The opinion of the court was delivered by: HIGGINBOTHAM
The defendant, presently incarcerated at the Federal Penitentiary, Atlanta, Georgia, has filed a motion pursuant to Rule 35, F.R.Crim.P., seeking to correct an allegedly illegally imposed sentence.
In his motion the defendant, serving a cumulative sentence of twelve years, arising from convictions on a five count indictment charging bank robbery and conspiracy,
seeks to have the sentences imposed on several of the counts vacated on the ground that it was improper to give more than one sentence on the counts arising under 18 U.S.C. § 2113 - the Bank Robbery Statute. Relying on Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370 (1958), the defendant argues that although describing separate offenses, the several provisions of 18 U.S.C. § 2113 here involved - § 2113(a), (b) and (d)
- "merge" upon conviction for purposes of sentencing and are not consecutively punishable where only one bank and one robbery are involved, even if the total sentence imposed on the several counts is less than the maximum sentence which could be imposed on any single count. The result sought by the defendant is to have sentence vacated on three of the four bank robbery counts leaving him with a prison term of eight years rather than the twelve which was imposed. I originally denied the motion by Order dated April 1, 1968.
At the time that the order was entered, motions to correct sentence had been filed in three similar bank robbery cases raising the same issue. I contemplated holding hearings within thirty days on the other cases, and writing one opinion to cover the issues of law raised in those matters and the instant one. For a variety of reasons the arguments on the additional three cases could not be scheduled until July, 1968. But since entering the Order of April 1, 1968, denying the motion to correct sentence, certain cases which were not cited
in any of the briefs or in the oral arguments made on the defendant's motion, have been called to my attention making it desirable for me to set forth precisely the basis upon which I denied the motion in this case. Particularly in view of Miller v. United States,
supra, I recognize that the matter is not without difficulty, and that there are substantial reasons on each side which support vacating or not vacating the sentences on several of the counts. But in my opinion those reasons in favor of denying the motion to vacate have somewhat greater weight.
Perhaps the most decisive factors in justifying my denial of the relief requested are:
(1) My intent at the time of sentencing that the defendant receive a total sentence of twelve years in a situation wherein under the statute and the indictments in issue he could have received a maximum term of imprisonment of thirty years; and
(2) Neither the Supreme Court of the United States nor the Court of Appeals for the Third Circuit has ruled adversely on this factual situation.
At the sentencing, after denying the defendant's motions for a new trial, the Court addressed the defendant as follows:
Mr. Welty, I will hear from you anything you would like to say, or your mother whom I recognize in the courtroom, or anyone else who wants to say anything I will be pleased to hear from them.
THE DEFENDANT: I don't have anything to say, Your Honor.
THE COURT: Do you want to call the mother up and see if she ...