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McCLAIN v. UNITED STATES

No. 1393, Docket 80-2021.

643 F.2d 911 (1981)

Marvin McCLAIN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

United States Court of Appeals, Second Circuit.

Decided March 2, 1981.

Attorney(s) appearing for the Case

Phylis Skloot Bamberger, New York City (The Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for petitioner-appellant.

Benito Romano, Asst. U. S. Atty., New York City (John S. Martin, Jr., U. S. Atty., S.D.N.Y., New York City, of counsel, Gregory L. Diskant, Asst. U. S. Atty., New York City, on the brief), for respondent-appellee.

Before VAN GRAAFEILAND and NEWMAN, Circuit Judges, and NEAHER, District Judge.

VAN GRAAFEILAND, Circuit Judge:

This is an appeal from an order of Judge Cooper of the United States District Court for the Southern District of New York which denied appellant's petition for vacation of an allegedly illegal sentence. For reasons hereafter expressed, we vacate the sentence in its entirety and remand for resentencing.

There is no dispute as to the facts. In July 1975 appellant participated in an armed bank robbery during which he shot a guard...

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