Melvin Tanzer v. United States

For violation of the Narcotic Drugs Import and Export Act, 21 U.S.C.A. § 174 , the minimum sentence for a first offender is five years and that for a second offender is ten years. Since 1956, neither probation nor parole is available. 26 U.S.C. § 7237 (d).

In 1952, Tanzer pleaded guilty to a violation of § 174. The imposition of sentence was suspended. He was placed on probation and successfully fulfilled the probation terms. In 1957, Tanzer, after trial, was found guilty of a second violation of the section. The question raised by this appeal is whether, considering the manner of disposition of the first violation,' Tanzer is to be regarded as a second offender. The trial court so regarded him and sentenced him accordingly.

Tanzer sought to avoid this consequence in two ways: (1) He moved in the 1952 case for an order setting aside the judgment of conviction upon the ground that the probation terms had been satisfactorily fulfilled. (2) He moved in the 1957 case to set aside the order of conviction as a second offender upon the ground that, since imposition of sentence had been suspended in the earlier ease, there had been no final judgment of conviction in that case. Both…