Summary
In Battaglia, the sentencing judge explicitly "stated that he was taking into consideration certain facts which he believed to be true," 478 F.2d at 854, but which the defendant later claimed were false. And in Vasquez, the sentencing judge plainly indicated his reliance on the assumptions in question.
Summary of this case from United States v. DarbyOpinion
No. 72-1754. Summary Calendar.
Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.
November 16, 1972.
Paul Henry Kidd, Robert P. McLeod, Monroe, La., for defendant-appellant.
Donald E. Walter, U.S. Atty., D.H. Perkins, Jr., Asst. U.S. Atty., Shreveport, La., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Louisiana.
Before WISDOM, GODBOLD and RONEY, Circuit Judges.
The appellant pleaded guilty to passing counterfeit bills and was sentenced to five years. He then petitioned the Court to set aside the conviction or to modify the sentence.
There is no merit to appellant's Rule 11 attack on his guilty plea so we will not disturb his conviction.
At the time of sentencing, the trial judge stated that he was taking into consideration certain facts which he believed to be true. The defendant says they are untrue. On consideration of the motion, the judge said that he would have imposed the same sentence even if the facts were untrue. Although this may be so, we think it is better to assure the defendant that the alleged untrue facts will not affect his sentence by permitting him a hearing at which he may seek to remove any lingering doubt the court may have had about the true situation. The court should then reconsider the sentence in the light of the true facts as found after hearing.
Vacated and remanded for resentencing.