Horacio Reyes v. United States

Fifth Circuit

Horacio Reyes v. United States

262 F.2d 801, 1959 U.S. App. LEXIS 4494

CourtCourt of Appeals for the Fifth Circuit

DecidedJanuary 29, 1959

Docket17517

StatusPublished

Cited by17 cases

This text of 262 F.2d 801 (Horacio Reyes 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

Horacio Reyes v. United States, 262 F.2d 801, 1959 U.S. App. LEXIS 4494 (5th Cir. 1959).

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Opinion

PER CURIAM.

This is an appeal from an order denying relief, without a hearing, on appellant’s motion to set aside a judgment sentencing him to a period of ten years in custody of the Attorney General.

Appellant’s complaint is strictly one of law and not of facts, and we hold that the trial court did not err in denying relief on the ground that the files and records showed conclusively that appellant vs as entitled to no relief.

Upon conviction of a narcotics violation as to which a minimum sentence of five years must be given for a first offender, the appellant admitted to a pri- or conviction, thus making mandatory a ten year sentence. The trial court sentenced him to seven years. Three days later, upon learning that such sentence was less than the minimum provided by *802 law, the trial court had appellant brought into court and corrected the sentence to ten years. It is from this order correcting sentence that appellant appeals.

As we have recently pointed out in Enzor v. United States, 5 Cir., 262 F.2d 172, the trial court has this power. Rule 35, F.R.Crim.P., 18 U.S.C.A. Rule 35, provides: “The court may correct an illegal sentence at any time.” Such correction does not violate the constitutional rights of a convicted person. Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818.

The judgment is affirmed.

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PER CURIAM.

This is an appeal from an order denying relief, without a hearing, on appellant’s motion to set aside a judgment sentencing him to a period of ten years in custody of the Attorney General.

Appellant’s complaint is strictly one of law and not of facts, and we hold that the trial court did not err in denying relief on the ground that the files and records showed conclusively that appellant vs as entitled to no relief.

Upon conviction of a narcotics violation as to which a minimum sentence of five years must be given for a first offender, the appellant admitted to a pri- or conviction, thus making mandatory a ten year sentence. The trial court sentenced him to seven years. Three days later, upon learning that such sentence was less than the minimum provided by *802 law, the trial court had appellant brought into court and corrected the sentence to ten years. It is from this order correcting sentence that appellant appeals.

As we have recently pointed out in Enzor v. United States, 5 Cir., 262 F.2d 172, the trial court has this power. Rule 35, F.R.Crim.P., 18 U.S.C.A. Rule 35, provides: “The court may correct an illegal sentence at any time.” Such correction does not violate the constitutional rights of a convicted person. Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818.

The judgment is affirmed.

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262 F.2d 801, 1959 U.S. App. LEXIS 4494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horacio-reyes-v-united-states-ca5-1959.

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