Opinion
No. 20639.
June 5, 1964.
Robert E. McCaffrey, Atlanta, Ga., for appellant.
Edward A. Kaufman, Asst. U.S. Atty., William A. Meadows, Jr., U.S. Atty., Southern Dist. of Florida, Miami, Fla., for appellee.
Before WISDOM and GEWIN, Circuit Judges.
Judge Cameron, the third Judge constituting the court which originally heard this case, died subsequent to the filing of the per curiam opinion in this case. The present decision and opinion is rendered by a quorum of the court pursuant to Title 28 U.S.C.A. § 46, Judge Cameron having taken no part in this decision.
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. 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 the following opinion is substituted:
McCaffrey v. United States, 5 Cir., 325 F.2d 767.
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.