495 F2d 652 Johnson v. United States

495 F.2d 652

John Richard JOHNSON, Appellant,
UNITED STATES of America, Appellee.

No. 74-1077.

United States Court of Appeals, Eighth Circuit.

Submitted April 16, 1974.
Decided April 19, 1974.

John Richard Johnson, pro se.

Robert G. Renner, U.S. Atty., and Daniel M. Scott, Minneapolis, Minn., for appellee.

Before HEANEY and STEPHENSON, Circuit Judges, and SMITH, Senior District Judge.1


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John Richard Johnson was convicted by a jury of one count of an Information charging robbery of a federally-insured bank (18 U.S.C. 2113(a)) accompanied by assault by the use of a dangerous weapon (18 U.S.C. 2113(d)). The District Court imposed a single general sentence of fifteen years imprisonment for violating 18 U.S.C. 2113(a) and (d).


Johnson moved for correction of his sentence in the District Court under Rule 35 of the Federal Rules of Criminal Procedure. He contended that under Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), and its progeny, it was illegal to impose a general sentence for violating both subsections (a) and (d) of 18 U.S.C. 2113 for a single bank robbery. The District Court denied the motion and this appeal resulted. We affirm.

The District Court correctly stated:


(1) a single offense had been committed;


(2) a consummated bank robbery may encompass several of the graduated offenses proscribed by 18 U.S.C. 2113;


(3) Prince precluded the imposition of separate sentences for the violation of each subsection; and


(4) a single general sentence for violating (a) and (d) was permissible.


The District Court's disposition is in accord with our opinion in Gerberding v. United States, 471 F.2d 55 (8th Cir. 1973). There, we remanded to the District Court for the imposition of a single general sentence where the defendant was convicted of violating more than one subsection of 18 U.S.C. 2113, and was given separate sentences. See also, United States v. Corson, 449 F.2d 544, 551 (3rd Cir. 1971).

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TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation