several provisions of criminal law by his repeated misconduct for which he is declared a section 602 ward of the court, each and every criminal violation may constitute the offense which brings him under the jurisdiction of the juvenile court and may serve as a measurement of his physical confinement under the broad language of sections 726 and 731 without violating the basic precept of equal treatment of adult and juvenile offenders." (In re Aaron N., supra, 70 Cal.App.3d at pp. 939-940, 139 Cal.Rptr. 258.) In 1977 the Legislature then essentially codified Aaron N. and attempted to clarify section 726 by changing the words "the offense which brought the minor under the jurisdiction of the juvenile court" to "the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court," and by adding the three ensuing paragraphs defining "maximum term of imprisonment." (Stats.1977, ch. 1238, § 1, p. 4158; see also Cal. Juvenile Court Practice (CEB 1981) § 9.42.) Thus after the 1977 amendments, section 726 read in pertinent part:
"In any case in which the minor is removed from the physical custody of his parent or guardian as the result of an order of warship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.
"As used in this section and in Section 731, `maximum term of imprisonment' means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code, but without the need to follow the provisions of subdivision (b) of Section 1170 of the Penal Code or to consider time for good behavior or participation pursuant to Sections 2930, 2931, and 2932 of the Penal Code, plus enhancements which must be proven if pled.
"If the court elects to aggregate the period of physical confinement on multiple counts, or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602, the `maximum term of imprisonment' shall be specified in accordance with subdivision (a) of Section 1170.1 of the Penal Code.
"If the charged offense is a misdemeanor or a felony not included within the scope of Section 1170 of the Penal Code, the `maximum term of imprisonment' is the longest term of imprisonment prescribed by law." (Stats.1977, ch. 1238, § 1, pp. 4158-4159.)
In 1994 the Legislature amended the third above-quoted paragraph of section 726 to clarify the meaning of, "the `maximum term of imprisonment' shall be specified in accordance with subdivision (a) of Section 1170.1 of the Penal Code." After the 1994 amendment this paragraph read: "If the court elects to aggregate the period *740 of physical confinement on multiple counts, or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602, the `maximum term of imprisonment' shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code, which includes any additional term imposed pursuant to Section 667, 667.5, 667.6, or 12022.1 of the Penal Code, and pursuant to Section 11370.2 of the Health and Safety Code." (Stats.1994, ch. 181, § 1, p. 1393.)[6] This paragraph has remained essentially unchanged to this date. The history of this statute appears to demonstrate refinements and clarifications of the basic principle embodied in the statutethat the minor's maximum period of physical confinement is to be determined in a manner analogous to that of the maximum sentence of a similarly situated adult offender.[7]
The case of In re Dana G. (1983) 139 Cal.App.3d 678, 188 Cal.Rptr. 866 is also instructive here. In Dana G. a section 602 petition was sustained and the minor was found to have violated Vehicle Code section 31 (giving false information to a police officer). The maximum commitment time for a violation of Vehicle Code section 31 was six months (Veh.Code, § 42002). The court set the maximum period of physical confinement at two years. It did this by "adding to the term for the misdemeanor charge of giving false information, the unspent custody time from two prior wardships." (In re Dana G., supra, 139 Cal. App.3d at p. 680, 188 Cal.Rptr. 866.) But each of the two prior wardships had been terminated prior to the minor's Vehicle Code section 31 violation, and the appellate court agreed with the minor's contention that her maximum period of physical confinement "cannot include unserved custody time from prior terminated wardships." (In re Dana G., supra, 139 Cal.App.3d at p. 680, 188 Cal.Rptr. 866.) The respondent in Dana G. argued that unserved custody time from the prior terminated wardships should be aggregated and included in the computation of the maximum period of physical confinement for the sustained petition on the Vehicle Code section 31 violation. Even though the first two wardships involved "offenses which brought or continued the minor under the jurisdiction of the juvenile court" (just like the first two sustained petitions in the case presently before us), the Dana G. court relied on the basic principle embodied in the statutethat the minor's maximum period of physical confinement is to be determined in a manner analogous to that of a similarly situated adult offender. The court stated, with regard to section 726: "The section ... not only permits aggregation but requires a maximum term of confinement no longer than the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses. If the juvenile court aggregated unspent time on petitions which had been dismissed, this latter requirement of the section would not be met. An adult may not have his term increased by unspent custody time on dismissed charges. When the adult is released from his custody and parole time, he cannot be required to serve any unserved time on a new charge." (In re Dana G., supra, 139 Cal.App.3d at p. 680, 188 Cal.Rptr. 866.) Similarly, when an adult serves his entire term of imprisonment on a first conviction, that sentence cannot magically be lengthened *741 upon a subsequent conviction, with the magically lengthened portion of the first sentence added on to the term of imprisonment imposed on the defendant's second conviction. A first conviction can in some instances result in a longer sentence on a second conviction, i.e., when a prior conviction enhancement allegation is pled and proven in the second case, but that scenario is accounted for in the language of section 726 and Penal Code section 1170.1. (See also Cal. Juvenile Court Practice, supra, § 9.40.)

II[**]

III.

DISPOSITION
The juvenile court is directed to modify that portion of its August 20, 2002 order stating, "the available confinement time is 1 year(s), 06 months, less 70 day(s) credit for time served" to read "the available confinement time is 1 year(s), 06 months, less 71 day(s) credit for time served." As modified, the August 20, 2002 order is affirmed in its entirety.
WE CONCUR: LEVY and GOMES, JJ.
NOTES
[*]   Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part II.
[1]  All further statutory references are to the Welfare and Institutions Code unless otherwise stated. Rule 1494(b) of the California Rules of Court similarly states: "If the youth is declared a ward under section 602, and ordered removed from the physical custody of a parent or guardian, the court must specify, and note in the minutes the maximum period of confinement under section 726."
[2]  Section 726, subdivision (c) states:

"In any case in which the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.
"As used in this section and in Section 731, `maximum term of imprisonment' means the longest of the three time periods set forth in paragraphs (2) of subdivision (a) of Section 1170 of the Penal Code, but without the need to follow the provisions of subdivision (b) of Section 1170 of the Penal Code or to consider time for good behavior or participation pursuant to Section 2930, 2931, and 2932 of the Penal Code, plus enhancements which must be proven if pled.
"If the court elects to aggregate the period of physical confinement on multiple counts, or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602, the `maximum term of imprisonment' shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code, which includes any additional term imposed pursuant to Section 667, 667.5, 667.6, or 12022.1 of the Penal Code, and Section 11370.2 of the Health and Safety Code.
"If the charged offense is a misdemeanor or a felony not included within the scope of Section 1170 of the Penal Code, the `maximum term of imprisonment' is the longest term of imprisonment prescribed by law.
`Physical confinement' means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority.
"Nothing in this section shall be construed to limit the power of the court to retain jurisdiction over a minor and to make appropriate orders pursuant to Section 727 for the period permitted by Section 607." For the text of Penal Code section 1170.1, subdivision (a), see footnote 3, post.
[3]  Penal Code section 1170.1, subdivision (a) states:

"(a) Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third the term imposed for any specific enhancements applicable to those subordinate offenses."
[4]  Appellant contends that his maximum confinement time is 230 days. This is considerably less than the one year, six months, less 70 days (i.e., a total of 475 days) stated by the juvenile court. Appellant's calculation is as follows: a one-year principal term on the Penal Code section 647.6 adjudication on the second (December 18, 1997) petition; plus two months on the Penal Code section 602 adjudication on the first (September 11, 1997) petition; plus two months on the Penal Code section 488 adjudication on the third (July 2, 2001) petition; plus four months on the Penal Code section 524 adjudication on the fourth (September 18, 2001) petition; plus four months on the Penal Code section 488 adjudication on the fifth (October 23, 2001) petition; plus two months on the Penal Code section 488 adjudication on the sixth (July 23, 2002) petition; for a total of two years (730 days), less credit for 500 days spent in custody at juvenile hall. Apparently 430 of those 500 days were spent as a result of the first two sustained petitions.
[5]  The "mandate of section 726, subdivision (c)" is "that a juvenile `not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted' of the same offenses ...." (In re Eric J. (1979) 25 Cal.3d 522, 536, 159 Cal.Rptr. 317, 601 P.2d 549.) In accord, see also In re Jovan B. (1993) 6 Cal.4th 801, 819, 25 Cal.Rptr.2d 428, 863 P.2d 673.
[6]  A 2002 amendment to section 726 made the nonsubstantive change of eliminating the words "pursuant to" just before "Section 113702.2." (Stats.2002, ch. 180 (A.B.886).) Section 726, subdivision (c) now reads as it appears in footnote 2, ante.
[7]  See footnote 5, ante.
[**]   See footnote *, ante.


307 F.3d 1364
FLORIDA POWER & LIGHT COMPANY, Consolidated Edison Company of New York, Inc., Empresa Nacional Del Uranio, S.A., IES Utilities, Inc., Niagara Mohawk Power Corporation, Pennsylvania Power and Light Company, Wisconsin Electric Power Company, Duke Energy Corporation, and Virginia Electric and Power Company, Plaintiffs-Cross-Appellants,v.UNITED STATES, Defendant-Appellant.
No. 02-5012.
No. 02-5023.
United States Court of Appeals, Federal Circuit.
October 4, 2002.

Alex D. Tomaszcuk, Shaw Pittman LLP, of McLean; VA, argued for plaintiffs-cross appellants. Of counsel on the brief were John H. O'Neill, Jr., Michael G. Lepre, and Daniel S. Herzfeld, Shaw Pittman LLP, of Washington, DC.
James G. Bruen, Jr., Special Litigation Counsel, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellant. With him on the brief were Robert D. McCallum, Jr., Assistant Attorney General; J. Christopher Kohn, Director; and Matthew J. Troy, Attorney. Of counsel on the brief was Marc E. Kasischke, Attorney, Office of General Counsel, Department of Energy, of Washington, DC.
Before MICHEL, CLEVENGER, and BRYSON, Circuit Judges.
BRYSON, Circuit Judge.

1
The United States government has long performed uranium enrichment for domestic and foreign utility companies. Uranium enrichment consists of converting natural uranium into enriched uranium suitable for use in nuclear power plants. Each of the plaintiff utilities entered into an enrichment contract with the United States before September 1, 1992. Until July 1, 1993, the contracts were administered and performed through the Department of Energy ("DOE").

2
Under the contracts, the utilities agreed to purchase a fixed percentage of their enriched uranium needs from the United States. The contracts specified how the enriched uranium would be provided and how the utilities would be charged. The price for the enrichment services was to be "determined in accordance with the established DOE pricing policy for such services." The contracts defined "established DOE pricing policy" as "any policy established by DOE that is applicable to prices or charges in effect at the time of performance of any services under this contract."

