United States v. Roger D. Weber

Appellant, on September 27, 1968, was arrested, in his automobile, at a border inspection station as he attempted to enter the United States from Mexico with approximately 40 pounds of marihuana in his possession. He was indicted on two counts: (I) a violation of 21 U.S.C. § 176a (smuggling) and (II) a violation of 26 U.S.C. § 4744 (a) (the marihuana stamp tax). Plea bargaining resulted in the government’s dropping the jj. 17.6a charge in exchange for Weber’s plea of guilty to the tax violation. On October 28, 1968, Weber’s guilty plea was-accepted and Count I dismissed. On June 26, 1969, appellant filed a 28 U.S.C'. § 2255 motion to vacate the sentence. His motion was denied October 8, 1969, the trial judge specifically finding that the motion' and the files and records of the case conclusively demonstrated that appellant wa's entitled to no relief.

The issues presented are (1) whether Leary v. United States, 395 U.S. 6 , 89 S.Ct. 1532 , 23 L.Ed.2d 57 (1969) stands for the proposition that 26 U.S.C. ■§ 4744 (a) is unconstitutional and, if so,, should ’ that decision be applied retroactively, and (2) does appellant’s guilty plea, after V successful plea bargaining and dismissal…