United States v. Battle, 71-1344 Summary Calendar.
| Decision Date | 13 August 1971 |
| Docket Number | No. 71-1344 Summary Calendar.,71-1344 Summary Calendar. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gustavo BATTLE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Prebish & Masin, Michael A. Masin, Miami, Fla., for defendant-appellant.
Robert W. Rust, U. S. Atty., George A. Kokus, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
Before JOHN R. BROWN, Chief Judge, and INGRAHAM and RONEY, Circuit Judges.
On a plea of guilty, the petitioner was convicted on one count of purchasing, selling and distributing cocaine which was not in the original stamped package. He was sentenced to eight years imprisonment and a few days later filed what was denominated a Motion To Mitigate Sentence/Motion For Leave To Withdraw Plea of Guilty and Vacation of Sentence, contending that the misrepresentations of the Government were the forces moving him to plead guilty. In effect it is a direct appeal, not a post-conviction matter.
Prior to trial defendant's counsel had several conversations both with the United States Attorney and with the narcotics officer charged with consulting the probation officer. The defendant argues that the essence, though admittedly not unambiguous, of these conversations was that a light, if not minimal, sentence was in order and that the Government would not ask for, nor would the probation officer recommend, more. In fact, the defendant argues, the Government in effect admitted as much after the heavier sentence was imposed when the United States Attorney went to the Trial Judge and notified him that many of the statements in the presentence report very possibly pertained to the defendant's brother and not to the defendant.1 It was only because of these many claimed representations of Government officials that the defendant alleges he pleaded guilty. The Government of course counters that these were not the facts or that at any rate whatever the Government said it would do, it did.
The District Court in an unrevealing cryptic order denied the motion and the defendant appeals. In its denial, however, the District Court made no fact findings on which it based its determination. It is this deficiency that hinders our ability to resolve the merits of this appeal. We have nothing to go on but the charges and countercharges of the parties. The legal principles in this instance are fairly clear — a plea cannot be vacated because the defendant anticipated that by pleading guilty he would...
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Hilliard v. Beto, 72-1869 Summary Calendar.
...United States v. Frontero, et al., 5 Cir., 1971, 452 F.2d 406. But see Ross v. Wainwright, 5 Cir., 1971, 451 F.2d 298; United States v. Battle, 5 Cir., 1971, 447 F.2d 950. Santobello, however, requires that we take a second look at our prior decisions. In Santobello the Supreme Court recogn......
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...also, Knight v. United States, 611 F.2d 918 (1st Cir.1979); Matthews v. United States, 569 F.2d 941 (5th Cir.1978); United States v. Battle, 447 F.2d 950 (5th Cir.1971). There is no claim that there was an undisclosed and unfulfilled plea bargain for a lesser sentence. Blackledge v. Allison......
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U.S. v. Scharf, 77-1055
...under Rule 32(d) presents an issue of fact, an adversary evidentiary hearing may be required to resolve the issue. United States v. Battle, 447 F.2d 950 (5th Cir. 1971); Meyer v. United States, 424 F.2d 1181 (8th Cir.), cert. denied, 400 U.S. 853, 91 S.Ct. 92, 27 L.Ed.2d 91 (1970); United S......
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State v. Short
...and knows what is going on here today in this proceeding.' (Italics ours.) Statement of Facts, p. 62. 1 See United States v. Battle, 447 F.2d 950 (5th Cir. 1971) (insufficient record to review denial of motion to mitigate sentence/withdraw guilty plea); State v. Roberts, 18 N.C.App. 388, 19......