United States of America, Plaintiff-appellee, v. Harman Victor Usher, Defendant-appellant, 493 F.2d 1356 (5th Cir. 1974)

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US Court of Appeals for the Fifth Circuit - 493 F.2d 1356 (5th Cir. 1974) May 20, 1974

Edward C. Stone, Atlanta, Ga. (Court-appointed), for defendant-appellant.

William Schloth, U. S. Atty., Macon, Ga., for plaintiff-appellee.

Before GEWIN, GODBOLD and CLARK, Circuit Judges.

BY THE COURT.

Although the record in this cause presents a substantial question as to whether the sentence imposed is an illegal sentence or a sentence imposed in an illegal manner, within the meaning of Fed. R. Crim. P. 35, and despite the fact that defendant's correspondence with the district court from which the present appeal has been allowed occurred more than 120 days after sentence was imposed, this court deems it just under the circumstances to remand this cause to the district court for the making of express findings as to whether at the time sentence was imposed the defendant, who was then a youth offender, would not derive benefit from treatment under 18 U.S.C. § 5010(b). United States v. Dover, 489 F.2d 688 (5th Cir. 1974). Upon making such express findings, the court below is directed to supplement the record on this appeal with such findings.

Remanded.


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Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409