Robert Emmett McCaffrey v. United States

332 F.2d 619, 1964 U.S. App. LEXIS 5163

Opinion

PER CURIAM.

The per curiam opinion in this cause was rendered prior to the decision in United States v. Behrens, (December 9, 1963) 375 U.S. 162, 84 S.Ct. 295, 11 L.Ed. 2d 224, although not published until January 2, 1964. 1 We consider such per curiam opinion by this court to be in conflict with Behrens. Accordingly, it is ordered that the per curiam is herewith recalled and in lieu of that opinion thé following opinion is substituted:

In this case there was a preliminary commitment of the defendant under 18 U.S.C.A. § 4208(b). The defendant was absent when final sentence was fixed. Under Behrens such final sentence cannot be fixed in the absence of the defendant. The judgment of the lower court is reversed and the cause is remanded for proceedings consistent with this opinion.

The petition for rehearing, in all other respects, is denied.

Reversed and remanded.

1 . McCaffrey v. United States, 5 Cir., 325 F.2d 767.