Opinion · Court of Appeals for the Second Circuit

William B. Wilsey v. United States

William B. Wilsey v. United States, 496 F.2d 619 (2d Cir. 1974)

Type
Opinion
Court
Court of Appeals for the Second Circuit
Jurisdiction
Federal
Date
1974-04-30
Topic
general

How later courts describe this case

  • federal court can determine prior conviction’s validity

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Cited by
8 opinions
WILSEY v. UNITED STATES,496 F.2d 619(2nd Cir. 1974)
WILLIAM B. WILSEY, PETITIONER-APPELLANT, v. UNITED STATES OF AMERICA,
RESPONDENT-APPELLEE.
No. 504, Docket 73-2177.
United States Court of Appeals, Second Circuit.
Argued December 5, 1973.
Decided April 30, 1974.
Lionel G. Hest, New York City (Debevoise, Plimpton, Lyons Gates, New York City, on the brief), for petitioner-appellant.

Paul V. French, Asst. U.S. Atty. (James M. Sullivan, Jr., U.S. Atty. N.D.N.Y., on the brief), for respondent-appellee.
Appeal from the United States District Court for the Northern District of New York.
Before WATERMAN and FEINBERG, Circuit Judges, and GURFEIN, District Judge.fn*
PER CURIAM:
[1] William B. Wilsey appeals from an order of the United States District Court for the Northern District of New York, Edmund Port, J., denying without a hearing Wilsey's petition under28 U.S.C. § 2255to set aside his four-year sentence, entered in February 1971 after a guilty plea, for conspiring to counterfeit Federal Reserve notes.18 U.S.C. § 371. Wilsey claims that the judge, in sentencing him, was improperly influenced by some prior convictions obtained when Wilsey did not have counsel and therefore not to be considered under United States v. Tucker,404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).1The Government argues that the judge's remarks on the record show that he imposed sentence without relying on any prior unconstitutionally obtained convictions of appellant.

[2] We view the judge's comments as ambiguous and the record as unclear. Accordingly, we remand the proceeding so that the district judge may make brief findings as to (1) whether the pre-sentence report contained the challenged convictions; and (2) if so, whether he should have given a different sentence if he had known they were constitutionally invalid. If the answer to both questions is yes, the judge should determine whether the prior convictions were had without counsel and, if so, he should resentence. If the answer to either (1) or (2) is in the negative, the judge should simply make a finding to that effect, cf.Page 620Schawartzberg v. United States,382 F.2d 1012(2d Cir. 1967) (per curiam), cert. denied,391 U.S. 928, 88 S.Ct. 1817, 20 L.Ed.2d 669 (1968); United States v. Janiac,464 F.2d 126, 132 (3d Cir. 1972), and not disturb the sentence.Page 623
  1. Of the United States District Court for the Southern District of New York, sitting by designation. ↩
  2. Appellant points out that his co-defendant received a sentence of only six months. ↩