What is the test for resentencing in a criminal case where a judge said in a pre-sentence report that prior convictions were challenged and the sentence was too lenient?

We view the judge's comments as ambiguous and the record as unclear. Accordingly, we remand the proceeding so that the district judge may make brief findings as to (1) whether the pre-sentence report contained the challenged convictions; and (2) if so, whether he would have given a different sentence if he had known they were constitutionally invalid. If the answer to both questions is yes, the judge should determine whether the prior convictions were had without counsel, and, if so, he should resentence. If the answer to either (1) or (2) is in the negative, the judge should simply make a finding to that effect, cf.

[496 F.2d 620]

Schawartzberg v. United States, 382 F. 2d 1012 (2d Cir. 1967) (per curiam), cert. denied, 391 U.S. 928, 88 S.Ct. 1817, 20 L.Ed.2d 669 (1968); United States v. Janiec, 464 F.2d 126, 132 (3d Cir. 1972), and not disturb the sentence.

[496 F.2d 620]