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549 F2d 313 Locklear v. United States

549 F.2d 313

Alton B. LOCKLEAR, Appellant,
v.
UNITED STATES of America, Appellee.

No. 74-1600.

United States Court of Appeals,
Fourth Circuit.

Argued Nov. 11, 1975.
Decided March 2, 1976.

T. J. Markow, Richmond, Va. (Court-appointed) (Shaia, Stout & Markow, Richmond, Va., on brief), for appellant.

Christine A. Witcover, Asst. U. S. Atty., Raleigh, N. C. (Thomas P. McNamara, U. S. Atty., Raleigh, N. C., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL, FIELD and WIDENER, Circuit Judges, sitting in banc.

PER CURIAM:

1

The denial of the motion of Alton B. Locklear under 28 U.S.C. § 2255 to vacate his sentence is vacated and remanded for reconsideration in the light of Stepheney v. United States, 516 F.2d 7 (4 Cir. 1975). Stepheney holds that in order to terminate further inquiry the district judge must be able to say, either from recollection or reconstruction, that had he known at the time of sentencing that the earlier convictions were invalid, he would have nevertheless imposed the same sentence.

2

VACATED AND REMANDED.

3

DONALD RUSSELL, FIELD and WIDENER, Circuit Judges, dissenting:

4

The district judge acted upon Locklear's motion during the interim between our decisions in Brown v. United States, 483 F.2d 116 (1973), and Stepheney, supra. To us, the record discloses faithful adherence to the precepts of Brown and we would affirm.