PER CURIAM:
In 1968, appellant Leano pleaded guilty to two counts of concealing and transporting imported marijuana in violation of 21 U.S.C. § 176a,
and was sentenced to 10 years’ imprisonment on each count, to run concurrently. Ten years is the mandatory minimum sentence for violation of § 176a by one who has a prior drug conviction.
In
Leano v. United States,
494 F.2d 361 (9th Cir. 1974) [Leano I], this court considered the validity of the district court’s sentencing. We determined that the transcript on its face established a “reasonable probability” that “the sentencing judge enhanced punishment on the basis of a conviction void because [Leano] had not been afforded his Sixth Amendment right to counsel.
United States v. Tucker,
404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).”
Id.
at 362. We thus “ ‘remanded to the district court for resentencing without consideration of any prior convictions which is [sic] invalid under
Gideon v. Wainright,
372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).’ ”
Id.
at 363.
Upon remand the original sentencing judge reimposed the identical ten-year sentence, disclaiming reliance upon the invalid prior. Leano again appealed to this court. We consolidated the second
Leano
appeal with the appeal in
Farrow v. United States,
No. 74-2429. Although the panel in the consolidated
Farrow-Leano
appeal split as to the proper resolution of appellant Farrow’s claims, it was unanimous in remanding Leano’s cause for reconsideration of the sentence. Specifically, the panel wrote that the sentencing judge reimposed
upon Leano the identical ten-year sentence which the
Leano I
record shows he thought to be the “minimum” (based on the erroneous view that Leano was a second offender) at the time of the original sentencing.
See
494 F.2d at 362-363 n.3. During the resentencing proceeding, the judge reiterated his earlier disclaimer of reliance on the certification of a prior conviction at the original sentencing even though, as we concluded in
Leano I,
the sentencing transcript manifests otherwise. In addition, the judge gave an “explanation” of his original sentencing at some length, taking the position that he had relied on a recommendation of a ten-year sentence contained in the presentence report. . . . However, the
cover page of that presentence report . clearly indicates that the report was prepared under the assumption that Leano was a second offender . Hence it appears that the judge’s recollection of the sentencing proceeding has been dimmed by the intervening years
. [Wjhere, as here, there is no evidentiary basis for [the judge’s “finding” that the original sentence was not enhanced based on improper factors], it must be deemed clearly erroneous, the sentence must be vacated, and the prisoner resentenced . . . . The matter now before us is in essentially the same posture as in
Leano I.
The substantial lingering doubt as to whether the original ten-year sentence may have been based on improper considerations hovers over the new sentence. Accordingly, that sentence must be vacated and the cause remanded for a fresh resentencing. For the judge’s sake and the appearance of justice, the Chief Judge of the United States District Court for the Central District of California shall on remand designate a different judge to conduct the resentencing.
After the consolidated
Farrow-Leano
decision was issued, a rehearing en banc was granted in the cause of
Farrow.
No rehearing was requested in the cause of
Leano.
Accordingly, the mandate in
Leano
was not withdrawn. See
Farrow v. United States,
580 F.2d 1339, 1344 n.1 (9th Cir. 1978) (en banc). Nonetheless, the consolidated
Farrow-Leano
opinion was withdrawn.
Gelfuso v. Bell,
590 F.2d 754, 755 (9th Cir. 1978).
Pursuant to the
Leano
mandate, the remand of
Leano
was assigned to a different judge for reconsideration of the sentence. That judge reduced Leano’s sentence from ten years to eight years on each count, to run concurrently.
Although the consolidated panel decision in
Farrow-Leano
has been withdrawn, and although the cause of
Leano
was not directly in issue in the en banc consideration of
Farrow,
this court en banc placed its imprimatur upon the panel’s unanimous
Leano
analysis. The court en banc noted:
[Wjhere the district judge’s disclaimer of reliance on the invalid priors is in fact contradicted by the record, we have held that the case must be remanded for re-sentencing without consideration of any prior conviction invalid under
Gideon. Leano v. United States,
494 F.2d 361 (9th Cir. 1974). . . .
Leano
represented an exception to the procedures [approved in
Farrow
for
Tucker
claims] where there was “no support in the record for the court’s statement that it had not relied on the prior,” and indeed, “it was clear that the trial judge imposed the ten-year sentence
because of
the prior conviction.”
Wilson v. United States,
534 F.2d at 131 (emphasis added).
Farrow,
580 F.2d at 1348 (en banc) (footnote omitted).
The court en banc also approved of our direction that a different judge should conduct the resentencing. After noting that
“Tucker
petitions . . . should ordinarily be decided by the original sentencing judge,” 580 F.2d at 1351, the court en banc, through Judge Choy, added:
As our decisions in
Leano . . .
and
Wilson v. United States,
534 F.2d 130, 133 (9th Cir. 1976) make clear, there is an important distinction between the ordinary
Tucker
case and cases in which the sentencing judge’s determination of a § 2255
Tucker
petition is inconsistent with the record. The fact that the record in
Leano
contradicted the sentencing judge’s disclaimer of reliance on an allegedly invalid prior — he considered the minimum sentence to be ten years, which could not have been the case if he had disregarded the challenged conviction— was the basis for the author’s concurrence in . remanding the case to a new judge for resentencing. . As stated in
United States v. Robin,
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PER CURIAM:
In 1968, appellant Leano pleaded guilty to two counts of concealing and transporting imported marijuana in violation of 21 U.S.C. § 176a,
and was sentenced to 10 years’ imprisonment on each count, to run concurrently. Ten years is the mandatory minimum sentence for violation of § 176a by one who has a prior drug conviction.
