U.S. v. Canales

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

S))))))))))))))Q No. 91-5644 S))))))))))))))Q

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANK CANALES,

Defendant-Appellant.

S))))))))))))))))))))))))Q Appeal from the United States District Court for the Western District of Texas S))))))))))))))))))))))))Q

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion May 7, 1992, 5th Cir., 1992, F.2d ) (July 8, 1992)

Before BROWN, GARWOOD and EMILIO M. GARZA, Circuit Judges.

GARWOOD, Circuit Judge:

We deny the Government's petition for rehearing. Our opinion

speaks only to situations in which the prior conviction is attacked

on nonforfeited grounds that, if properly established, would render

the conviction subject to federal court collateral attack as

invalid under the United States Constitution. It is not claimed

that the challenge to the 1982 conviction here falls outside of

that category. The Government recognizes that the Constitution

precludes reliance for sentencing purposes on at least certain unconstitutionally obtained prior convictions. United States v.

Tucker, 92 S.Ct. 589 (1972). The Government implies, however, that

there may be other prior convictions that, though subject to being

set aside on federal court collateral attack because of other

federal constitutional infirmities, are nevertheless not so infirm

that the Constitution precludes their consideration for sentencing

purposes. No authorities are cited that support this assertion, no

examples of such convictions are given, and it is not even

expressly argued that the 1982 conviction here falls within that

category. The Government's argument demonstrates no error in our

prior opinion and judgment.

The Petition for Rehearing is DENIED and no member of this

panel nor Judge in regular active service on the Court having

requested that the Court be polled on rehearing en banc (Federal

Rules of Appellate Procedure and Local Rule 35) the Suggestion for

Rehearing En Banc is DENIED.