273 F2d 337 Smith v. United States

273 F.2d 337

Delage Larry SMITH, Appellant,
UNITED STATES of America, Appellee.

No. 17921.

United States Court of Appeals Fifth Circuit.

January 7, 1960.

Delage Larry Smith, in pro. per.

Thomas R. Ethridge, U. S. Atty., Lowell E. Grisham, Asst. U. S. Atty., Oxford, Miss., for appellee.

Before HUTCHESON, TUTTLE and BROWN, Circuit Judges.


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This is an appeal from an order denying a § 2255 (28 U.S.C.A.) motion to vacate a 15-year sentence based on a plea of guilty of illegally entering a bank with intent to commit a felony, 18 U.S. C.A. § 2113(a). Petitioner now contends that he was guilty only of larceny, 18 U. S.C.A. § 2113(b) which carries a maximum sentence of 10 years but that he was not guilty of unlawful entry, § 2113 (a), which has a maximum sentence of 20 years. Reliance on Prince v. United States, 1957, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370, is misplaced as the Prince case merely proscribes the pyramiding of sentences for unlawful entry with intent to commit a felony or larceny, § 2113(a), and the consummated larceny or robbery, § 2113(b). But this does not effect a merger of the two distinct offenses. United States v. Williamson, 5 Cir., 1958, 255 F.2d 512; Id., 5 Cir., 1959, 265 F.2d 236. Petitioner here was charged with and convicted of unlawful entry alone and the District Court was correct in concluding that the motion and the files and records of the case conclusively show that petitioner was entitled to no relief.