3
The price DOE could charge for enrichment services was constrained by section 161(v) of the Atomic Energy Act, which specified that "any prices established under this subsection shall be on a basis of recovery of the Government's costs over a reasonable period of time." 42 U.S.C. § 2201(v) (1988). DOE pricing policy followed that statutory formula. See 10 C.F.R. § 762.5 (1994) (DOE's charges for enrichment services established "on a basis that recovers appropriate Government costs over a reasonable period of time"). DOE's price was expressed as a dollar amount for each unit of enrichment services, referred to as a "Separative Work Unit" ("SWU"). For Fiscal Year 1993, the price charged for enrichment services was $125 per SWU, which was near the ceiling price under the enrichment contracts.1

4
The Energy Policy Act of 1992 amended the Atomic Energy Act and made significant changes in the government's uranium enrichment services program. The new statute established the United States Enrichment Corporation ("USEC") to take over the enrichment services from DOE. All existing uranium enrichment contracts, including those with the plaintiff utility companies, were transferred to USEC as of July 1, 1993. 42 U.S.C. §§ 2297b-14(e), 2297c(b)(1) (1994).

5
The Energy Policy Act also established the Uranium Enrichment Decontamination and Decommissioning Fund, which was to pay "[t]he costs of all decontamination and decommissioning activities of [DOE]," 42 U.S.C. § 2297g-2(b), and "[t]he annual cost of remedial action," 42 U.S.C. § 2297g-2(c). The Decontamination and Decommissioning Fund is supported in part by a special assessment of up to $150 million collected annually from domestic utilities that purchased enrichment services from DOE between 1945 and October 23, 1992. The first annual assessment was for Fiscal Year 1993.

6
During the transition period between October 24, 1992, when the Energy Policy Act was enacted, and July 1, 1993, when USEC began administering the enrichment services contracts, DOE continued performing enrichment services under the contracts. In 1996, the utilities filed suit, asserting that during the transition period DOE had improperly included decontamination and decommissioning costs in its contract prices. The utilities contended that recovering those costs was improper because DOE had separately recovered those costs through the Fiscal Year 1993 special assessment. The Court of Federal Claims dismissed the suit on res judicata grounds, Fla. Power & Light Co. v. United States, 41 Fed. Cl. 477 (1998), but we reversed and remanded, Fla. Power & Light Co. v. United States, 198 F.3d 1358 (Fed.Cir.1999).

7
On remand, the utilities abandoned their claim that DOE had improperly collected decontamination and decommissioning costs during the transition period, but they asserted that DOE's price for enrichment services improperly included approximately $1.5 billion in two cost components: (1) what the trial court termed "remedial action costs," i.e., the costs for cleaning up contamination from the DOE enrichment facilities, and (2) the costs of disposing of depleted uranium tails. Then, in February 2001, the utilities argued for the first time that the government had improperly included two other cost components in calculating the price of enrichment services during the transition period: (1) $773 million in imputed interest on the Gas Centrifuge Enrichment Project ("GCEP"), and (2) $394 million in costs that, according to the plaintiffs, related only to the production of high-assay uranium for governmental (mostly military) applications.

8
After trial, the Court of Federal Claims held that the government had improperly included the remedial action and depleted uranium costs in the price of enrichment services, and it awarded damages to the utilities in the amount that those costs added to the price of enrichment services during the transition period. The court refused to grant recovery on the imputed interest and high-assay uranium claims, however, on the ground that the utilities had delayed unreasonably in presenting those claims and that the government had been prejudiced by the delay. Finally, the trial court held that the Contract Disputes Act did not apply to the contract, and that the utilities therefore were not entitled to recover interest from the date their claims were submitted.

9
The government appeals from the judgment awarding damages for breach of contract. The utilities cross-appeal the court's rulings that the contracts are not covered by the Contract Disputes Act and that the utilities are barred from recovering on two theories because those theories were raised too late.

10
* The government has not appealed the trial court's finding that it improperly included the remedial action and depleted uranium costs in the price for enrichment services, but it challenges the award of damages to the utilities. According to the government, the utilities should not have been awarded damages for two reasons: (1) because DOE was not limited to a cost-recovery basis for pricing its enrichment services during the transition period, and (2) because the price for the government's enrichment services would have been the same even if the costs that the trial court disallowed had been omitted in calculating the price of the enrichment services.

11
The trial court correctly rejected the first argument. Even though the statute that required pricing to be based on cost recovery was repealed in October 1992, the contract required DOE to determine charges for enrichment services "in accordance with the established DOE pricing policy for such services," and the DOE regulations that set forth DOE's pricing policy were still in effect throughout the transition period. The fact that the statute that required DOE to employ that pricing policy had been repealed does not alter the fact that the policy remained in place until the enrichment operation was transferred to USEC on July 1, 1993. The government therefore cannot prevail on its contention that throughout the transition period DOE had no pricing policy and the only constraint on its pricing decisions was the contractual ceiling price.

12
The government's second argument has more force. Under its established pricing policy, DOE was required to price enrichment services so as to recover "appropriate government costs over a reasonable period of time." 10 C.F.R. § 762.5 (1988). As of the beginning of Fiscal Year 1993, there was a large cumulative unrecovered loss from DOE's operations. The government argues that even after eliminating the remedial action and depleted uranium costs, there was still a large cumulative unrecovered loss that DOE was entitled to recover through enrichment charges. Accordingly, the government contends that even without including the environmental remediation and depleted uranium costs, the price for enrichment services during the transition period would have remained at the Fiscal Year 1993 price of $125 per SWU.

