Delage Larry Smith v. United States

Fifth Circuit

Delage Larry Smith v. United States

273 F.2d 337, 1960 U.S. App. LEXIS 5683

CourtCourt of Appeals for the Fifth Circuit

DecidedJanuary 7, 1960

Docket17921_1

StatusPublished

Cited by3 cases

This text of 273 F.2d 337 (Delage Larry Smith v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Delage Larry Smith v. United States, 273 F.2d 337, 1960 U.S. App. LEXIS 5683 (5th Cir. 1960).

Pincite

Opinion

PER CURIAM.

This is an appeal from an order denying a § 2255 (28 U.S.C.A.) motion to vacate a 15-year sentence based on a plea of guilty of illegally entering a bank with intent to commit a felony, 18 U.S. C.A. § 2113(a). Petitioner now contends that he was guilty only of larceny, 18 U. S.C.A. § 2113(b) which carries a maximum sentence of 10 years but that he was not guilty of unlawful entry, § 2113 (a), which has a maximum sentence of 20 years. Reliance on Prince v. United States, 1957, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370, is misplaced as the Prince case merely proscribes the pyramiding of sentences for unlawful entry with intent to commit a felony or larceny, § 2113(a), and the consummated larceny or robbery, § 2113(b). But this does not effect a merger of the two distinct offenses. United States v. Williamson, 5 Cir., 1958, 255 F.2d 512; Id., 5 Cir., 1959, 265 F.2d 236. Petitioner here was charged with and convicted of unlawful entry alone and the District Court was correct in concluding that the motion and the files and records of the case conclusively show that petitioner was entitled to no relief.

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

This is an appeal from an order denying a § 2255 (28 U.S.C.A.) motion to vacate a 15-year sentence based on a plea of guilty of illegally entering a bank with intent to commit a felony, 18 U.S. C.A. § 2113(a). Petitioner now contends that he was guilty only of larceny, 18 U. S.C.A. § 2113(b) which carries a maximum sentence of 10 years but that he was not guilty of unlawful entry, § 2113 (a), which has a maximum sentence of 20 years. Reliance on Prince v. United States, 1957, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370, is misplaced as the Prince case merely proscribes the pyramiding of sentences for unlawful entry with intent to commit a felony or larceny, § 2113(a), and the consummated larceny or robbery, § 2113(b). But this does not effect a merger of the two distinct offenses. United States v. Williamson, 5 Cir., 1958, 255 F.2d 512; Id., 5 Cir., 1959, 265 F.2d 236. Petitioner here was charged with and convicted of unlawful entry alone and the District Court was correct in concluding that the motion and the files and records of the case conclusively show that petitioner was entitled to no relief.

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

273 F.2d 337, 1960 U.S. App. LEXIS 5683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delage-larry-smith-v-united-states-ca5-1960.

Opinion

Related

Cite This Page — Counsel Stack