485 F.2d 1352 (5th Cir. 1973), 73-1539, Sullivan v. United States

Docket Nº:73-1539 [*]
Citation:485 F.2d 1352
Party Name:Richard M. SULLIVAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Case Date:October 10, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1352

485 F.2d 1352 (5th Cir. 1973)

Richard M. SULLIVAN, Petitioner-Appellant,

v.

UNITED STATES of America, Respondent-Appellee.

No. 73-1539 [*]

United States Court of Appeals, Fifth Circuit.

October 10, 1973

Timothy J. Armstrong, Miami, Fla., (Court-Appointed.), for petitioner-appellant.

Robert W. Rust, U. S. Atty., Carol M. Anderson, Asst. U. S. Atty., Miami, Fla., for respondent-appellee.

Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

RONEY, Circuit Judge:

Appellant Richard Michael Sullivan was convicted of taking money from a federally insured bank by force and intimidation of one of its employees, in violation of 18 U.S.C.A. § 2113(a), and avoiding or attempting to avoid apprehension by forcing a bank employee to accompany him without consent, in violation of 18 U.S.C.A. § 2113(e). He was sentenced to concurrent sentences of sixteen years imprisonment under subsection (a) and twenty years imprisonment under subsection (e). This Court affirmed his convictions on direct appeal, but did not consider the propriety of the sentences. United States v. Sullivan, 456 F.2d 1273 (5th Cir. 1972).

Page 1353

Sullivan now brings this Section 2255 motion, contending that the District Court erred when it imposed separate, concurrent sentences. The District Court, in a lengthy opinion, denied the motion, reasoning that Congress intended to create two separate offenses when it enacted subsections (a) and (e). We reverse, holding that subsection (e) of the federal bank robbery statute, 18 U. S.C.A. § 2113(e), cannot be the basis of a separate sentence.

The federal bank robbery statute states:

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or

Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny-

Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.

(b) Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both; or

Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value not exceeding $100 belonging to...

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