Unpublished Dispositionjulius H. Graves, Petitioner-appellant v. United States of America, Respondent-appellee, 803 F.2d 719 (6th Cir. 1986)

BEFORE: KENNEDY, MARTIN, Circuit Judges, and PECK, Senior Circuit Judge

ORDER

The petitioner moves for counsel on appeal from the district court's order denying his motion to vacate. This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the petitioner's informal brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

The petitioner was charged in Akron, Ohio district court with conspiring to commit, aiding and abetting, and committing armed bank robbery. After both sides had presented their evidence at trial, the petitioner changed his plea to no contest and was sentenced to ten years imprisonment.

The petitioner's motion to vacate alleges that there was false information in the presentence report. The report contained a reference to a juvenile robbery conviction which the petitioner alleges was obtained without representation of counsel. Also, the report contained a statement that the petitioner was the leader of an armed robbery operation. These statements allegedly violated the petitioner's due process rights.

The district court held that it had not relied upon this information in the presentence report in sentencing petitioner. The court stated that it based its decision upon the evidence presented at trial before the petitioner changed his plea. Because there was no reliance on the presentence report, the court held that there was no due process violation. United States v. LeBlanc, 762 F.2d 502, 505 (6th Cir.), cert. denied, --- U.S. ----, 106 S. Ct. 156 (1985). We agree with the conclusion of the district court.

The motion for counsel is denied. The order of the district court is affirmed under Rule 9(d) (3), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.