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UNITED STATES v. COLUNGA

No. 85-2378.

786 F.2d 655 (1986)

UNITED STATES of America, Plaintiff-Appellee, v. Roberto Garza COLUNGA a/k/a Roberto Garza, Defendant-Appellant.

United States Court of Appeals, Fifth Circuit.

April 4, 1986.

Attorney(s) appearing for the Case

Joseph A. Connors, III, McAllen, Tex., Sheldon Weisfeld, Brownsville, Tex., for defendant-appellant.

Mervyn Hamburg, Atty., Appellate Section, Crim. Div., U.S. Dept. of Justice, Washington, D.C., Henry K. Oncken, U.S. Atty., Susan L. Yarbrough, James R. Gough, Asst. U.S. Atty., Houston, Tex., for U.S.

Before BROWN, REAVLEY, and HILL, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

In this appeal we are asked to determine the proper remedy when a defendant pleads guilty to, and is sentenced for, two conspiracies when the evidence establishes that only a single conspiracy exists. We hold that the proper remedy is to vacate both sentences and remand to the District Court for resentencing on one count. However, because the original sentence was imposed under a misapprehension of the maximum possible penalty, the defendant...

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