The opinion of the court was delivered by: HIGGINBOTHAM
In his petition under 28 U.S.C. § 2255, John Jacob Welty seeks a re-computation of sentence which he contends would entitle him to his immediate release from imprisonment. The factual background to the present petition may be summarized as follows:
The 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 and violation of 18 U.S.C. § 371 -- four years.
Count 2: Robbery and 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. In imposing this structure of sentences I made clear that it was my intention that the defendant serve a maximum term of imprisonment of twelve years
for bank robbery, even though the total cumulative sentence imposed was significantly less than the statutory maximum which could have been imposed if defendant were sentenced only on Count 2 -- 20 years, or only on Count 5 -- 25 years.
In a subsequent petition under Rule 35, F.R. Crim. P., the defendant contended that the sentences constituted "multiple sentences for a single offense" and thus were invalid under the decision of the United States Supreme Court in Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370 (1957). This petition was denied and dismissed, but the Third Circuit subsequently reversed,
holding that the rationale of Prince v. United States was applicable to Welty's sentence structure even though the total terms of imprisonment to which the defendant had been sentenced did not exceed the sentence which could have been imposed on Count 2 or 5. The Court of Appeals concluded: "Welty's motion to correct the illegal sentences should have been granted. The sentences under counts 2, 3, and 4 should be declared invalid and vacated, and the sentences under count 1 for conspiracy and count 5 for violation of § 2113(d) will stand as originally imposed for terms of four years each." 426 F.2d at 619.
Welty now contends that because the sentences on the first three counts were made consecutive, and the sentences on Counts four and five were made concurrent with the sentence on Count three, the subsequent vacation of the sentences of Counts two and three mean that the valid sentence under Count five must now be considered as concurrent with, rather than consecutive to, the valid sentence imposed on Count one. According to this view, Welty would be considered to have commenced serving the term imposed under Count 5 on March 8, 1967, the day he was taken into federal custody.
In his contention that the sentence under Count 5 must be considered concurrent with the sentence under Count 1 the defendant relies on Jenkins v. United States, 389 F.2d 765 (10th Cir. 1968). In Jenkins, the sentences originally imposed were as follows:
"For a period of five (5) years on Count 2 of the indictment, for a period of five (5) years on Count 3 of the indictment, the sentence on Count 3 of the indictment to run concurrently with the sentence imposed on Count 2, and for a period of three (3) years on Count 4 of the indictment, the sentence on ...