William Ernest Jenkins v. United States

298 F.2d 443, 1962 U.S. App. LEXIS 5925

Opinion

PER CURIAM.

On August 16,1961, we filed an opinion reversing the judgment of the United States District Court for the Northern District of Georgia and remanding the case for the re-sentencing of appellant William Ernest Jenkins, 5 Cir., 293 F.2d 96; and on December 29, 1961, we entered an order denying appellee’s petition for rehearing. These steps were taken on the assumption that they were required by recent decisions of the Supreme Court of the United States, Green v. United States, Feb. 27, 1961, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670, and Van Hook v. United States, March 27, 1961, 365 U.S. 609, 81 S.Ct. 823, 5 L.Ed.2d 521.

The appellee has filed a second petition for rehearing, contending that what we had done was erroneous under the decision of the Supreme Court of the United States in Hill v. United States, January 22, 1962, U.S., 82 S.Ct. 468. We think that the position of the appellee is correct.

Accordingly, the second petition for rehearing and the motion for leave to file it are granted, the opinion of August 16, 1961 is withdrawn and the order entered thereon and the order on petition for rehearing are set aside, and the judgment of the District Court is affirmed.