Summary
In White v. United States, 402 F.2d 72 (5th Cir. 1968), the Fifth Circuit reaffirmed its earlier views in Heflin, supra, and Williamson v. United States, 265 F.2d 236 (5th Cir. 1959) that although sentences for violations of subsections (a) and (b) cannot be pyramided so as to exceed the maximum provided under the more severe, this does not invalidate either of two sentences imposed if within the maximum.
Summary of this case from Stephen v. United StatesOpinion
No. 25147.
October 4, 1968. Rehearing Denied November 5, 1968.
Dominick J. Salfi, Orlando, Fla., for appellant.
Robert B. McGowan, Asst. U.S. Atty., Tampa, Fla., for appellee.
Before TUTTLE, COLEMAN and MORGAN, Circuit Judges.
On this appeal from the conviction and sentence to two concurrent terms of ten years for violation of 18 U.S.C.A. § 2113(a) and 18 U.S.C.A. § 2113(b), we conclude that the trial court did not err as to any of the grounds asserted.
While it is true that actual time to be served by one convicted of the violations of these two sections cannot be pyramided so as to exceed the maximum provided under the more severe, Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370, this does not invalidate either of two sentences to be served concurrently if within the maximum. See Williamson v. United States, 5 Cir., 265 F.2d 236. In United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210, the Supreme Court said:
"We agree as to the invalidity of § 5601(b)(1) and the reversal of the convictions on Count 1. It is unnecessary, however, to consider the validity of § 5601(b)(4) and the convictions on Count 2 since the sentences on that count were concurrent with the sentences, not here challenged, which were imposed on Count 3. United States v. Gainey, 380 U.S. 63, 65 [ 85 S.Ct. 754, 756, 13 L.Ed.2d 658]; Sinclair v. United States, 279 U.S. 263, 299 [ 49 S.Ct. 268, 273, 73 L.Ed. 692]."
We have carefully considered each of the other grounds of appeal and find them to be without merit.
The judgment is affirmed.