decided as amended february 18 1976.: February 2, 1976.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (Criminal Action No. 73-132).
Aldisert, Hunter and Garth, Circuit Judges.
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, 36 L. Ed. 2d 235, 93 S. Ct. 1602 (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, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), we vacate and remand for resentencing.
In May, 1973 a federal grand jury in the Western District of Pennsylvania returned a two-count indictment against Simon Hawthorne for violating 21 U.S.C. § 841 (a)(1) (distribution of cocaine).*fn1 Each count of the indictment alleged a separate sale of cocaine. On July 5, 1973, Hawthorne pleaded guilty to Count II of the indictment in return for the Government's promise to move for dismissal of Count I. The district court sentenced Hawthorne to ten years in prison and provided
that the defendant shall become eligible for parole, under 18 U.S.C.A., Section 4208(a)(2) at such times [sic] as the Board of Parole may determine. In addition to the sentence of imprisonment, a special parole term of five (5) years is hereby imposed pursuant to 21 U.S.C., Section 841.
Upon the Government's motion, the district court dismissed Count I of the indictment.
Thereafter, Hawthorne sought to withdraw his guilty plea. The district court denied the motion. On appeal this Court vacated the district court's order and remanded to permit Hawthorne to unequivocally explain the reasons which he claimed vitiated his plea. United States v. Hawthorne, 502 F.2d 1183 (3d Cir. 1974). After remand the district court granted Hawthorne's motion to withdraw his guilty plea.
Hawthorne was arraigned again on November 13, 1974. At that time the district court vacated its earlier order dismissing Count I of the indictment and ordered that count reinstated. Hawthorne then filed a pretrial motion to dismiss Count I of the indictment*fn2 which was denied.*fn3 Pursuant to a plea bargain Hawthorne pleaded guilty to Count II of the indictment in exchange for the Government's dual promise to move for dismissal of Count I and to recommend a prison term not in excess of ten (10) years.
Following a three month study period ordered under 18 U.S.C. § 4208(c), the district court, without making reference to any sentencing statute, sentenced Hawthorne on May 9, 1975 to
Ten (10) years as to Count 2, with an allowance for such time as the defendant has already served. In addition to the sentence of imprisonment, a special parole term of three (3) years is hereby imposed pursuant to 21 U.S.C. Section 841.
Thus, the custodial portion of the 1975 sentence was the same as the one pronounced in 1973, and the special parole term was three years instead of five years. The 1973 sentence provided that appellant would become eligible for parole under § 4208(a)(2) at such time as the Board of Parole may determine; the 1975 sentence contained no similar provision. On the Government's motion, the district ...