In what circumstances will a federal judge vacate a judgment that has been found unconstitutional under Section 2255 of the Criminal Code?

The dissent asserts that the district court must vacate the judgment. On that point there is no dispute. The dissent, however, goes on to say: "Structurally, when the error permitting 2255 relief lies in the entry of particular convictions, the permissible remedies are the discharge of the prisoner or the granting of a new trial as to the unconstitutional convictions" (emphasis in original). Here, too, we are in agreement. The dissent then goes on, however, to discuss United States v. Marchese, 341 F.2d 782 (9th Cir.), cert. denied, 382 U.S. 817, 86 S.Ct. 41, 15 L.Ed.2d 64 (1965). In that case, after a jury trial the defendants contended that their convictions had been obtained unconstitutionally. Id. at 787. The district court agreed and reduced their sentences

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