217 F2d 540 Freyta v. United States

217 F.2d 540

Ambrosio FREYTA, Appellant,


UNITED STATES of America, Appellee.

No. 4992.

United States Court of Appeals Tenth Circuit.

November 26, 1954.

Ambrosio Freyta filed a brief pro se.

James W. Heyer, Asst. U. S. Atty., Denver, Colo. (Donald E. Kelley, U. S. Atty., Denver, Colo., was with him on the brief), for the United States.

Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.


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An information containing six counts was filed against Freyta in the United States District Court for the District of Colorado. Certain of the counts charged violations of 26 U.S.C.A. § 2591(a) and the others charged violations of 26 U.S. C.A. § 2593(a). Freyta entered a plea of guilty to each count of the information and was sentenced to the custody of the Attorney General for a period of 20 months on each of counts 1 to 5, inclusive, to run concurrently. On count 6 imposition of sentence was suspended and he was placed on probation for a period of one year, to commence at the expiration of the terms of imprisonment imposed on counts 1 to 5, inclusive.


Freyta served the 20-months' sentence on the first five counts and was released on September 2, 1952. On August 20, 1953, a warrant was issued for his arrest for violation of his probation. It was served on August 24, 1953. On September 23, 1953, the District Court, after a hearing, adjudged that the order of probation be revoked and that Freyta be committed to the custody of the Attorney General for a period of four years on count 6. Freyta has appealed from the denial of a motion to vacate the four-year sentence, filed by him under 28 U.S. C.A. § 2255.


The acts of Freyta upon which the revocation of probation was predicated occurred during the one-year probationary period. The warrant was issued and served during the probationary period. Under the provisions of the Probation Act, 18 U.S.C.A. § 3653, the court had jurisdiction to issue the warrant and after hearing for cause to revoke the probation and impose the sentence on count 6.


The fact that the court, in placing Freyta on probation on count 6, did not expressly say that imposition of sentence was suspended is not material. The record clearly shows that the court did suspend the imposition of sentence on count 6 and that it placed Freyta on probation on that count.