Joseph Eugene Robert Houle, Petitioner-Appellant, v. United States of America, Respondent-Appellee. No. 73-3960. Summary Calendar. [Fn*], 493 F.2d 915 (5th Cir. 1974)

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Joseph E. R. Houle, pro se.

Anthony J. P. Farris, U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before BELL, SIMPSON and MORGAN, Circuit Judges.

PER CURIAM:

This appeal is from denial of a motion in the nature of one seeking relief under 28 U.S.C.A. § 2255. Appellant claims that the sentence was based on impermissible considerations, to wit, the fact of his arrest while on bail awaiting trial, and a series of Canadian convictions allegedly suffered without the benefit of counsel.[fn1]

As for the subsequent arrest, it is clear that a sentencing judge's wide discretion permits consideration of arrests even if, as here, they do not result in indictment. See United States v. Marcello, 5 Cir., 1970, 423 F.2d 993, 1012; United States v. Sweig, 2 Cir., 1972, 454 F.2d 181.

As for the Canadian convictions, appellant urges that United States v. Tucker, 1972, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592, is applicable. We think his reliance is misplaced. That case, which prohibits sentences based on prior convictions in which the right to counsel was violated, turns on Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, which established that such convictions have been unconstitutionally obtained. The key to Tucker is the Court's belief that a sentencing judge would be faced with a "dramatically different" situation if he knew that "[i]nstead of confronting a defendant who had been legally convicted of . . . previous felonies," he was "dealing with a man who . . . had been unconstitutionally imprisoned" for a period of time. 404 U.S. at 448, 92 S. Ct. at 592, 30 L.Ed.2d at 597.

Gideon, of course, is based on the United States Constitution, and cannot be imposed upon Canadian proceedings.[fn2] That being true, it cannot be said that the sentencing judge should view appellant as a man who has been heretofore illegally incarcerated, and Tucker is thus inapplicable.

As with the subsequent arrest, the previous Canadian convictions were properly considered in the court's exercise of discretion. While appellant was free to submit explanatory information, as he has done, it is not within the power of this court to review his sentence, even if it has not been lessened by his explanations. See United States v. Hartford, 5 Cir., 1973, 489 F.2d 652, 654 (distinguishing between an appellate court's review of sentence duration per se and its review of the judicial process by which that sentence is determined).

Affirmed.

[fn*] Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.

[fn1] The claim that these matters were considered is based on the following discussion at sentencing:

[fn2] Further, we cannot say that the rationale of Gideon is applicable to Canadian proceedings. As stated in Tucker, 404 U.S. at 447, 92 S.Ct. at 591, 30 L.Ed.2d 596, n. 5, that rationale is capsulized in the following quote from Gideon:

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