524 F.2d 920
Donald Graham GARRISON, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 75-3258Summary Calendar.*
United States Court of Appeals,Fifth Circuit.
Dec. 12, 1975.

Donald Graham Garrison, pro se.
Dennis R. Lewis, Asst. U. S. Atty., Roby Hadden, U. S. Atty., Beaumont, Tex., for respondent-appellee.
Appeal from the United States District Court for the Eastern District of Texas.
Before COLEMAN, AINSWORTH and SIMPSON, Circuit Judges.
PER CURIAM:


1
This appeal is from the denial, without a hearing, of a 28 U.S.C., § 2255 motion to set aside sentence.  The sentence is assertedly invalid because previous unconstitutional convictions were taken into account by the sentencing judge in imposing the maximum sentence on a guilty plea, as reflected by the pre-sentence report.


2
During the imposition of sentence, the trial court remarked (page 8 of the sentencing transcript) "according to this probation report it appears that you really prefer to live in the penitentiary rather than on the outside".


3
This indicates that if there were any unconstitutional sentences they were taken into consideration.  To settle this there should have been a hearing.  See Tucker v. United States, 1972, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592; United States v. Espinoza, 5 Cir., 1973, 481 F.2d 553, 556; United States v. Battaglia, 5 Cir., 1972, 478 F.2d 854; Russo v. United States, 5 Cir., 1972, 470 F.2d 1357, 1358-59; Lipscomb v. Clark, 5 Cir., 1972, 468 F.2d 1321, 1323; Davis v. Wainwright, 5 Cir., 1972, 462 F.2d 1354, 1356.


4
Reversed and remanded for hearing.



*
 Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I


