Freedman, Aldisert and Gibbons, Circuit Judges.
Defendant Welty was convicted on four counts under the Federal Bank Robbery Act (18 U.S.C. § 2113) and a count for conspiracy, all relating to the same bank robbery. On April 12, 1965, he was sentenced to imprisonment on the five counts, as follows:
Count 1: conspiracy in violation of 18 U.S.C. § 371 -- four years.
Count 2: robbery in violation of 18 U.S.C. § 2113(a) -- four years.
Count 3: unlawful entry with intent to commit a felony in violation of 18 U.S.C. § 2113(a) -- four years.
Count 4: taking and carrying away money with intent to steal in violation of 18 U.S.C. § 2113(b) -- four years.
Count 5: unlawful assault with a dangerous weapon in the commission of the above offenses other than conspiracy in violation of 18 U.S.C. § 2113(d) -- four years.
The sentences on the first three counts were made consecutive, and the sentences on counts 4 and 5 each were made concurrent with the sentence on count 3.
Two years later, on May 16, 1967, Welty filed a motion under Federal Rule of Criminal Procedure 35 to correct what he claimed were illegal sentences under the bank robbery convictions.*fn1 The petition was founded on the claim that the sentences under § 2113 were multiple sentences for a single offense, in violation of the principle of Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370 (1957), under which there can be a valid sentence only on one of these four counts.*fn2 The district judge denied the motion. He distinguished Prince and concluded that there was no forbidden pyramiding of sentences because here the total of the sentences under the four counts was below the statutory maximum for any one of them, whereas in Prince the combined sentences exceeded the statutory maximum for each count. He therefore held that the sentences, which carried out his intention that Welty should receive a total of 12 years imprisonment, should stand unchanged.*fn3
In Prince, the Supreme Court was called upon to construe the intention of Congress in enacting § 2113. The Court held that where there was a conviction of bank robbery the lesser offense of entering a bank with intent to commit robbery was merged into it and that Congress did not intend in such a case that separate punishments should be imposed under the statute for both the merged and ultimate offenses.*fn4
Prince did not merely bar the imposition of a series of sentences greater than what Congress intended. It forbade the district courts from exceeding their power by imposing multiple sentences as if separate crimes had been committed when in fact Congress had created but one ultimate offense.
The principle of Prince may not be made inoperative because of the fact that the total of the sentences pyramided in that case actually exceeded the maximum sentence authorized on either count. This is demonstrated by Heflin v. United States, 358 U.S. 415, 79 S. Ct. 451, 3 L. Ed. 2d 407 (1959) where the court held unjustified a separate sentence for violation of subsection (c) of § 2113 where the defendant was guilty of violating subsection (d). The court held that it was not the intention of Congress to multiply offenses by punishing a bank robber guilty under subsection (d) by also imposing a sentence under subsection (c) for receiving or possessing property knowing it to have been stolen from the bank. The facts show that the total of the sentences on both counts in Heflin was less than the statutory maximum authorized for the valid subsection (d) count alone. Similarly, in our recent decision in United States v. Chester, 407 F.2d 53 (3 Cir.), cert. denied 394 U.S. 1020, 89 S. Ct. 1642, 23 L. Ed. 2d 45 (1969), handed down after the district court's decision in this case, we held that a ...