Wright v. U.S.

• Decision Date: 02 July 1975
• Docket Number: No. 75-1053,75-1053
• Citation: 519 F.2d 13
• Parties: William WRIGHT, Petitioner-Appellant, v. The UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 13

519 F.2d 13

William WRIGHT, Petitioner-Appellant, v. The UNITED STATES of America, Respondent-Appellee.

No. 75-1053.

United States Court of Appeals Seventh Circuit.

Argued April 24, 1975.

Decided July 2, 1975.

Grady E. Holley, Springfield, Ill., for petitioner-appellant.

Donald B. Mackay, U. S. Atty., Victor M. Pilolla, Asst. U. S. Atty., Springfield, Ill., for respondent-appellee.

Before PELL and STEVENS, Circuit Judges, and PERRY, Senior District Judge. ^*

PERRY, Senior District Judge.

This is an appeal from orders of the District Court denying certain relief requested in a motion filed pro se under 28 U.S.C. § 2255 by William Wright, petitioner below.

Wright was indicted on three substantive counts of bank robbery, under 18 U.S.C. § 2113 and § 2, and one conspiracy count, under 18 U.S.C. § 371, all charges stemming from an armed robbery of the Land of Lincoln Bank of Springfield, Illinois, on July 14, 1967. Count I of the indictment charged that on July 14, 1967, Wright robbed the Land of Lincoln Bank in Springfield, Illinois, by force, violence, and intimidation, in violation of 18 U.S.C. §§ 2 and 2113(a); Count II charged that on the same date Wright stole deposits of the same bank in violation of 18 U.S.C. §§ 2 and 2113(b); Count III charged that Wright, during the course of the robbery, put lives in jeopardy by the use of a dangerous weapon, i.e., a revolver, in violation of 18 U.S.C. §§ 2 and 2113(d); Count IV charged that Wright conspired to commit the offenses charged in Counts I, II, and III, in violation of 18 U.S.C. § 371. Wright pleaded guilty to all counts and on February 19, 1968 he was convicted and sentenced to 10 years under Count I, 10 years under Count II, 15 years under Count III, and 5 years under Count IV, all sentences to run concurrently.

On December 26, 1973, alleging that he had fully served the sentence imposed under Count I, and seeking to have the greater sentence imposed under Count III vacated as being illegal, thus resulting in his release from confinement, Wright filed pro se a motion entitled "Motion To Annul The Convictions and Sentences Imposed Under Counts Two (2) and Three (3) Of The Indictment, Pursuant To Title 28, U.S.C.A. Section 2255". In the motion Wright attacked both the validity of the sentences and the validity of the underlying convictions. In his prayer for relief, Wright petitioned the court to vacate the sentences and the convictions under Counts II and III, and to release him from imprisonment by virtue of his having served in full the sentences imposed under Counts I and IV.

On October 25, 1974, the District Court entered an order vacating the sentences imposed under Counts I, II and IV, but leaving undisturbed the 15-year sentence imposed under Count III. Subsequently Wright filed, both pro se and through his appointed counsel, motions for rehearing and reconsideration. In the motion filed by his counsel, Wright alleged that (1) his pro se § 2255 motion raised the issue of the illegality of the convictions, as opposed to the illegality of the sentences, as argued in the briefs filed by Wright's appointed counsel and by the Government; (2) the issue of the illegality of the convictions was not argued by his appointed counsel, although it was raised in his § 2255 motion; (3) the court's order of October 25, 1974, while deciding the issue of the illegality of the sentences, did not decide the issue of the illegality of the underlying convictions; and (4) the final determination of the issues raised in the motion requires a decision on the issue of the illegality of the underlying convictions.

In an order entered November 21, 1974, the District Court denied Wright's motion for rehearing and reconsideration, and re-affirmed its order of October 25, 1974. On December 9, 1974 Wright appealed from both orders.

The issues on this appeal are:

(1) whether the refusal of the District Court to order Wright released from imprisonment constituted a violation of the double jeopardy clause of the Fifth Amendment;

(2) whether the District Court erred by applying, in the procedure employed for correcting illegal sentences, the "intention of the sentencing judge" theory; and

(3) whether the District Court erred by not vacating the convictions underlying the sentences illegally imposed by the trial judge.

I.

