Madison Wilson v. United States

534 F.2d 130 Madison WILSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 74-1124. United States Court of Appeals, Ninth Circuit. July 29, 1974. As Amended on Denial of Rehearing and Rehearing En Banc April 22, 1976. Richard D. Emery of Legal Services, Seattle, Wash., for plaintiff-appellant. Charles Pinnell, Asst. U. S. Atty., Seattle, Wash., for defendant-appellee. Before CARTER, HUFSTEDLER and TRASK, Circuit Judges. OPINION JAMES M. CARTER, Circuit Judge. 1 The judgment of the district court in denying the motion to vacate and set aside the judgment and commitment dated February 19, 1962, is affirmed. We find that the requirement of United States v. Tucker, 404 U.S. 443 , 92 S.Ct. 589 , 30 L.Ed.2d 592 (1972) has been met in this case by the district judge's reconsideration of the earlier sentence. See United States v. Eidum, 474 F.2d 581 (9 Cir. 1973). Tucker does not require resentencing, but rather, mandates that prior sentences be reconsidered. This has been done in the present case. We find no basis in this case for refuting the district judge's determination of the impact of the three prior invalid marijuana convictions on his sentencing of…

JAMES M. CARTER, Circuit Judge.

*131 The judgment of the district court in denying the motion to vacate and set aside the judgment and commitment dated February 19, 1962, is affirmed. We find that the requirement of United States v. Tucker, 404 U.S. 443 , 92 S.Ct. 589 , 30 L.Ed.2d 592 (1972) has been met in this case by the district judge’s reconsideration of the earlier sentence. See United States v. Eidum, 474 F.2d 581 (9 Cir. 1973). Tucker does not require resentencing, but rather, mandates that prior sentences be reconsidered. This has been done in the present case. We find no basis in this case for refuting the district judge’s determination of the impact of the three prior invalid marijuana convictions on his sentencing of petitioner for the six heroin violations.

We take note of Leano v. United States, 494 F.2d 361 (9 Cir. 1974). The case was not cited in the briefs. In that case this court cited United States v. Tucker, 404 U.S. 443 , 92 S.Ct. 589 , 30 L.Ed.2d 592 (1972) and the case below, Tucker v. United States, 431 F.2d 1292 (9 Cir. 1972) and remanded the case for “resentencing without consideration of any prior conviction which [is] invalid under Gideon v.…

I dissent both from the panel opinion and from the court’s denial of rehearing en banc. The majority opinion attempts to avoid a visible head-on collision with United States v. Tucker (1972) 404 U.S. 443 , 92 S.Ct. 589 , 30 L.Ed.2d 592 ; Leano v. United States (9th Cir. 1974) 494 F.2d 361 ; and Wheeler v. United States (9th Cir. 1972) 468 F.2d 244 , by translating Wilson’s initial sentencing record into language that would bring Wilson into the narrow ambit of United States v. Eidum (9th Cir. 1973) 474 F.2d 581 and Dukes v. United States (9th Cir. 1974) 492 F.2d 1187 . If Wilson’s record resembled Eidum and Dukes , I could join in the majority’s holding that Tucker error is not established when a section 2255 petitioner’s averments of such error are wholly unsupported by the record of his original sentencing. But Wilson’s record looks like the sentencing records in Tucker and Leano , and not like those in Eidum and Dukes . Because the majority holds that no Tucker violation occurred, its discussion of the appropriate remedy for a Tucker violation is dicta. Nevertheless, I cannot dismiss that discussion as harmless error because the majority opinion confuses the method of…