938 F.2d 1255 (11th Cir. 1991), 89-8339, United States v. Woodard

Docket Nº89-8339.
Citation938 F.2d 1255
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Kimmy Lee WOODARD, Defendant-Appellant.
Case DateAugust 14, 1991
CourtUnited States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1255

938 F.2d 1255 (11th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kimmy Lee WOODARD, Defendant-Appellant.

No. 89-8339.

United States Court of Appeals, Eleventh Circuit

August 14, 1991

Rehearing Denied Sept. 23, 1991.

Page 1256

Jerald Robert Hanks, Lawson & Davis, Atlanta, Ga., for defendant-appellant.

Nicolette Templer, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before COX and BIRCH, Circuit Judges, and ENGEL [*], Senior Circuit Judge.

PER CURIAM:

Kimmy Lee Woodard appeals both his conviction on bank robbery and weapons charges and his sentence. We affirm his conviction, but vacate a portion of his sentence and remand for resentencing.

Facts

Wearing a mask, jacket and driving gloves and carrying a machine pistol, Woodard robbed a branch of the Citizens and Southern National Bank. He took $26,000 from the teller drawers and began to leave the bank, but the police had been summoned by silent alarm and were waiting outside. Woodard first went back inside the bank, but surrendered to police several minutes later.

At trial, four eyewitnesses identified Woodard as the robber. He was convicted on three counts of bank robbery and weapons charges. Woodard had been previously convicted of three violent felonies.

The statutory maximum penalty on Count 1, attempted bank robbery and assault with a dangerous weapon, is 25 years imprisonment; the statutory maximum penalty for Count 3, possession of firearm by a convicted felon, is life imprisonment. With Woodard's three previous felony convictions, his recommended sentencing range under the Guidelines was 360 months to life. The district court imposed a general sentence of 360 months on Counts 1 and 3.

Discussion

As an initial matter, Woodard challenges his conviction on the grounds that the trial court's charge to the jury impermissibly amended the indictment and diluted the requirement that the government prove its case beyond a reasonable doubt. We have considered these arguments and find them to be without merit. We therefore affirm Woodard's conviction.

Woodard also challenges his sentence. He contends that the district court erred by imposing a general sentence on Counts 1 and 3, rather than separate and specific sentences for each count. 1 A general sentence is an undivided sentence for more than one count that does not exceed the maximum possible aggregate sentence for all the counts but does exceed the maximum allowable sentence on one of the counts. See Benson v. United States, 332 F.2d 288, 291 (5th Cir.1964). 2 Woodard correctly observes that general sentences have been held to be per se illegal in our circuit, and require remand for resentencing. United States v. Scott, 664 F.2d 264 (11th Cir.1981). Woodard therefore asks that we vacate his sentence on Counts 1 and 3 and remand to the district court for distinct sentences on each count.

The government argues that we need not do so. The government recognizes the authority of Scott, of course, but contends that the adoption of the federal sentencing guidelines has changed the legal context sufficiently so that we no longer need follow the rule of that case. According to the government, the primary reason for the prohibition against general sentences is the deleterious effect on parole considerations of the uncertainty created by a general sentence. Since the Sentencing Guidelines abolish parole, the primary problem with general sentences is removed, thus obviating

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the need for a per se rule against them. Instead, the government proposes we judge all sentences, including general sentences, by the standard we set out in United States v. Buide-Gomez, 744 F.2d 781, 783 (11th Cir.1984), cert. denied, 470 U.S. 1059, 105 S.Ct. 1774, 84 L.Ed.2d 833 (1985): a sentence is acceptable if it is "clear and definite" and "so complete as to need no construction of a court to ascertain its import." Under this standard, the government contends, the import of Woodard's sentence is clear: he has been sentenced to 30 years in prison; he is not eligible for parole; he will serve 30 years in prison. The government therefore urges us to affirm Woodard's sentence on Counts 1 and 3.

We reject the...

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