13
The trial court did not accept the government's legal theory. In response to the government's argument that costs other than remedial action and depleted uranium costs would have justified a price of $125 per SWU during the transition period, the court stated that "[t]o sanction an approach that allows DOE to take the position, with the full benefit of hindsight, that a substitute hypothetical analysis could have resulted in the same contract price anyway does violence to the established DOE pricing policy. Defendant cannot play a shell game with cost recovery."

14
The court's analysis does not fully respond to the government's argument as to remedy. The government's argument is not that it is entitled to engage in a "substitute hypothetical analysis." Instead, it argues that because the ceiling price was well below the total amount of DOE's appropriate costs, eliminating the costs that the court ruled inappropriate would not have reduced DOE's appropriate costs below the ceiling price and thus would not have resulted in a reduction of the price DOE was authorized to charge. On that issue, the government is entitled to a ruling from the trial court as to whether DOE had sufficient appropriate costs to justify a price at or near the ceiling price. If the court agrees with the government that DOE had such appropriate costs that could properly be included in the enrichment price during the transition period, the improper inclusion of remedial action and depleted uranium costs would not have caused the utilities any injury and thus would not support an award of damages.

15
The utilities assert that there is no need for a remand because the trial court has already rejected the government's factual submission that there were other appropriate government costs that would have allowed the government to keep the price at or near the ceiling price. We disagree. The trial court did not make any findings as to the government's factual argument that there were other appropriate costs that would justify the price charged during the transition period. We therefore remand for the trial court to determine whether the total amount of the appropriate government costs that could properly be considered in setting the price for Fiscal Year 1993 would justify the price of $125 per SWU, and if a lower price would have been required, how much lower that price would have been.

16
An issue that is likely to arise on remand is whether the government can justify the transition period price based on the cumulative unrecovered losses in the enrichment operations account, to the extent that those losses constitute "appropriate costs" within the meaning of the DOE pricing policy. The utilities argue that it would be inconsistent with DOE's established pricing policy to set the price during the transition period to recover all the losses that had accumulated in the program over many years. The trial court correctly noted that the DOE pricing policy requires DOE to calculate its price on a basis that recovers appropriate costs "over a reasonable time." The court, however, did not directly address the issue of what a reasonable time would be in the context of the transition period and the termination of DOE's responsibility for administering the enrichment contracts as of July 1993. The parties did not brief that issue to us, and it is of sufficient complexity that we believe the best course is to leave the matter to the trial court for decision on remand.

II

17
The trial court found that the utilities acted belatedly in raising their claims as to the costs for high-assay uranium and imputed interest on the GCEP, and that the government was prejudiced by the delay. The utilities argue that they raised those two claims at a reasonable time under the circumstances, and they contend that the government did not establish that it was prejudiced by the delay.

18
The trial court pointed out that the utilities obtained the discovery materials on which they based the two disputed claims in May 2000, but did not raise their claims as to those two cost items until February 26, 2001, less than two months before trial. Based on observations of the trial proceedings, the trial court concluded that "[o]n the short notice that was provided, government counsel could not possibly be prepared to challenge the deductive analysis used by [plaintiffs' expert] in developing an amount that represented High Assay Costs." The court likewise concluded that the prejudice to the government on the imputed interest claim was not purged at trial, despite government counsel's able cross-examination of the plaintiff's expert. The court's conclusions were based on its first-hand familiarity with the pretrial and trial proceedings.

19
The trial court did not abuse its discretion in refusing to address the utilities' challenges to the imputed interest and high-assay uranium costs. The trial court was uniquely well situated to assess the justification for the delay and the extent of the prejudice to the government, and the court's assessment of those factors was reasonable. We therefore reject the utilities' argument that it was error for the court to refuse to address the merits of their challenges to the imputed interest and high-assay uranium cost claims based on the delay in raising them.

20
While we hold that the utilities are not entitled to affirmative relief on those claims in the current posture of the case, their rights with respect to those claims may be affected by the proceedings on remand. In raising the issue of remedy in its own appeal, the government apparently relies on the imputed interest and high-assay uranium costs as "appropriate costs" that, together with other costs, would have justified DOE's price of $125 per SWU during the transition period even without including the remedial action and depleted uranium costs. To the extent that the government on remand relies on the imputed interest and high-assay uranium costs as part of its challenge to the judgment in favor of the utilities, it will be necessary for the court to rule on the merits of those issues. If the court does so, and if it rejects the government's argument as to the appropriateness of those costs in whole or in part, the court's ruling not only would affect the government's argument as to remedy, but also would entitle the utilities to an adjustment of the underlying judgment in their favor. The government cannot seek an adjudication of the appropriateness of those costs for its own purposes while preventing the utilities from obtaining the benefits of that adjudication if it is favorable to them. Whether additional trial proceedings should be conducted to permit further development of the issues of imputed interest, high-assay uranium costs, and other claimed appropriate costs is a matter for the trial court to decide in the exercise of its discretion.

III

21
Prior to trial, the government argued that the court lacked jurisdiction to hear this case under either the Contract Disputes Act ("CDA"), 41 U.S.C. §§ 601-613, or the Tucker Act, 28 U.S.C. § 1491(a). The trial court held that it had jurisdiction under the Tucker Act, but that it lacked jurisdiction under the CDA. The utilities appeal the court's ruling with respect to the CDA. The issue is important because the CDA would permit the utilities to recover interest running from the date their claims were submitted, while the Tucker Act would not.