Wright contends, first, that his sentencing by the trial judge was clearly illegal because the judge imposed multiple convictions and multiple sentences although only one bank robbery was involved. Since it is well settled that the Bank Robbery Act (18 U.S.C. § 2113) did not create separate crimes but merely prescribed alternative sentences for the same crime depending upon the manner in which the crime was perpetrated, ¹ we agree that Wright perpetrated a single crime for which a single sentence should have been imposed, and that the trial judge erred in imposing multiple sentences, even though he ordered that they were to run concurrently. ² Wright urges, however, that the failure of the District Court to discharge him violated the double jeopardy clause of the Fifth Amendment and that we should now order him released from imprisonment on the grounds that he has fully served one sentence under a valid conviction (Brief of Appellant at 21). For several reasons, we cannot agree. First, the District Court in its order of October 25, 1974 expunged all but one of the sentences originally imposed. Therefore the error committed by the original illegal sentencing was subsequently corrected by the District Court. See United States v. Leather, 271 F.2d 80 (7th Cir. 1959), cert. denied, 363 U.S. 831, 80 S.Ct. 1602, 4 L.Ed.2d 1525 (1960), and Brown v. Taylor, 283 F.2d 670 (10th Cir. 1960). It is clear that erroneous concurrent sentences are correctable, but do not constitute reversible error affecting the conviction. Hirabayshi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943).

In United States v. Leather, supra, the defendant was indicted and pleaded guilty to violations of sub-sections (a) and (d) of 18 U.S.C. § 2113. He was sentenced to 15 years for violation of § 2113(a) and 5 years for violation of § 2113(d). After he had been confined for six years, he moved to vacate his 15-year sentence. The District Court denied the motion but vacated the 5-year sentence sua sponte. We affirmed. In Brown v. Taylor, supra, the defendant was convicted under sub-sections (a) and (b) of 18 U.S.C. § 2113, and received sentences of 15 years and 5 years, respectively. The defendant contended that he was entitled to release because he had been confined for over five years. The court rejected this contention, holding that the defendant was lawfully in custody for the reason that he had not served the 15-year sentence.

Second, a similar contention was rejected in Holiday v. Johnston, 313 U.S. 342, 349, 61 S.Ct. 1015, 1017, 85 L.Ed. 1392 (1941), where the Supreme Court held:

. . . The erroneous imposition of two sentences for a single offense of which the accused has been convicted, or as to which he has pleaded guilty, does not constitute double jeopardy.

Holiday dealt with bank robbery under 12 U.S.C. § 588b (now 18 U.S.C. § 2113). Holiday, a habeas corpus petitioner, had been charged with two counts of bank robbery, one count specifying a more aggravated means of perpetration. Holiday pleaded guilty to both counts of the indictment and was sentenced to 10 years on Count One and 15 years on Count Two, the sentences to run consecutively. The petition alleged that the two counts of the indictment charged but one offense and that Holiday was placed in double jeopardy by the imposition of the consecutive sentences. The Supreme Court held that for sentencing purposes, there was but one offense charged. The underlying assumption of Holiday is that it was proper for the defendant to plead guilty to the indictment or to both counts thereof, but that as only one offense (bank robbery) was charged (but was charged in two different ways), only one sentence was permissible. Although we cannot read the above-quoted statement as approving multiple punishment for one bank robbery under the double jeopardy clause, we do read it to mean that a sentence erroneously imposed under the Bank Robbery Act cannot rise to a constitutional complaint. ³

Third, Wright's strong reliance upon Ex parte Lange, 85 U.S. 163, 21 L.Ed. 872 (1873), and In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 608 (1943), is misplaced. In Lange and Bradley the defendants received concurrent sentences of fine and imprisonment although the statute allowed a punishment of fine or imprisonment. The defendant in each case satisfied the judgment as to payment of the fine before any attempt was made to amend the sentence order. It was accordingly held in both of these cases that, since there had thus been a legal satisfaction of one valid alternative provision of the original sentence, any attempt to compel the defendant to serve the imprisonment portion of the sentence would constitute double punishment. But in the case before us, Wright has not fully satisfied one of two alternative penalties of the law. See Leather, supra, at 86.

Fourth, Wright misplaces his reliance on certain language of the Court of Appeals for the Eighth Circuit in Holbrook v. United States, 136 F.2d 649 (8th Cir. 1943) to support his proposition that a court becomes limited in choosing among sentences which may be vacated once there has been a legal satisfaction of one of the sentences. In Holbrook, the trial judge had sentenced the defendant to consecutive sentences, not, as in the case at bar, to concurrent sentences. Later, however, in Hardy v. United States, 292 F.2d 192 (8th Cir. 1961), the same court made its position clear in regard to cases, such as the case before us, where concurrent sentences are imposed. In Hardy, the defendant was convicted under 18 U.S.C. § 2113, sub-sections (a) and (b). He received sentences...