McClain v. United States

• Decision Date: 28 September 1979
• Docket Number: No. 79 Civ. 2438 (IBC).,79 Civ. 2438 (IBC).
• Parties: Marvin P. McCLAIN, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of New York

478 F. Supp. 732

Marvin P. McCLAIN, Petitioner, v. UNITED STATES of America, Respondent.

No. 79 Civ. 2438 (IBC).

United States District Court, S. D. New York.

September 28, 1979.

Marvin P. McClain, pro se.

Robert B. Fiske, Jr., U. S. Atty., Southern District of New York, New York City, for respondent; Steven M. Schatz, Asst. U. S. Atty., New York City, of counsel.

OPINION

IRVING BEN COOPER, District Judge.

In this pro se petition under 28 U.S.C. § 2255, we are confronted with the issue of the retroactivity of important changes in the law of prosecuting and sentencing persons who commit armed bank robbery. In Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), the United States Supreme Court held that a defendant may not be sentenced under both 18 U.S.C. § 2113(d)¹ (armed bank robbery) and 18 U.S.C. § 924(c)² (use of a firearm to commit a felony). In Grimes v. United States, 607 F.2d 6, No. 79-2007 (2d Cir. Sept. 6, 1979), the Court of Appeals for the Second Circuit held that a court may not enter separate judgments of conviction for persons convicted of violating 18 U.S.C. § 2113(a)³ and § 2113(d), nor may the Government prosecute a person under 18 U.S.C. § 924(c) where the underlying felony, armed bank robbery, is prosecutable under 18 U.S.C. § 2113(d).

On December 3, 1975, several years prior to Simpson and Grimes, we sentenced petitioner to 15 years imprisonment under § 2113(d) and 10 years imprisonment under § 924(c) for a total of 25 years imprisonment. The sentence was structured in this manner in accordance with the express mandate of § 924(c) which requires that a sentence imposed thereunder is to run consecutively with the sentence on the underlying felony, here § 2113(d). Petitioner's sentence and his convictions under 18 U.S.C. §§ 2113(a), 2113(d), and 924(c) are proper under the law as it stood prior to Simpson and Grimes. For the reasons assigned below, we decline to apply either Simpson or Grimes⁴ retrospectively to the instant application.

Facts

On June 23, 1975, petitioner Marvin P. McClain, Mildred Skeete and Leroy McClain robbed a branch of the Chase Manhattan Bank in New York City. During the robbery, petitioner shot and wounded a bank guard who became a quadraplegic and subsequently died. Petitioner and Skeete were apprehended shortly thereafter and indicted on October 3, 1975.⁵ On October 14, 1975, petitioner pleaded guilty to the three counts of the indictment in which he was named.⁶ He was sentenced on December 3, 1975 to a total of twenty-five years imprisonment.

Count 1 of the indictment charged petitioner and co-bank robbers with committing a bank robbery in violation of 18 U.S.C. § 2113(a). This count carried a maximum penalty of 20 years imprisonment and a $5,000 fine. Count 2 charged petitioner and his co-defendants with violating 18 U.S.C. § 2113(d), a subsection which provides for enhancement of the penalty to a maximum penalty of 25 years and a $10,000 fine where a defendant assaults a person or "puts in jeopardy the life of any person by the use of a dangerous weapon or device" during the course of the robbery. Count 3 charged petitioner, alone, with violating 18 U.S.C. § 924(c)(1) which provides for a penalty of not less than 1 year and no more than 10 years imprisonment where an accused uses a firearm in the commission of a federal felony. Under § 924(c), the penalty is mandated to run consecutively with the sentence on the underlying felony. As required by Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), Counts 1 and 2 were merged for the purposes of sentencing. Thus, at the time petitioner pleaded guilty, he faced a maximum penalty of 35 years imprisonment and a $10,000 fine.

We were fully cognizant of the possible 35 year sentence that petitioner faced and so stated at the time of the plea:

THE COURT: All right. I told your lawyer that I would not sentence you to the maximum of 35 years, that I would not exceed 25 years unless I saw good reason.

Over and above what was revealed to me up to this moment, if I should decide on the basis of reading a report about you from the Probation Department that the amount of sentence should exceed 25 years, I will allow you to withdraw your plea of guilty and send you to trial before another judge. Do you get it?

DEFENDANT McCLAIN: Yes, sir.

Transcript, October 14, 1975, p. 37, lines 3-12.

In deciding the appropriate sentence to impose, we inquired extensively into McClain's background and placed on the record the following statement:

THE COURT: . . . I will be glad to tell you the factors and the only factors that I am considering with regard to the defendant as a human being, aside from the act with which we must deal. You know he pled guilty to each of three counts.

