United States v. Eidum

474 F.2d 581, 1973 U.S. App. LEXIS 11829

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 6, 1973
• Docket: No. 72-2286
• Status: Published

Opinion

CONTI, District Judge:

Kenneth W. Eidum pleaded guilty to violation of 18 U.S.C. § 2312 (Interstate Transportation of a Stolen Motor Vehicle). The trial judge sentenced him to three years. Eidum moved for modification of sentence under 28 U.S.C. § 2255, which motion was denied. He appeals to this court from that denial.

This court has held that when:

“There is a reasonable probability that the defective prior convictions may have led the trial court to impose a heavier sentence than it otherwise would have imposed . . . we are unable to conclude that the reception of such evidence was harmless beyond-a reasonable doubt.” United States v. Tucker, 431 F.2d 1292, 1294 (9th Cir. 1970) affirmed 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1971).

In the instant case, the trial judge, in his order denying appellant’s Motion for Modification of Sentence, stated:

“The three convictions to which defendant refers are a very insignificant part of a very long criminal record.”

This court will not refute the judge’s own estimation of the deleterious impact of the prior convictions on his determination of sentence. The record shows on its face that the judge did not consider those convictions in imposing- sentence. Therefore, we affirm.