Samuel Portillo v. United States

This appeal from a denial of relief under 28 U.S.C. § 2255 (1970) raises the question: Did the sentencing judge improperly deny Portillo’s § 2255 petition to amend a sentence allegedly enhanced by the judge’s reliance on a prior conviction rendered invalid under the Fourth Amendment?

Following the calendaring of this appeal, the panel directed that submission be deferred, and the cause was submitted for en banc consideration, together with Farrow v. United States, No. 74-2429 (9th Cir. Sept. 24, 1976) (opinion withdrawn Apr. 14,1977). In the en banc opinion in Farrow v. United States, 580 F.2d 1339 (9th Cir. 1978), we outlined the procedure to be followed by district courts when faced with a § 2255 motion alleging an impermissibly enhanced sentence under United States v. Tucker, 404 U.S. 443 , 92 S.Ct. 589 , 30 L.Ed.2d 592 (1972), and affirmed the district court’s denial of appellant’s petition. For reasons related, to those outlined in Farrow , we also affirm the district court’s denial of § 2255 relief here.

FACTS

Portillo was arrested in Arizona in July 1971 on federal drug charges following a search of his vehicle near the international border. While at liberty on bond with…