281 F.2d 230 (10th Cir. 1960), 6354, Clark v. United States

Docket Nº:6354.
Citation:281 F.2d 230
Party Name:James CLARK, Appellant, v. UNITED STATES of America, Appellee.
Case Date:June 24, 1960
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 230

281 F.2d 230 (10th Cir. 1960)

James CLARK, Appellant,

v.

UNITED STATES of America, Appellee.

No. 6354.

United States Court of Appeals, Tenth Circuit.

June 24, 1960

Page 231

James Clark on brief for appellant.

Erwin A. Cook, Oklahoma City, Okl. (Paul W. Cress, U.S. Atty., Oklahoma City, Okl., was with him on brief), for appellee.

Before MURRAH, Chief Judge, and PHILLIPS and BREITENSTEIN, Circuit judges.

MURRAH, Chief Judge.

This is an appeal from a judgment of the District Court of the Western District of Oklahoma, denying petitioner's second successive motion under Section 2255, 28 U.S.C., to vacate a sentence and judgment on an indictment containing two counts, the first of which charged the robbery of a national bank by putting lives in jeopardy in violation of Title 12 U.S.C. § 588(b), now 18 U.S.C. § 2113(d); and the second of which charged the kidnapping of certain named

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individuals to avoid apprehension for the commission of the robbery, in violation of Section 588c, now 18 U.S.C. § 2113(e). The contention is that for sentencing purposes, the federal bank robbery act (18 U.S.C. § 2113) states but a single offense upon which only a single sentence may be imposed, and that the court therefore exhausted its sentencing power when it imposed a valid alternative sentence of 20 years on the first count of the indictment, and was thereafter powerless to impose a concurrent sentence of 99 years on the second or kidnapping count of the indictment.

In the former case (Clark v. United States, 10 Cir., 184 F.2d 952), we held, following Ward v. United States, 10 Cir., 183 F.2d 270, and earlier cases, that Section 588c, now Section 2113(e), defined separate and distinct offenses from Section 588b, now 2113(d), for which separate and successive sentences were authorized. We took the alternative view, however, that even though the crime of aggravated robbery defined in Subsection b became merged in the greater crime of kidnapping to avoid apprehension defined in Subsection c, the sentence imposed under Subsection c was nevertheless valid, and the imposition of the lesser sentence under Subsection b, to run concurrently, was not reversibly prejudicial. And see also Purdom v. United States, 10 Cir., 249 F.2d 822.

On this appeal we are asked to reexamine our holding and reasoning in the light of Prince v. United States, 352 U.S. 322, 77...

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