¶2Donald Graham Garrison, pro se.
¶3Dennis R. Lewis, Asst. U. S. Atty., Roby Hadden, U. S. Atty., Beaumont, Tex., for respondent-appellee.
¶4Before COLEMAN, AINSWORTH and SIMPSON, Circuit Judges.
¶7This appeal is from the denial, without a hearing, of a 28 U.S.C., § 2255 motion to set aside sentence. The sentence is assertedly invalid because previous unconstitutional convictions were taken into account by the sentencing judge in imposing the maximum sentence on a guilty plea, as reflected by the pre-sentence report.
¶8During the imposition of sentence, the trial court remarked (page 8 of the sentencing transcript) “according to this probation report it appears that you really prefer to live in the penitentiary rather than on the outside”.
¶9This indicates that if there were any unconstitutional sentences they were taken into consideration. To settle this there should have been a hearing. See Tucker v. United States, 1972, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592; United States v. Espinoza, 5 Cir., 1973, 481 F.2d *921553, 556; United States v. Battaglia, 5 Cir., 1972, 478 F.2d 854; Russo v. United States, 5 Cir., 1972, 470 F.2d 1357, 1358-59; Lipscomb v. Clark, 5 Cir., 1972, 468 F.2d 1321, 1323; Davis v. Wainwright, 5 Cir., 1972, 462 F.2d 1354, 1356.
¶10Reversed and remanded for hearing.