DEFENDANT'S LAWYER: Yes, your Honour.

THE COURT: He is thirty-four. You know his prior criminal record. He was even a delinquent child. He got kicked around when he was growing up, and like a lot of children without the benefit of guidance he got himself into drugs and was held to account.

On one occasion he resisted arrest and struck a New York City Police Officer about the eye, causing his injury which required hospital treatment. He violated parole twice. His school record is miserable.

Scholarship, behaviour, attendance poor; low I.Q. Addicted to heroin and cocaine. At the time of his arrest addicted to valium. $200 daily habit.

He enrolled in numerous drug rehabilitation programs, all to no avail. There is no record of employment. He has sustained himself by what we call street activities. Apparently of an illegitimate nature. And frankly he has shown no remorse. There is hardly a thing that I can pick up out of the record, and out of the wreckage of this man's life so far that he himself has created, that I can hold onto.

I think one of the biggest things to give him credit for is the fact that he followed his lawyer's advice and pled guilty, and for that I intend to give him substantial credit. That is the only thing I can grab hold of.

And so, those are the factors . . . that are before us. . . .

Transcript, December 3, 1975, p. 3, line 3-p. 4, line 11.

We then imposed the following sentence, "The Court, with regard to counts 1 and 2 which are merged, imposes fifteen years. On count 3, ten years. They are to run consecutively so that the Court fully intends by this sentence to impose twenty-five years as the period of confinement." Id., p. 13, lines 11-15.

After considerable reflection, it was our purpose to impose a sentence of 25 years. In accordance with proper practice at that time, we imposed a single general sentence on the merged counts and a consecutive term of 10 years under § 924(c). We could have, just as easily, sentenced petitioner to the maximum 25 years under § 2113(d), and without enlargement thereon, disposed of the other two counts. Certainly, the imperative element in the sentencing process is the substantive nature of the sentence meted out, not the form in which the sentence is imposed. Simpson and Grimes change the law in respect to the sections under which a bank robber may be prosecuted and, if convicted, sentenced. They do not in any way affect the 25 year sentence permissible under § 2113(d). We now turn to an examination of these cases.

Simpson and Grimes

In Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), petitioners were convicted by two separate juries for two separate bank robberies and were sentenced to the maximum penalties allowable under 18 U.S.C. §§ 2113(d) and 924(c) in each case with the sentences running consecutively to each other. Thus, petitioners each faced imprisonment of 70 years. Id. at 9, 98 S.Ct. 909. The United States Supreme Court overturned the convictions, and stated that the test to determine whether a single act or transaction may result in imposition of cumulative punishment based on violation of two entirely different statutory provisions is "`whether each provision requires proof of a fact which the other does not.'" Id. at 11, 98 S.Ct. at 912, quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 40, 76 L.Ed. 520 (1932).

Mr. Justice Brennan, writing for the Court,⁷ rested his decision on non-constitutional grounds. He conducted an in depth examination of the question whether Congress intended to authorize cumulative punishment for violations of 18 U.S.C. §§ 2113(d) and 924(c). The Justice concluded that the legislative history of § 924(c) makes it clear that if the penalty for the underlying offense is already enhanced because a dangerous weapon is involved (as § 2113(d) enhances the penalty of § 2113(a) by five years), the purposes of § 924(c) are thereby achieved. 435 U.S. at 13-14, 98 S.Ct. 909. After articulating the established principles that "`ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,'" id. at 14, 98 S.Ct. at 914, quoting United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), and that the terms of a specific statute control over the terms of a later enacted general one, 435 U.S. at 15, 98 S.Ct. 909, the Court held that cumulative punishment may not be imposed on a person guilty of violating both §§ 2113(d) and 924(c).

Grimes v. United States, 607 F.2d 6, No. 79-2007 (2d Cir. September 6, 1979) takes Simpson one step further. For each of two bank robberies, Grimes was found guilty of violating §§ 2113(a), 2113(d) and 924(c)(1). His appeal to the Second Circuit Court of Appeals from the District Court's denial of his petition under 28 U.S.C. § 2255⁸ raised two legal issues: (1) whether it is proper for a defendant to be convicted of violating both §§ 2113(a) and 2113(d) for a single bank robbery and (2) whether a person may be prosecuted under both §§ 2113(d) and 924(c). The Circuit Court ruled in the negative on both issues, solely on non-constitutional grounds.

With respect to the first issue, the court noted that...