Opinion
No. 71-1563.
December 17, 1971.
Bertrand B. Pogrebin, Mineola, N.Y., for defendant-appellant; Rains, Pogrebin Scher, Mineola, N.Y., Jack D. Young, Kimble, Schapiro, Stevens, Harcha Young, Portsmouth, Ohio, on brief.
James F. Cook, Asst. U.S. Atty., Lexington, Ky., for plaintiff-appellee; Eugene E. Siler, Jr., U.S. Atty., Lexington, Ky., on brief.
Appeal from the United States District Court for the Eastern District of Kentucky.
Before PHILLIPS, Chief Judge, and WEICK and CELEBREZZE, Circuit Judges.
ORDER
In the previous appeal of this case we affirmed the judgment of the District Court but remanded for the purpose of reconsidering the five-year-sentence which was the maximum sentence provided by statute, because we were of the view that it was excessive and out of proportion to the offense. We retained jurisdiction to consider the sentence imposed upon the remand. United States v. McKinney, 427 F.2d 449 (6th Cir. 1970).
Upon remand, the District Court imposed the same maximum sentence. The Court, however, did not have the benefit of our subsequent decision in United States v. Daniels, 446 F.2d 967 (6th Cir. 1971).
We again remand for further consideration of the sentence in the light of Daniels.