James Virgil Counts v. United States

263 F.2d 603

James Virgil COUNTS, Appellant,
v.
UNITED STATES of America, Appellee.

No. 17490.

United States Court of Appeals Fifth Circuit.

Feb. 19, 1959, Rehearing Denied March 26, 1959.

James Virgil Counts, in pro. per.

William M. Steger, U.S. Atty., Tyler, Tex., for appellee.

Before HUTCHESON, Chief Judge, and BROWN and WISDOM, Circuit Judges.

PER CURIAM.

1

This is a Section 2255 proceeding, 28 U.S.C.A. Appellant, on a plea of guilty, was convicted in two separate cases involving robbery of two banks on two distinct occasions. In each case he was charged under separate counts with entry with intent to commit larceny, 18 U.S.C.A. 2113(a), and with felony bank larceny, 18 U.S.C.A. 2113(b). Originally the sentence in each case was 15 years on both counts to be served concurrently. This error was corrected and the sentence under the larceny count, 18 U.S.C.A. 2113(b), was reduced to 10 years. The remaining 15-year sentence for the unlawful entry was within the 20-year maximum under Section 2113(a).

2

As have so many others, appellant now urges, on the basis of Prince v. United States, 1957, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370, that, since a larceny actually took place, the entry with felonious intent, Section 2113(a), merged into the larceny, Section 2113(b), so that the maximum sentence was 10 years. For the reasons pointed out in United States v. Williamson, 5 Cir., 1958, 255 F.2d 512, we disagree. To this may be added Purdom v. United States, 10 Cir., 1957, 249 F.2d 822, certiorari denied 355 U.S. 913, 78 S. Ct. 341, 2 L. Ed. 2d 273; LaDuke v. United States, 8 Cir., 1958, 253 F.2d 387; Kitts v. United States, 8 Cir., 1957, 243 F.2d 883.

3

Affirmed.