IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 91-5644
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK CANALES,
Defendant-Appellant.
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Appeal from the United States District Court for the
Western District of Texas
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ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
(Opinion May 7, 1992, 5th Cir., 1992, F.2d )
(July 8, 1992)
Before BROWN, GARWOOD and EMILIO M. GARZA, Circuit Judges.
GARWOOD, Circuit Judge:
We deny the Government's petition for rehearing. Our opinion
speaks only to situations in which the prior conviction is attacked
on nonforfeited grounds that, if properly established, would render
the conviction subject to federal court collateral attack as
invalid under the United States Constitution. It is not claimed
that the challenge to the 1982 conviction here falls outside of
that category. The Government recognizes that the Constitution
precludes reliance for sentencing purposes on at least certain
unconstitutionally obtained prior convictions. United States v.
Tucker, 92 S.Ct. 589 (1972). The Government implies, however, that
there may be other prior convictions that, though subject to being
set aside on federal court collateral attack because of other
federal constitutional infirmities, are nevertheless not so infirm
that the Constitution precludes their consideration for sentencing
purposes. No authorities are cited that support this assertion, no
examples of such convictions are given, and it is not even
expressly argued that the 1982 conviction here falls within that
category. The Government's argument demonstrates no error in our
prior opinion and judgment.
The Petition for Rehearing is DENIED and no member of this
panel nor Judge in regular active service on the Court having
requested that the Court be polled on rehearing en banc (Federal
Rules of Appellate Procedure and Local Rule 35) the Suggestion for
Rehearing En Banc is DENIED.
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