497 F2d 1384 United States v. Fonseca

497 F.2d 1384

UNITED STATES of America, Plaintiff-Appellee,
v.
Robert FONSECA, Defendant-Appellant.

No. 73-2875.

United States Court of Appeals, Fifth Circuit.

Aug. 9, 1974.

Appeal from the United States District Court for the Western District of Texas; John H. Wood, Jr., Judge.

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1

Joseph A. Calamia, John L. Fashing, El Paso, Tex., for defendant-appellant.

2

William Sessions, U.S. Atty., San Antonio, Tex., Edward S. Marquez, Asst. U.S. Atty., El Paso, Tex., for plaintiff-appellee.

3

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

4

(Prior opinion 490 F.2d 464.)

5

Before COLEMAN, AINSWORTH and GEE, Circuit Judges.

PER CURIAM:

6

In view of the Supreme Court's recent decision in Dorsynski v. United States, U.S. , 94 S.Ct. 3042, 40 L.Ed.2d (1974) relative to the sentencing requirements to be met by the district court under subsection 5010(d) of the Federal Youth Corrections Act, 18 U.S.C. 5005, et seq., petitioner Fonseca's petition for rehearing is granted to the extent that the matter is remanded for resentencing under the guidelines of Dorsynski. In all other respects the petition is denied.

7

The petition for rehearing en banc is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rhearing en banc (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12), the petition for rehearing en banc is denied.

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