Marvin McClain v. United States

VAN GRAAFEILAND, Circuit Judge:

This is an appeal from an order of Judge Cooper of the United States District Court for the Southern District of New York which denied appellant’s petition for vacation of an allegedly illegal sentence. For reasons hereafter expressed, we vacate the sentence in its entirety and remand for resentencing.

There is no dispute as to the facts. In July 1975 appellant participated in an armed bank robbery during which he shot a guard. Appellant was arrested shortly after the robbery and indicted for bank robbery, 18 U.S.C. § 2113(a), and armed bank robbery, 18 U.S.C. §…