22
The utilities argue first that the CDA should apply because the contract itself provides that "[t]his contract is subject to the Contract Disputes Act of 1978." Contractual language, however, cannot confer jurisdiction. See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701-02, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (jurisdiction is "limited to those subjects encompassed within a statutory grant of jurisdiction.... [N]o action of the parties can confer subject matter jurisdiction upon a federal court"); RHI Holdings, Inc. v. United States, 142 F.3d 1459, 1461 (Fed. Cir.1998); Gould v. Control Laser Corp., 866 F.2d 1391, 1393 (Fed.Cir.1989). The reference to the CDA in the contract therefore did not give the trial court CDA jurisdiction over the utilities' claims if it was not otherwise authorized.

23
The utilities next argue that in our previous decision in this case, Florida Power & Light Co. v. United States, 198 F.3d 1358 (Fed.Cir.1999) ("Florida Power I"), we applied the CDA to the enrichment contracts and that the trial court was bound by that decision. The trial court correctly recognized that we did not directly address the question of CDA jurisdiction in Florida Power I. The argument in that case centered on whether the utilities' failure to adhere to the CDA dispute process barred them from presenting certain claims as a matter of res judicata or collateral estoppel. Although we referred to the CDA, our discussion concerned whether the utilities were barred by the doctrine of res judicata, and the question whether the trial court had jurisdiction under the CDA was neither raised nor decided.

24
When a court does not address the question of jurisdiction, the court's decision is not binding on the jurisdictional issue. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 119, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Lowry v. Int'l Bhd. of Boilermakers, Iron Shipbuilders & Helpers of Am., 259 F.2d 568, 575 (5th Cir.1958). The trial court was therefore correct that our prior decision did not compel it to apply the CDA to the contracts before it.

25
The CDA applies to contracts entered into by an executive agency for:

26
(1) the procurement of property, other than real property in being;

27
(2) the procurement of services;

28
(3) the procurement of construction, alteration, repair or maintenance of real property; or

29
(4) the disposal of personal property.

30
41 U.S.C. § 602(a). By its terms, the CDA does not apply to the provision of services by the government, but only to the procurement of such services. The trial court found that the government had contracted to furnish enrichment services and that the contract therefore did not fall within the scope of the CDA. The utilities argue that the enrichment contracts actually involved the government in the procurement and disposal of personal property and that the contracts therefore fall within the CDA.

31
To determine whether the CDA applies to the enrichment contracts, it is necessary to understand how the enrichment process functioned under the contracts. The contracts required the utilities to furnish the government with unenriched or natural uranium, known as "feed material." Feed material typically consists of 0.7 percent U235 isotope, with the remainder consisting of the U238 isotope. Under the contracts, title to the feed material passed to the government at the time of delivery.

32
In the uranium enrichment process, feed material is heated until it becomes a gas. The gas is then pressurized and forced past porous metal barriers. The lighter U235 diffuses through the barriers more readily than the heavier U238. The separation factor is very small, but by repeating the diffusion process over and over, the uranium can be enriched to a value chosen by the customer utility, generally until the U235 isotope constitutes 3-5 percent of the uranium. Once the uranium has reached the desired enrichment level, the gas is cooled until it becomes a solid. The end products are enriched uranium, which is used for fuel, and depleted uranium tails.

33
The enrichment contracts provided that when DOE delivered the enriched uranium to the utility, the utility would take title to the enriched uranium. The utility was given the option of taking title to the tails, but apparently the utilities never exercised that option, and it was left to DOE to dispose of the depleted tails.

34
The contracts provided that the utilities would be charged for the enrichment services based on the amount of energy needed to enrich the uranium to the desired level. The SWUs, on which the enrichment price was based, measured the amount of energy required for the enrichment of each utility's uranium. The number of SWUs needed to enrich uranium to a given level was not constant, but varied depending on the amount of feed material used. The record at trial reflects that when the cost of feed material was low relative to the cost of electricity, DOE could use more feed material and less energy to produce the same amount of enriched uranium. Although that method produced more residue, and that residue contained U235 that could have been removed with more effort, the method produced the desired amount of enriched uranium at lower cost to DOE.

35
The contracts also allowed the utilities to make a similar tradeoff. If a utility company had access to inexpensive uranium, it could provide DOE with a larger amount of feed material and instruct DOE to extract less of the U235 from the material, thus ensuring that DOE would use fewer SWUs to produce the desired amount of enriched uranium. Because the utility was charged based on the number of SWUs necessary to enrich the uranium to the chosen level, the cost to the utility was lower.

36
According to the utilities, the enrichment contracts define a transaction with four separate components: (1) the delivery of feed material to the government; (2) the enriching process carried out by DOE; (3) the delivery of enriched uranium to a utility; and (4) the retention of the tails. The utilities view the first component of the transaction as the procurement of property by the government, and thus an act that falls within the scope of the CDA. They point out that title to the feed material passed to the government at the time of delivery, and that the feed material provided by the customer utility was commingled with feed material supplied by other customers and by the government itself. The utilities admit that the second component, taken in isolation, would amount to the provision of services by the government, beyond the scope of the CDA. They view the third component as the disposal of property by the government that falls within the CDA. Once again, the utilities emphasize that title to the uranium was transferred, this time from the government to the customer, and that the enriched uranium delivered to the customer was not necessarily produced from the particular feed material it delivered. Finally, the utilities assert that because the customers did not exercise their option to take title to the tailings, the fourth component of the transaction is best viewed as another procurement of property by the government. Thus, the utilities argue that in light of Bonneville Associates v. United States, 43 F.3d 649 (Fed.Cir.1994), and Forman v. United States, 767 F.2d 875 (Fed.Cir.1985), the CDA applies to the contract because it applies to at least a portion of the contract.

