William J. Fenstermaker v. United States

Appellant, serving a five-year sentence upon conviction of the crime of fraudulent possession of counterfeit notes, 18 U.S.C. § 472 , moved in the District Court for the District of Nevada for an order setting aside his sentence pursuant to 28 U.S.C. § 2255 . Counsel was appointed to represent him and an evidentiary hearing was had following which findings of fact were made by the District Court and an order entered denying relief. This appeal followed. Three points are here asserted:

1. Appellant contends that his plea of guilty was not voluntary, since it was induced by “a totality of circumstances which led him to believe that a reduced sentence would be received” and thus was founded on misunderstanding.

From the record it appears that no assurances were given appellant as to the nature of the sentence he might receive; that he was told by his counsel that there was no way of predicting the length of sentence since the probation report, yet to be secured, would be taken into consideration; that the most counsel could say was that the sentence upon a guilty plea often was more lenient than that upon a plea of not guilty.

Appellant testified that his attorney, upon receiving…