In
Leano v. United States,
494 F.2d 361 (9th Cir. 1974) [Leano I], this court considered the validity of the district court’s sentencing. We determined that the transcript on its face established a “reasonable probability” that “the sentencing judge enhanced punishment on the basis of a conviction void because [Leano] had not been afforded his Sixth Amendment right to counsel.
United States v. Tucker,
404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).”
Id.
at 362. We thus “ ‘remanded to the district court for resentencing without consideration of any prior convictions which is [sic] invalid under
Gideon v. Wainright,
372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).’ ”
Id.
at 363.
Upon remand the original sentencing judge reimposed the identical ten-year sentence, disclaiming reliance upon the invalid prior. Leano again appealed to this court. We consolidated the second
Leano
appeal with the appeal in
Farrow v. United States,
No. 74-2429. Although the panel in the consolidated
Farrow-Leano
appeal split as to the proper resolution of appellant Farrow’s claims, it was unanimous in remanding Leano’s cause for reconsideration of the sentence. Specifically, the panel wrote that the sentencing judge reimposed
upon Leano the identical ten-year sentence which the
Leano I
record shows he thought to be the “minimum” (based on the erroneous view that Leano was a second offender) at the time of the original sentencing.
See
494 F.2d at 362-363 n.3. During the resentencing proceeding, the judge reiterated his earlier disclaimer of reliance on the certification of a prior conviction at the original sentencing even though, as we concluded in
Leano I,
the sentencing transcript manifests otherwise. In addition, the judge gave an “explanation” of his original sentencing at some length, taking the position that he had relied on a recommendation of a ten-year sentence contained in the presentence report. . . . However, the
cover page of that presentence report . clearly indicates that the report was prepared under the assumption that Leano was a second offender . Hence it appears that the judge’s recollection of the sentencing proceeding has been dimmed by the intervening years
. [Wjhere, as here, there is no evidentiary basis for [the judge’s “finding” that the original sentence was not enhanced based on improper factors], it must be deemed clearly erroneous, the sentence must be vacated, and the prisoner resentenced . . . . The matter now before us is in essentially the same posture as in
Leano I.
The substantial lingering doubt as to whether the original ten-year sentence may have been based on improper considerations hovers over the new sentence. Accordingly, that sentence must be vacated and the cause remanded for a fresh resentencing. For the judge’s sake and the appearance of justice, the Chief Judge of the United States District Court for the Central District of California shall on remand designate a different judge to conduct the resentencing.
After the consolidated
Farrow-Leano
decision was issued, a rehearing en banc was granted in the cause of
Farrow.
No rehearing was requested in the cause of
Leano.
Accordingly, the mandate in
Leano
was not withdrawn. See
Farrow v. United States,
580 F.2d 1339, 1344 n.1 (9th Cir. 1978) (en banc). Nonetheless, the consolidated
Farrow-Leano
opinion was withdrawn.
Gelfuso v. Bell,
590 F.2d 754, 755 (9th Cir. 1978).
Pursuant to the
Leano
mandate, the remand of
Leano
was assigned to a different judge for reconsideration of the sentence. That judge reduced Leano’s sentence from ten years to eight years on each count, to run concurrently.
Although the consolidated panel decision in
Farrow-Leano
has been withdrawn, and although the cause of
Leano
was not directly in issue in the en banc consideration of
Farrow,
this court en banc placed its imprimatur upon the panel’s unanimous
Leano
analysis. The court en banc noted:
[Wjhere the district judge’s disclaimer of reliance on the invalid priors is in fact contradicted by the record, we have held that the case must be remanded for re-sentencing without consideration of any prior conviction invalid under
Gideon. Leano v. United States,
494 F.2d 361 (9th Cir. 1974). . . .
Leano
represented an exception to the procedures [approved in
Farrow
for
Tucker
claims] where there was “no support in the record for the court’s statement that it had not relied on the prior,” and indeed, “it was clear that the trial judge imposed the ten-year sentence
because of
the prior conviction.”
Wilson v. United States,
534 F.2d at 131 (emphasis added).
Farrow,
580 F.2d at 1348 (en banc) (footnote omitted).
The court en banc also approved of our direction that a different judge should conduct the resentencing. After noting that
“Tucker
petitions . . . should ordinarily be decided by the original sentencing judge,” 580 F.2d at 1351, the court en banc, through Judge Choy, added:
As our decisions in
Leano . . .
and
Wilson v. United States,
534 F.2d 130, 133 (9th Cir. 1976) make clear, there is an important distinction between the ordinary
Tucker
case and cases in which the sentencing judge’s determination of a § 2255
Tucker
petition is inconsistent with the record. The fact that the record in
Leano
contradicted the sentencing judge’s disclaimer of reliance on an allegedly invalid prior — he considered the minimum sentence to be ten years, which could not have been the case if he had disregarded the challenged conviction— was the basis for the author’s concurrence in . remanding the case to a new judge for resentencing. . As stated in
United States v. Robin,
553 F.2d 8, 11 (2d Cir. 1977), “[i]n the rare case where a judge has repeatedly adhered to an erroneous view after the error is called to his attention [citation omitted], reassignment to another judge
may be advisable in order to avoid ‘an exercise in futility [in which] the Court is merely marching up the hill only to march right down again,’
United States v. Tucker,
404 U.S. 443, 452, 92 S.Ct. 589, 594, 30 L.Ed.2d 592 (1972) (Blackmun, J., dissenting).”
Id. at 1351-52 n.20.
In short, this court’s en banc decision in
Farrow
confirms the propriety of the remand of
Leano
to the district court with instruction for resentencing by a different judge.