Brantley v. United States

200 F.2d 556, 1952 U.S. App. LEXIS 2323

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 22, 1952
• Docket: 14171
• Status: Published

Opinion

HUTCHESON, Chief Judge.

Convicted on his plea of guilty of falsely making and forging a prescription for narcotic drugs, in violation of Secs. 1001 and 494 of Title 18 U.S.C.A., appellant was, on September 26, 1950, sentenced to imprisonment for five years.

On May 26, 1952, he filed a “motion for modification or correction of sentence”. Though filed purportedly under Sec. 2255 Title 28, no matter was alleged in the motion which would support relief under that section. Indeed, the motion reduced to its simplest terms, was a plea for clemency and mitigation of punishment.

The district judge denied the motion, and defendant has appealed.

Nowhere, either in his motion or in his brief, does he contest the fact or the validity of his commitment. Indeed, he acknowledges the sentence and judgment, and expressly disclaims any attack upon its validity except that, in a pre-senten'ce inquiry, the district judge considered evidence of defendant’s prior dealings with narcotics. Proceeding from that premise and upon that basis, he undertakes to support his appeal.

It being quite plain that none of the matters put forward by him furnish any ground for relief under the invoked section and that no error in the action of the district judge is made to appear, the judgment is

Affirmed.