United States v. Michael Joseph Battaglia, Jr.

478 F.2d 854

UNITED STATES of America, Plaintiff-Appellee,
v.
Michael Joseph BATTAGLIA, Jr., Defendant-Appellant.

No. 72-1754 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Nov. 16, 1972.

Paul Henry Kidd, Robert P. McLeod, Monroe, La., for defendant-appellant.

Donald E. Walter, U. S. Atty., D. H. Perkins, Jr., Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.

Before WISDOM, GODBOLD and RONEY, Circuit Judges.

PER CURIAM:

1

The appellant pleaded guilty to passing counterfeit bills and was sentenced to five years. He then petitioned the Court to set aside the conviction or to modify the sentence.

2

There is no merit to appellant's Rule 11 attack on his guilty plea so we will not disturb his conviction.

3

At the time of sentencing, the trial judge stated that he was taking into consideration certain facts which he believed to be true. The defendant says they are untrue. On consideration of the motion, the judge said that he would have imposed the same sentence even if the facts were untrue. Although this may be so, we think it is better to assure the defendant that the alleged untrue facts will not affect his sentence by permitting him a hearing at which he may seek to remove any lingering doubt the court may have had about the true situation. The court should then reconsider the sentence in the light of the true facts as found after hearing.

4

Vacated and remanded for resentencing.

*

Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I