U.S. v. Woodard, 89-8339

Decision Date14 August 1991
Docket NumberNo. 89-8339,89-8339
Citation938 F.2d 1255
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Kimmy Lee WOODARD, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

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 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 government's arguments for two reasons. First, rather than making general sentences more acceptable, the Sentencing Guidelines arguably prohibit them. Section 5G1.2 of the Guidelines prescribes the procedures for sentencing on multiple counts. The Guidelines require that, except where statutory maximums or minimums prohibit it, "the sentence imposed on each other count shall be the total punishment [recommended by the Guidelines]." Guidelines Sec. 5G1.2(b) (emphasis added). The section further provides that "[i]f the sentence imposed on the count carrying the highest statutory maximum is adequate to achieve the total punishment, then the sentences on all counts shall run concurrently...." Guidelines Sec. 5G1.2(c) (emphasis added). The commentary to the section describes exactly what to do in our situation, where "one of the counts [has] a statutory maximum adequate to permit imposition of the total punishment as the sentence on that count." In that case, "[t]he sentence on each of the other counts will then be set at the lesser of the total punishment and the applicable statutory maximum, and be made to run concurrently with all or part of the longest sentence." The commentary also concisely states that "[t]o the extent possible, the total punishment is to be imposed on each count."

These provisions of the Guidelines and commentary indicate not that general sentences are permissible under the Guidelines, but that they are prohibited. Section 5G1.2(b)'s instruction that "the sentence imposed on each other count shall be the total punishment," along with the commentary's guidance, requires distinct sentences on each count of conviction, not undivided general sentences covering two or more counts. See United States v. Freisinger, 937 F.2d 383, 392 (8th Cir.1991) ("A...

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