Enrique Reyes Leyvas v. United States

Enrique Reyes Leyvas appeals from a district court order denying his motion, made under Rule 35, Federal Rules of Criminal Procedure, to “Correct and/or Modify Sentence.”

On April 29, 1957, Leyvas was convicted by a jury on counts 10, 11 and 17 of a multicount indictment for violations of section 2(c) of the Narcotic Drugs Import and Export Act, 70 Stat. 570 (1956), 21 U.S.C. § 174 (1964). He was sentenced to five years imprisonment and a five dollar fine on each count, with the sentences to run consecutively for a total sentence of fifteen years imprisonment and a fifteen dollar fine. On May 9, 1957, Leyvas filed a written election not to commence serving his sentence pending disposition of his appeal.

On August 13, 1958, this court affirmed the convictions. Leyvas, et al. v. United States, 9 Cir., 264 F.2d 272 . On September 24, 1958, Leyvas, proceeding under Rule 35, Federal Rules of Criminal Procedure, filed a motion in the district court for reduction of his sentence. On December 5, 1958, the district court granted his motion to the extent of reducing, by nineteen months, the five-year sentence imposed on count 17.

In its order so reducing the sentence on count 17, the…