Douglas Lutry Smith v. United States

Fifth Circuit

Douglas Lutry Smith v. United States

565 F.2d 378, 1978 U.S. App. LEXIS 13198

CourtCourt of Appeals for the Fifth Circuit

DecidedJanuary 4, 1978

Docket77-1827

StatusPublished

Cited by4 cases

This text of 565 F.2d 378 (Douglas Lutry Smith v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Douglas Lutry Smith v. United States, 565 F.2d 378, 1978 U.S. App. LEXIS 13198 (5th Cir. 1978).

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Opinion

PER CURIAM:

Petitioner appeals from denial of a motion to vacate his sentence, arguing that he was entitled to an evidentiary hearing to prove that certain information as to prior convictions and arrests on his FBI rap sheet *379 was false, information he alleges to have been used in his sentencing.

According to the order of denial, the district court did not have the FBI rap sheet before it, so that the premise upon which petitioner bases his claim is wrong. More importantly, the district court found that “[i]f there is incorrect information regarding the Defendant on an FBI rap sheet it had nothing whatever to do with the sentence imposed by this Court.” This holding means that the sentence would have been the same even if convictions were taken into consideration but later found to be invalid.

Had the rap sheet information been considered, the proper disposition would be for the court to determine if the sentence would be appropriate without consideration of the convictions. If not, then an evidentiary hearing would be needed to determine the validity of the prior convictions. If the sentence would remain the same without regard to the prior convictions, no evidentiary hearing would be necessary. Such was the case here, according to the district court's order. Baker v. United States, 494 F.2d 508 (5th Cir. 1974); Lipscomb v. Clark, 468 F.2d 1321 (5th Cir. 1972).

Out of a possible maximum of 30 years imprisonment, the defendant here received five.

AFFIRMED.

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PER CURIAM:

Petitioner appeals from denial of a motion to vacate his sentence, arguing that he was entitled to an evidentiary hearing to prove that certain information as to prior convictions and arrests on his FBI rap sheet *379 was false, information he alleges to have been used in his sentencing.

According to the order of denial, the district court did not have the FBI rap sheet before it, so that the premise upon which petitioner bases his claim is wrong. More importantly, the district court found that “[i]f there is incorrect information regarding the Defendant on an FBI rap sheet it had nothing whatever to do with the sentence imposed by this Court.” This holding means that the sentence would have been the same even if convictions were taken into consideration but later found to be invalid.

Had the rap sheet information been considered, the proper disposition would be for the court to determine if the sentence would be appropriate without consideration of the convictions. If not, then an evidentiary hearing would be needed to determine the validity of the prior convictions. If the sentence would remain the same without regard to the prior convictions, no evidentiary hearing would be necessary. Such was the case here, according to the district court's order. Baker v. United States, 494 F.2d 508 (5th Cir. 1974); Lipscomb v. Clark, 468 F.2d 1321 (5th Cir. 1972).

Out of a possible maximum of 30 years imprisonment, the defendant here received five.

AFFIRMED.

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565 F.2d 378, 1978 U.S. App. LEXIS 13198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/douglas-lutry-smith-v-united-states-ca5-1978.

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