United States v. Simon Hawthorne

OPINION OF THE COURT

GARTH, Circuit Judge:

This appeal from the defendant’s guilty plea asserts error in the denial of a pre-plea motion and attacks the validity of the sentence imposed. We conclude on the authority of Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), that the defendant’s guilty plea forecloses our consideration of his pre-plea motion. However, holding that the district court’s sentence was infirm under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), we vacate and remand for re-sentencing.

I

In May, 1973 a federal grand jury…