Villarreal v. U.S., 74-1811
| Decision Date | 09 December 1974 |
| Docket Number | No. 74-1811,74-1811 |
| Citation | 508 F.2d 1132 |
| Parties | Joe VILLARREAL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
S. Thomas Pollack, Deputy Federal Public Defender, Los Angeles, Cal., for petitioner-appellant.
Leslie E. Osborne, Asst. U.S. Atty., Los Angeles, Cal., for respondent-appellee.
Before CHAMBERS, Circuit Judge, BALDWIN, Judge, 1 and WALLACE, Circuit Judge.
In 1965, Villarreal pleaded guilty to two counts of armed bank robbery in violation of 18 U.S.C. 2113(a), (d), and was sentenced to consecutive prison terms of ten and twenty years. Starting in 1967, he filed petitions under 28 U.S.C. 2255 to vacate these sentences on the grounds that he had lacked understanding of the consequence of his plea and that the plea had been induced by representations from his counsel that his total sentence would not exceed fifteen years. In Villarreal v. United States, 461 F.2d 765 (9th Cir. 1972), we held that an evidentiary hearing must be conducted on these allegations. After conducting the hearing the district court reaffirmed its earlier opinion that the allegations were without merit. We affirm.
At the time the plea was entered, Villarreal stated that he knew he could receive a maximum sentence of twenty-five years and fine of $10,000 'on each count.' He was thus effectively aware that consecutive sentences totalling fifty years could be given. Hinds v. United States, 429 F.2d 1322 (9th Cir. 1970). There was more than ample evidence to support a finding by the district court that no promise was made by the Government that the sentence would be limited to fifteen years. Villarreal's guilty plea is not rendered involuntary merely because his attorney told him that the court would 'probably' give him such a lesser sentence. Ballinger v. United States,470 F.2d 739 (9th Cir. 1972).
Villarreal's final argument on appeal is that he had a right to be present at the evidentiary hearing. We think, however, that in view of the numerous affidavits filed in this case, the district court was correct in concluding that the facts could be fully investigated without requiring Villarreal's presence. See Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).
/1/ Honorable Phillip B. Baldwin, Associate Judge, United States Court of Customs and Patent Appeals, sitting by designation.
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...the Ninth Circuit has held that it is not necessary that the defendant-movant be present at the hearing. Villarreal v. United States, 508 F.2d 1132, 1133-34 (9th Cir. 1974); accord Barnes v. United States, 579 F.2d 364, 365 (5th Cir.1978); United States v. Lynch, 132 F.2d 111, 113 (3d Cir.1......
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McClanahan v. U.S.
...See Self v. Blackburn, 751 F.2d 789 (5th Cir. 1985); Stout v. United States, 508 F.2d 951, 953 (6th Cir. 1975); Villarreal v. United States, 508 F.2d 1132 (9th Cir. 1974); Calabrese v. United States, 507 F.2d 259 (3rd Cir. 1974). For the same reasons, counsel did not render ineffective assi......
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Faulisi v. Daggett, 75--1209
...not require the sentencing court to advise a defendant that prison terms might run consecutively. Similarly, in Villarreal v. United States, 508 F.2d 1132 (9th Cir. 1974), the defendant pleaded guilty to two counts of armed bank robbery and was sentenced to consecutive prison terms of 10 an......
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U.S. v. Hamilton, 77-2900
...the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 93d Cong., 2d Sess. (1974).4 See, e. g., Villarreal v. United States, 508 F.2d 1132, 1133 (9th Cir. 1974); Johnson v. United States, 460 F.2d 1203 (9th Cir.), cert. denied, 409 U.S. 873, 93 S.Ct. 206, 34 L.Ed.2d 125 (1972......