421 F.2d 190
UNITED STATES of America, Plaintiff-Appellee,
Louis Johnnie B. REED Defendant-Appellant.
United States Court of Appeals Fifth Circuit.
December 15, 1969.
Swep S. Taylor, Jr., Jackson, Miss. (Court-appointed) for defendant-appellant.
Robert E. Hauberg, U. S. Atty., Joseph E. Brown, Jr., Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellee.
Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN and CARSWELL, Circuit Judges.
The Court sitting in banc recedes from and overrules the decision of the majority of the panel in this case,1 for the reasons set forth by Judge Simpson in dissent.
In doing so, we do not consider it necessary to disturb the holding of Hellman v. United States, 5 Cir. 1964, 339 F.2d 36, 38, as applied to the facts in that case. The facts are distinguished from those in this case by Footnote 5 to Judge Simpson's dissent, 414 F.2d at 443.
One further observation is in order. We deem irrelevant to our decision, and do not associate ourselves with, the recitation of the matters occurring at the time of Reed's sentence, set forth in the latter portion of Footnote 2 of the dissent, 414 F.2d at 441.
The judgment appealed from is reversed and remanded for further proceedings below. Let our mandate issue immediately.
Reversed and remanded.
COLEMAN, Circuit Judge, respectfully dissents.