37
The government responds that the contracts are for the provision of enrichment services, as the contract language states. See Art. II ("This [contract] represents a 30-year obligation for the provision of enrichment services by DOE."); Art. III.1.a ("DOE shall furnish to the Customer during the term of this contract, and the Customer shall purchase from DOE ... the Customer's requirements for enrichment services."); Art. IV.1 ("The charges to be paid to DOE for enrichment services provided to the Customer...."). The government contends that transfer of title during the time the uranium was being enriched is not dispositive, noting that we have referred to the temporary title transfer as a "technicality." Commonwealth Edison Co. v. United States, 271 F.3d 1327, 1355 (Fed.Cir.2001) (en banc).

38
It seems clear that if the government purchased natural uranium directly from a third party, enriched the uranium, and sold it to the customer utilities, the contracts would be for the disposal of personal property and would be covered by the CDA. It seems equally clear that if the government simply enriched each utility's uranium for a fee, it would be providing a service, not disposing of personal property.

39
In light of the evidence that DOE used feed material from other customers, and sometimes its own feed material, to fulfill a particular enriched customer's order of enriched uranium, this case does not fall neatly into either the above categories, but it is closer to the latter. The nature of the contractual pricing scheme, in particular, persuades us that the transaction is properly characterized as a service rather than a sale. Because the government's fee for the enrichment service was based on the number of SWUs needed to produce the enriched uranium, two utilities could obtain the same amount of enriched uranium but pay significantly different prices. A utility that chose to deliver more feed material to the government would obtain the same amount of enriched uranium but at a lower price than another utility that delivered less feed material, because the enrichment process in the second case would require more SWUs. In light of the pricing mechanism, the transaction is best characterized as a service provided by the government (the provision of a set amount of enrichment service for a particular price) rather than as a purchase or sale of personal property (the provision of a set amount of enriched uranium for a particular price).

40
The fact that DOE would not necessarily use a particular utility's feed material to produce that utility's enriched uranium is simply a consequence of the fact that feed material is fungible and there would be no reason to segregate it in the enrichment process. The fact that DOE would sometimes add its own feed material to the process was simply a way for DOE to reduce its costs for the enrichment service if the market price of uranium was favorable. Neither of those features alters the essential nature of the transaction as the provision of enrichment services for a price.

41
The Forman and Bonneville cases on which the utilities rely are inapposite. In Forman, the court held that a contract creating a leasehold interest in property was subject to the CDA because the act of entering into a lease does not constitute "the procurement of ... real property in being" as that phrase is used in the CDA. The court in Forman further noted that the lease was part of a larger construction agreement to which the CDA plainly applied. It explained that Congress could not have intended to create CDA jurisdiction over the contractor's obligations on the construction portion of the agreement but not over the government's obligations on the lease portion of the agreement. 767 F.2d at 879. Bonneville involved a contract that related partly to the acquisition of real property and partly to the repair and alteration of the property. Although the first portion of the contract, standing alone, would not have fallen within the CDA, the second would. Noting that the dispute in the case related to the repair and alteration portion of the contract, the court held that the case fell within the reach of the CDA. 43 F.3d at 654.

42
None of the analysis in Forman and Bonneville is of any assistance to the utilities because this is not a case in which one portion of the contract is subject to the CDA and another portion is not. Contrary to the utilities' contention, the enrichment contracts are properly viewed as involving a single transaction, not separable transactions, as was the case in Bonneville. As we have noted, the transfers of title to the uranium, on which the utilities rely for their analysis, do not affect the true nature of the transaction. Because each utility obtained the enriched product of its uranium (or other fungible uranium) after the enrichment process was completed, the title transfer had no effect other than temporarily changing the legal status of the uranium during the enrichment process. Thus, the enrichment contracts are best characterized as contracts for services; the trial court therefore correctly held the CDA inapplicable.

43
The utilities' final argument is that even if the CDA does not apply, they are entitled to recover interest running from the date their claims were submitted because paragraph 7(h) of the enrichment contracts so provides. Although the utilities raised that issue belatedly, this case is being remanded to the trial court for further proceedings, and if a final judgment is entered in the utilities' favor, they can argue to the trial court at that time that they are entitled to interest based on paragraph 7(h) of the enrichment contracts. The fact that they relied on the CDA rather than the contract in seeking interest on the first judgment does not preclude them from asserting a contractual right to interest if there is a new judgment on remand.

Vacated and Remanded.

Notes:

1
 The contractual ceiling price for Fiscal Year 1993 was $125.34. Neither party has suggested that there is any legal significance to the 34 cent difference between the actual price and the ceiling price; rather, they have both treated the $125 price as equivalent to the ceiling price, so we do the same


234 So.2d 883 (1970)
CENTERS, INC., a Corporation
v.
Guy GILLILAND et al.
6 Div. 365.
Supreme Court of Alabama.
April 30, 1970.
*884 Dominick, Roberts & Davidson, Tuscaloosa, for appellant.
MERRILL, Justice.
This appeal is from a decree permanently enjoining appellant, Centers, Inc., from using three lots or parts of them as parking lots, when the lots had been purchased by it subject to restrictions.
Mr. and Mrs. Guy Gilliland owned approximately twelve acres of land in the Alberta City area of Tuscaloosa and, in 1946, divided the land into a residential subdivision of forty-six lots, known as Durrett Grove, and duly recorded certain restrictions on the use of the land. The pertinent restrictions are as follows:
"3. No business of any kind, character or description can be carried on on any lot or in any building constructed on any lot.
"7. That no noxious or offensive trade or activity shall be carried on upon any lot nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.
"9. These covenants are to run with the land and shall be binding on all parties and all persons claiming under them until November 5, 1971.

