United States v. Gaither

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 it is inherently impossible for any court to disclaim consideration of a prior unconstitutional conviction in assessing sentence while still possessing…