UNITED STATES v. GAITHER

No. 74-2197 Summary Calendar.

503 F.2d 452 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Eugene GAITHER, a/k/a Shag, Defendant-Appellant.

United States Court of Appeals, Fifth Circuit.

November 13, 1974.


Attorney(s) appearing for the Case

Howard L. Stopeck, Atlanta, Ga. (Court-appointed), for defendant-appellant.

John W. Stokes, U. S. Atty., J. Owen Forrester, J. Robert Cooper, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.

Before COLEMAN, DYER and RONEY, Circuit Judges:


PER CURIAM:

Convicted of heroin distribution, the defendant brought a § 2255 attack on his six-year sentence on the ground that the district judge considered a defective 1951 Dyer Act conviction. The judge vacated the six-year sentence, stated that he would not "consider the prior conviction in assessing sentence in any way," but then reimposed another six-year sentence.

Appellant attacks this resentencing process as being unconstitutional, arguing that...

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