"10. If the parties hereto, or any of them or their heirs or assigns, shall violate or attempt to violate any of the covenants herein it shall be lawful for any other person or persons owning any real property situated in said development or subdivision to prosecute any proceedings at law or equity against the person or persons violating or attempting to violate any such covenant and either to prevent him or them from so doing or to recover damages or other dues for such violation."
Various individuals purchased the Durrett Grove lots. In late 1960, appellant purchased two vacant lots and a part of another vacant lot from the then owners. The deeds given to appellant stated that the property was subject to the said restrictions. After clearing this land, appellant constructed a store building, which included three stores leased for use as a grocery store, shoe store and a fabric outlet. A common parking area was paved and spaces were marked off in front of the building.
The Durrett Grove lots, owned by appellant and subject to the restrictions, were not paved at the time of the paving of the common parking area. After appellant acquired the Durrett Grove lots, the trees on the lots were trimmed by the Alabama Power Company. Harmon B. Looney, the president of appellant corporation, testified that the trees were trimmed so closely that it was decided they should be removed. The wind began to blow dust from the exposed lots into the Durrett Grove subdivision. After some of the residents complained, appellant paved the exposed lots at a cost of $2,667.30, built sidewalks and erected a screen fence. Electric lights were installed on metal poles and shades were placed to shield the light from the houses in Durrett Grove.
Complainants, residents of the Durrett Grove subdivision, brought this suit seeking an injunction to prohibit the appellant from using the property as a parking lot for the general public in violation of the restrictive covenants placed upon the property. They alleged that the use of the land had decreased their property values because of the glaring lights, dust, fumes and noise, and that many automobiles are not removed from the land until long after the stores are closed. Further, it was alleged that the use of the land by appellant or by its tenants is such as to create a nuisance insofar as complainants are concerned.
*885 Appellant denied the allegations of the bill, and the cause was heard ore tenus by the court. Guy Gilliland, one of the complainants, testified that there are fourteen parking spaces marked off on the lots subject to the restrictions, and that he has counted as many as fifty-three cars at one time parked on the restricted lots. Appellant offered testimony that the character of the general area around Durrett Grove has changed from its fundamentally residential state when the restrictions were imposed in 1946.
The final decree granted the relief prayed for, restrained appellant from allowing its tenants, their employees and the general public to park on the lots until the expiration date set by the covenants, which was November 5, 1971.
Appellant's motion for a rehearing was overruled and an injunction bond was fixed at $750.00. Notice of appeal was filed on July 25, 1966, and upon posting of the bond, the injunction was suspended pending the outcome of this appeal.
No brief was filed for appellees and no argument was presented when the cause was orally argued for appellant and submitted to this court.
Two grounds of error are relied upon by appellant as reason for reversal of the decree.
In assignments of error 3, 4, 7, 9 and 11, appellant contends that the evidence is insufficient to show that a business was conducted on the Durrett Grove property in violation of the restrictive covenants.
The restrictions specifically state that "No business of any kind, character or description can be carried on any lot or in any building constructed on any lot." A case in point is Bennett v. Consolidated Realty Co., 226 Ky. 747, 11 S.W.2d 910, 61 A.L.R. 453, wherein a similar restriction was placed on land adjacent to a commercial enterprise, a restaurant and dance hall. The owner sought to use the adjoining land to extend his parking lot, but the court held that such a use violated the restrictive covenant, stating:
"The use of the lots by Bennett's patrons was plainly a use for business purposes. It was necessary to have a parking place for these automobiles. The parking place was an incident to the roadhouse, without which the roadhouse could not have been successfully operated under the circumstances. Bennett was carrying on the business of operating the roadhouse; and, in providing parking places for his patrons, he was simply performing an incident of that business. While such provisions in deeds are not construed to create restrictions beyond the fair and natural meaning of the words used, read in the light of the circumstances under which they were used, they will be enforced according to their fair and natural meaning, in the absence of fraud or mutual mistake. To hold that no trade or business was permitted on these lots would be to refuse to enforce the provision according to the plain meaning of the common words of everyday speech in which it is expressed; for such a use as Bennett was making of the property would be especially objectionable in a residential section, and the restriction was inserted to protect the subdivision for residential purposes."
Here, there is sufficient evidence that the property was used as a part of appellant's parking lot. Harmon B. Looney, the president of appellant corporation, testified that customers of his tenants parked on the property. In brief, appellant states: "We concede that the evidence introduced shows that there are some lines for parking on the western portion of these lots." Even though some people might have parked on the property while not shopping in the stores owned by appellant, a parking lot was a necessary feature of such retail businesses. The nature of the property, being paved, lighted, partially marked off and contiguous to the original parking lot served as an invitation for customers to *886 park there. We cannot say that the trial judge erred in his determination that the land was used for business purposes. Having reached this conclusion, we find it unnecessary to consider whether the use of the land violated restriction number seven, against offensive activities which may become a nuisance.
In assignment 8, appellant contends that the injunctive relief should not have been granted because the neighborhood has changed in character from residential to commercial.
While the general neighborhood has changed, no evidence was presented concerning any change within the twelve-acre subdivision. It remains utilized exclusively for residential purposes in conformity with the restrictions. Those who have been led to buy lots or build homes in that locality by reason of the restrictive covenants are entitled to have their property preserved for the purpose for which they purchased it. Higdon v. Jaffa, 231 N.C. 242, 56 S.E.2d 661. The changes around the subdivision are not so great as to render the enforcement of the covenants inequitable or unreasonable. Since the original purposes of the covenants can be effectuated, we think that changes outside of the restricted area should not be allowed to defeat the purposes of the restriction. [See Chuba v. Glasgow, 61 N.M. 302, 299 P.2d 774; Morgan v. Matheson, 362 Mich. 535, 107 N.W.2d 825; Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943].
The trial court heard the evidence ore tenus and the finding of facts and the decree of the trial court in such cases will not be disturbed on appeal unless palpably and plainly wrong. Howard v. Harrell, 275 Ala. 454, 156 So.2d 140; Meador v. Meador, 255 Ala. 688, 53 So.2d 546.
Appellant purchased the property fully cognizant of the restrictive covenants, which will remain in effect until November 5, 1971. Appellant has not presented any reversible error in the trial court's decree.
This case was reassigned to the author of this opinion on April 9, 1970.
Affirmed.
LAWSON, HARWOOD, MADDOX and McCALL, JJ., concur.


