The district court denied the motion to vacate sentence pursuant to 28 U.S.C. § 2255 filed by Rogers, a federal prisoner. We affirm.

Appellant is serving a five year sentence imposed upon him on June 28, 1971, for a violation of the Dyer Act, 18 U.S.C. § 2312. In his § 2255 motion he contends that the court relied on a prior constitutionally infirm conviction in fixing the length of his sentence. Appellant relies upon United States v. Tucker, 1972, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592, in which the Supreme Court held that where a judge, in assessing sentence, gives explicit consideration to a prior conviction which is subsequently determined to be invalid, the defendant is entitled to be resentenced without consideration of that invalid conviction.

In the case now before this Court, the record fails to disclose that the sentencing judge gave explicit consideration to the prior conviction. 1 Even though the *514 earlier conviction was referred to in the presentence report, the court, in denying relief, specifically certified that the sentence was not enhanced by the existence of that earlier conviction. 2 Therefore, the present sentence not being founded upon a prior invalid conviction, Tucker is inapplicable. It is thus unnecessary to examine the legality of the prior conviction.

The judgment below is affirmed.