decided as amended september 8 1971.: August 31, 1971.
Seitz, Chief Judge, and McLaughlin, Hastie, Van Dusen, Aldisert, Adams, Gibbons and Rosenn, Circuit Judges. Hastie, Circuit Judge (dissenting).
The validity of sentencing is the issue on this appeal.
Appellant was convicted by a jury on three counts of an indictment, all based upon a single armed robbery of a bank. Following denial of appellant's post-trial motions, he was sentenced on May 9, 1967 as follows:
Count I, under 18 U.S.C. § 2113(a), charging entering a bank with intent to commit a felony--10 years;
Count II, also under 18 U.S.C. § 2113 (a), charging robbery of the bank--5 years, consecutive with the preceding sentence;
Count III, under 18 U.S.C. § 2113(d), charging bank robbery attended by jeopardizing life with a dangerous weapon--5 years probation, to be served at the expiration of the sentence of Count II.
An appeal was taken, and this court affirmed the conviction in a per curiam opinion. United States v. Corson, 389 F.2d 563 (1968).
On August 31, 1969, while imprisoned, appellant sought to invoke the power of the district court under Rule 35, Federal Rules of Criminal Procedure, "to correct an illegal sentence at any time" by moving for vacation of the sentences imposed under Counts I and II. The court responded, however, by vacating the sentences under Counts II and III on October 21, 1969 and letting stand the heavier sentence under Count I.
The sole question presented by this appeal is whether the district court's Order of October 21, 1969 constituted a proper and lawful implementation of the Supreme Court's holding in Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370 (1957). In Prince, the Court held that it was not Congress' intention, in establishing a series of greater and lesser offenses under the bank robbery statute, to pyramid the penalties therefor.*fn1 Accordingly, the Court held that it was error for the trial court to have sentenced Prince to consecutive terms of twenty years for robbery and fifteen years for unlawful entering, since the "mental element (intent to steal) merges into the completed crime if the robbery is consummated." 352 U.S. at 328, 77 S. Ct. at 407. The case was therefore remanded to the district court for resentencing "in accordance with this opinion." 352 U.S. at 329, 77 S. Ct. 403, 1 L. Ed. 2d 370.
Even before Prince, it was generally agreed among the circuits that a defendant could not be given multiple sentences under the bank robbery statute as punishment for a single bank robbery.*fn2 The circuits have disagreed both before and after Prince, however, as to the theory upon which the correction of an erroneously cumulative sentence should rest. ...