United States v. Eidum, 72-2286.
| Decision Date | 06 February 1973 |
| Docket Number | No. 72-2286.,72-2286. |
| Citation | 474 F.2d 581 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Wayne EIDUM, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kenneth Wayne Eidum, in pro. per.
Stan Pitkin, U. S. Atty., Charles W. Billinghurst, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.
Before BROWNING and GOODWIN, Circuit Judges, and 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.
* Honorable Samuel Conti, United States District Judge, Northern District of California, sitting by designation.
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Wilson v. U.S.
...30 L.Ed.2d 592 (1972) has been met in this case by the district judge's reconsideration of the earlier sentence. See United States v. Eidum, 474 F.2d 581 (9 Cir. 1973). Tucker does not require resentencing, but rather, mandates that prior sentences be reconsidered. This has been done in the......
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Farrow v. U.S.
...to deal with the question shortly after Lipscomb and McAnulty, and chose to follow the approach of those cases. In United States v. Eidum, 474 F.2d 581 (9th Cir. 1973), the defendant brought a § 2255 motion to modify his sentence, alleging that three of his prior convictions were defective.......
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Williams v. State
...See United States v. Shillingford, 586 F.2d 372 (5 Cir. 1978); Brown v. United States, 489 F.2d 1036 (8 Cir. 1974); United States v. Eidum, 474 F.2d 581 (9 Cir. 1973); Ballard v. Blackwell, 449 F.2d 868 (5 Cir. 1971); Duval v. United States, 385 F.Supp. 302 (E.D.Pa.1974); Jennings v. Hunt, ......
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Troglin v. Clanon, C-74-0020.
...Cir. 1973); Brown v. United States, supra, 483 F.2d at 118; Lipscomb v. Clark, supra, 468 F.2d at 1323. See also United States v. Eidum, 474 F.2d 581, 582 (9th Cir. 1973). This case differs from the above authorities in that a state judge imposed the sentence; considerations of comity thus ......