21 F.3d 1111
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Rufus AYLWIN, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 93-55920.
United States Court of Appeals, Ninth Circuit.
Submitted April 20, 1994.*Decided April 22, 1994.

Before:  POOLE, BEEZER and T.G. NELSON, Circuit Judges.

1
MEMORANDUM**

2
Rufus Aylwin, a federal prisoner, appeals pro se the denial of his 28 U.S.C. Sec. 2255 motion.  In 1967, Aylwin pleaded guilty to importation of marijuana and was sentenced to six years imprisonment.  He claimed in his Sec. 2255 motion, and contends on appeal, that (1) his 1967 conviction is unconstitutional and although already served, should be vacated, and (2) the Parole Commission incorrectly relied upon the 1967 conviction to increase the sentence he must serve before being eligible for parole on his 1989 conviction.  We have jurisdiction under 28 U.S.C. Sec. 2255.  We review de novo,  United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir.1990), and affirm.

3
Aylwin and his brother were arrested in El Centro, California on August 14, 1967, and indicted for smuggling marijuana.  Aylwin pleaded guilty, and the District Court for the Southern District of California sentenced him to an indeterminate sentence of up to six years under the Federal Youth Corrections Act.  He was paroled on July 24, 1968.  His parole terminated on October 18, 1973, whereupon the Parole Commission issued a certificate setting aside the conviction.  On April 21, 1989, the District Court for the Western District of Washington sentenced Alywin to thirteen years imprisonment for his February 1989 conviction for the importation of marijuana.  On December 11, 1992, Aylwin filed a Sec. 2255 motion to vacate his sentence imposed following the 1967 conviction.

4
First, Aylwin contends that the district court erred in denying his Sec. 2255 motion based upon its finding that he is no longer in custody for the conviction he is challenging.  This contention lacks merit.

5
Relief under 28 U.S.C. Sec. 2255 is not available to a defendant who has completed his sentence and is released from custody for the conviction he is challenging.  28 U.S.C. Sec. 2255;   Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987).  Custody is measured at the time the petition is filed.   Tyars v. Finner, 709 F.2d 1274, 1279 (9th Cir.1983).

6
When Aylwin filed his Sec. 2255 motion on December 11, 1992, he had been out of custody for the 1967 conviction for approximately nineteen years.   See Tyars, 709 F.2d at 1279.  Therefore, the district court did not err by finding that Aylwin had completed his sentence, been released from custody and was ineligible for Sec. 2255 relief.   See Hirabayashi, 828 F.2d at 604.1

7
Second, Aylwin contends that the Parole Commission erred in relying on his 1967 conviction in determining his eligibility for parole on the 1989 sentence.  He must address this 28 U.S.C. Sec. 2241 claim to the district court with personal jurisdiction over his custodian.  See 28 U.S.C. Sec. 2241;   United States v. Young, 936 F.2d 1050, 1052 (9th Cir.1991) (per curiam) (court will determine true nature of motion;  nomenclature assigned by movant is not controlling).

8
AFFIRMED.

*
 The panel unanimously finds this case suitable for decision without oral argument.  Fed.R.App.P. 34(a);  9th Cir.R. 34-4

**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1
 Post-sentence relief from the collateral consequences of an unconstitutional conviction is available via a coram nobis petition.   United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir.1989).  An appeal from the denial of a writ of error coram nobis must be filed within ten days.   Yasui v. United States, 772 F.2d 1496, 1499 (1985)
The district court indicated in its April 7, 1993 order that even if the Sec. 2255 motion were reviewed as a writ of error coram nobis, it would be denied.  Aylwin appealed from this decision on May 24, 1993.
The appeal is beyond the ten day limit for an appeal from a denial of a writ coram nobis.  See id.   Therefore, even if his appeal were treated as an appeal from the denial of a coram nobis petition, Aylwin is not entitled to relief because his appeal is untimely.