U.S. v. Henry, No. 79-1740
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Writing for the Court | Before GODBOLD, REAVLEY and ANDERSON; PER CURIAM; Before COLEMAN, Chief Judge, BROWN, GOLDBERG, AINSWORTH, GODBOLD, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCH |
| Citation | 611 F.2d 983 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Richard Bullock HENRY, a/k/a Imari Abubakari Obedele, Defendant-Appellant. Summary Calendar. * |
| Docket Number | No. 79-1740 |
| Decision Date | 30 November 1979 |
Page 983
v.
Richard Bullock HENRY, a/k/a Imari Abubakari Obedele,
Defendant-Appellant.
Summary Calendar. *
Fifth Circuit.
On Rehearing and Rehearing En Banc Jan. 30, 1980.
Page 984
Fred L. Banks, Jr., Jackson, Miss., for defendant-appellant.
James B. Tucker, Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellee.
Appeal from the United States District Court of the Southern District of Mississippi.
Before GODBOLD, REAVLEY and ANDERSON, Circuit Judges.
PER CURIAM:
This appeal comes out of the same facts and legal contentions discussed in U. S. v. Shillingford, 586 F.2d 372 (5th Cir. 1978). Richard Henry and Denis Shillingford were co-defendants and received the same sentences: five years on count one (conspiracy to assault federal officers), seven years on count two concurrent with count one (assault upon federal officers in violation of 18 U.S.C. § 111), and five years on count three consecutive to counts one and two (use of firearms to commit felony in violation of 18 U.S.C. § 924.c.1). The seven year sentence on count two was necessarily made under the second paragraph of 18 U.S.C. § 111 which raises the maximum confinement from three to ten years in the event a dangerous or deadly weapon is used in the commission of the assault.
Henry filed a Rule 35 motion contending that the sentence on count three was invalid and must be vacated. The district judge acted after the circuit panel wrote Shillingford ; he then vacated the sentence on count two. This leaves Henry facing the two consecutive sentences on counts one and three a total of ten years. Henry contends that the count three sentence must be vacated, leaving him the two concurrent sentences on counts one and two a total of seven years.
Henry's argument is based upon Judge Rubin's construction of Simpson v. U. S., 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), stated in his Shillingford dissent:
This means to me that Simpson precludes enhancement under section 924(c) when the defendant has been convicted of any felony to which section 111 is applicable. 586 F.2d 376.
The Shillingford court remanded to the district court with directions that the sentences given on counts two and three were illegal as they stood and resentencing was ordered. The panel majority stated that the district court could choose to vacate Either the section 111 or section 924(c)(1)...
To continue reading
Request your trial
-
U.S. v. Henry, Nos. 81-4107
...of the earlier decision in Shillingford, which had authorized the "either" approach to the problem. United States v. Henry, 611 F.2d 983, 984 (5th Cir.1979). Henry then filed a timely petition for rehearing en After we had voted for the first time to hear Henry's case en banc but ......
-
Mickles v. Shalala, No. 93-1891
...of objective proof of an underlying impairment which could reasonably be expected to cause the disabling pain a claimant alleges, see 611 F.2d at 983, and has at least once been so read, see Thompson, 980 F.2d at 283 (characterizing Myers as holding "that pain itself is an impairment t......
-
Craig v. Chater, No. 94-2590
...of objective proof of an underlying impairment which could reasonably be expected to cause the disabling pain a claimant alleges, see 611 F.2d at 983, and has at least once been so read, see Thompson, 980 F.2d at 283 (characterizing Myers as holding "that pain itself is an impairment t......
-
U.S. v. Henry, Nos. 81-4107
...supra, which had indicated that the lower court could choose to vacate either the § 111 or § 924(c)(1) conviction. United States v. Henry, 611 F.2d 983 (5th Cir. 1979). However, a rehearing en banc was granted, with the result that the sentence was vacated and remanded to the district court......
-
U.S. v. Henry, Nos. 81-4107
...of the earlier decision in Shillingford, which had authorized the "either" approach to the problem. United States v. Henry, 611 F.2d 983, 984 (5th Cir.1979). Henry then filed a timely petition for rehearing en After we had voted for the first time to hear Henry's case en banc but ......
-
Mickles v. Shalala, No. 93-1891
...of objective proof of an underlying impairment which could reasonably be expected to cause the disabling pain a claimant alleges, see 611 F.2d at 983, and has at least once been so read, see Thompson, 980 F.2d at 283 (characterizing Myers as holding "that pain itself is an impairment t......
-
Craig v. Chater, No. 94-2590
...of objective proof of an underlying impairment which could reasonably be expected to cause the disabling pain a claimant alleges, see 611 F.2d at 983, and has at least once been so read, see Thompson, 980 F.2d at 283 (characterizing Myers as holding "that pain itself is an impairment t......
-
U.S. v. Henry, Nos. 81-4107
...supra, which had indicated that the lower court could choose to vacate either the § 111 or § 924(c)(1) conviction. United States v. Henry, 611 F.2d 983 (5th Cir. 1979). However, a rehearing en banc was granted, with the result that the sentence was vacated and remanded to the district court......