Lawrence Leroy Farrow v. United States

Farrow appeals from the district court’s determination upholding his sentence for jumping bail and failing to pay the special tax on 119 pounds of marijuana in violation of 18 U.S.C. § 3150 and 26 U.S.C. §§ 4755 (a)(1), 7202. We affirm.

On January 24, 1972, appellant was sentenced to three years on the bail jump count and to five years on the tax count, subject to the early parole provisions of 18 U.S.C. § 4208 (a)(2) (now 18 U.S.C. § 4201 et seq.). He subsequently filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 principally alleging that in passing sentence, the trial court considered four prior convictions rendered invalid by Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963). Gideon was made fully retroactive in Pickelsimer v. Wainwright, 375 U.S. 2 , 84 S.Ct. 80 , 11 L.Ed.2d 41 (1963), and reliance on such retroactively invalid convictions to enhance punishment was proscribed in United States v. Tucker, 404 U.S. 443 , 92 S.Ct. 589 , 30 L.Ed.2d 592 (1971). The district court — following the procedure adopted by the Fifth Circuit in Lipscomb v. Clark, 468 F.2d 1321 (5th Cir. 1972) — disposed of Farrow’s Tucker contention saying “that even if…

dissenting; in which Judge ELY concurs:

Farrow alleged that his sentence had been enhanced by the sentencing court’s consideration of prior convictions constitutionally invalid under Gideon v. Wainwright (1963) 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 , in violation of United States v. Tucker (1972) 404 U.S. 443 , 1 and he attacked some other aspects of the sentencing proceedings. Following the procedure adopted in Lipscomb v. Clark (5th Cir. 1972) 468 F.2d 1321 , the district court rejected the Tucker contention, stating that “even if all challenged priors are disregarded the sentence would be the same in this case.” (Farrow v. United States (S.D.Cal.1974) 373 F.Supp. 113, 117 .) The majority opinion holds that the district court correctly followed Lipscomb , and that no evidentiary hearing was required either on the petitioner’s Tucker claims or his other challenges to deficiencies in the sentencing procedures.

*1363 I would not follow Lipscomb because it is contrary to the teaching of Tucker . Instead, I would adopt a simple, straightforward procedure: Upon the petitioner’s showing that prior convictions obtained in violation of Gideon were brought to the sentencing…

580 F.2d 1339 Lawrence Leroy FARROW, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 74-2429. United States Court of Appeals, Ninth Circuit. Aug. 31, 1978. Lawrence Leroy Farrow, in pro per. Terry J. Knoepp, U. S. Atty., San Diego, Cal., for defendant-appellee. Appeal from the United States District Court for the Southern District of California. Before BROWNING, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED, KENNEDY and ANDERSON, Circuit Judges. CHOY, Circuit Judge: 1 Farrow appeals from the district court's determination upholding his sentence for jumping bail and failing to pay the special tax on 119 pounds of marijuana in violation of 18 U.S.C. § 3150 and 26 U.S.C. §§ 4755 (a)(1), 7202. We affirm. 2 On January 24, 1972, appellant was sentenced to three years on the bail jump count and to five years on the tax count, subject to the early parole provisions of 18 U.S.C. § 4208 (a)(2) (now 18 U.S.C. § 4201 et seq.). He subsequently filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 principally alleging that in passing sentence, the trial court considered four prior convictions rendered invalid by…