United States v. Poole , 96 F. App'x 897 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4344
MICHAEL LAMONT POOLE,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-01-193)
Submitted: March 12, 2004
Decided: May 18, 2004
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Affirmed in part and vacated in part by unpublished per curiam opin-
ion.
COUNSEL
Robert K. Trobich, Charlotte, North Carolina, for Appellant. Robert
J. Conrad, Jr., United States Attorney, Kenneth M. Smith, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. POOLE
OPINION
PER CURIAM:
After committing six independent robberies, Michael Lamont
Poole pled guilty to one count of bank robbery, 18 U.S.C. § 2113(a)
(2000), one count of armed bank robbery, 18 U.S.C. § 2113(d)
(2000), and one count of using a firearm during and in relation to a
crime of violence, 18 U.S.C. § 924(c) (2000), with respect to each of
the six robberies. The district court imposed 188-month sentences on
the twelve robbery counts, each count to run concurrently with each
other; a seven-year sentence on the first § 924(c) count, to run consec-
utively with the robbery counts; twenty-five-year sentences on the
remaining five § 924(c) counts, to run consecutively with each other
and run consecutively with all other counts. Poole’s sole argument on
appeal is that bank robbery, 18 U.S.C. § 2113(a), is a lesser-included
offense of armed bank robbery, 18 U.S.C. § 2113(d), and therefore his
six convictions and subsequent concurrent sentences for bank robbery
are multiplicitous and should be vacated.
The Government first asserts Poole’s claim is waived but concedes
that, if his claim is not waived, Poole’s convictions and sentences for
bank robbery are multiplicitous. The Government relies on Fed. R.
Civ. P. 12(b)(2), which provides that defenses and objections based
on defects in the indictment must be raised prior to trial. The Govern-
ment therefore argues that Poole’s failure to object to the indictment
precludes him from objecting to the multiple convictions. See also
United States v. Broce, 488 U.S. 563, 570 (1989) (noting that a guilty
plea is an admission that defendant committed the crime charged
against him; he is admitting guilt of a substantive crime).
A defendant who enters a guilty plea waives the right to raise a
constitutional challenge to his conviction except in narrow circum-
stances. United States v. Wiggins, 905 F.2d 51, 52 (4th Cir. 1990); see
Tollett v. Henderson, 411 U.S. 258, 267 (1973). Normally the inquiry
is limited to whether the plea was counseled and voluntary. Wiggins,
905 F.2d at 52. An exception to this rule exists for double jeopardy
claims, Menna v. New York, 423 U.S. 61, 63 (1975), at least where
the double jeopardy problem is apparent from the face of the indict-
ments without the necessity of further expanding the record. Broce,
488 U.S. at 575. An indictment charging a single offense in several
UNITED STATES v. POOLE 3
counts is multiplicitous, subjecting a defendant to a risk of multiple
sentences for a single offense in violation of the Double Jeopardy
Clause. United States v. Colton, 231 F.3d 890, 908 (4th Cir. 2000);
United States v. Mancuso, 42 F.3d 836, 847 n.11 (4th Cir. 1984).
Because on its face the superseding indictment exposed Poole to mul-
tiple sentences for a single offense, we conclude that Poole has not
waived his claim of multiplicity on appeal.
It is well established that § 2113(a) is a lesser-included offense of
§ 2113(d). United States v. Whitley, 759 F.2d 327, 331 (4th Cir. 1985)
(en banc) (citing Prince v. United States, 352 U.S. 322 (1957)). In
fact, this court has long recognized that § 2113 defines a primary
offense of bank robbery in § 2113(a), and both mitigated and aggra-
vated forms of that crime in subsections (b) and (d). United States v.
Shelton, 465 F.2d 361, 363 (4th Cir. 1972); see also United States v.
Gladdis, 424 U.S. 544, 547 (1976) (recognizing "merger" of convic-
tions under § 2113(a) and § 2113(d) for same robbery). After Poole
was convicted pursuant to his guilty plea under both subsections (a)
and (d) of 18 U.S.C. § 2113, for each of the six underlying offenses,
the district court imposed sentences under all twelve counts, to run
concurrently. Because Poole was charged with and convicted of both
bank robbery and armed bank robbery for each underlying incident,
the bank robbery convictions must be merged into the armed bank
robbery convictions, respectively, for sentencing purposes. The dis-
trict court therefore erred in imposing on Poole six separate 188-
month sentences for bank robbery. See United States v. Jones, 204
F.3d 541, 544 (4th Cir. 2000) (concluding that defendant’s cocaine
possession conviction should have been merged into the possession
with intent to distribute conviction and vacating separate twelve-
month sentence for the lesser-included offense of possession of
cocaine base).
Because we conclude that Poole’s bank robbery convictions should
have been merged into the armed bank robbery convictions, we
vacate the six separate 188-month sentences for bank robbery. We
affirm Poole’s remaining convictions. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED IN PART AND VACATED IN PART