Gil Munoz Leano v. United States

In 1968, appellant Leano pleaded guilty to two counts of concealing and transporting imported marijuana in violation of 21 U.S.C. § 176a, and was sentenced to 10 years’ imprisonment on each count, to run concurrently. Ten years is the mandatory minimum sentence for violation of § 176a by one who has a prior drug conviction.

In Leano v. United States, 494 F.2d 361 (9th Cir. 1974) [Leano I], this court considered the validity of the district court’s sentencing. We determined that the transcript on its face established a “reasonable probability” that “the sentencing judge enhanced punishment on the basis of a conviction void because [Leano] had not been afforded his Sixth Amendment right to counsel. United States v. Tucker, 404 U.S. 443 , 92 S.Ct. 589 , 30 L.Ed.2d 592 (1972).” Id. at 362. We thus “ ‘remanded to the district court for resentencing without consideration of any prior convictions which is [sic] invalid under Gideon v. Wainright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963).’ ” Id. at 363.

Upon remand the original sentencing judge reimposed the identical ten-year sentence, disclaiming reliance upon the invalid prior. Leano again appealed to this court. We…