464 F2d 1291 Garcia v. United States

464 F.2d 1291

Pete Griego GARCIA, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 72-1081.

United States Court of Appeals,

Tenth Circuit.

Aug. 1, 1972.

Scott H. Mabry, Albuquerque, N. M. (David F. Boyd, Jr., Albuquerque, N. M., on the brief), for petitioner-appellant.

Richard J. Smith, Asst. U. S. Atty. (Victor R. Ortega, U. S. Atty., on the brief), for respondent-appellee.

Before BREITENSTEIN, BARRETT and DOYLE, Circuit Judges.

PER CURIAM.

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1

The structure legally and factually of this case is substantially identical with that obtaining in Martinez v. United States, 464 F.2d 1289, 10 Cir., decided by us this day. Based on the authorities and reasoning of Martinez, we must also remand this cause for resentencing. The 1954 conviction of Garcia is also subject to the Supreme Court's ruling in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57. As stated in Martinez, subsequent decisions of the Supreme Court make clear that Leary is retroactive.

2

Accordingly, the judgment of the district court is reversed and the cause is remanded with directions to the district court to vacate the sentence heretofore imposed and to impose a sentence which disregards the 1954 conviction.