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524 F.2d 920

Docket No. 75-3258

Garrison v. United States

Fifth Circuit Court of Appeals

Decided Dec. 12, 1975.

Fifth Circuit Court of Appeals · decided 1975-12-12

Cited by 3 later decisions — most recently August 1978

3 federal appellate ·

2 counsel of record

Relies on Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York · United States v. Tucker · United States v. Espinoza

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1975-12-12

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¶1Summary Calendar.*

¶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.

¶6PER CURIAM:

¶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.

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