Jasper Smallwood, Jr. v. United States

Tenth Circuit

Jasper Smallwood, Jr. v. United States

308 F.2d 802

CourtCourt of Appeals for the Tenth Circuit

DecidedOctober 12, 1962

Docket7013_1

StatusPublished

Cited by1 cases

This text of 308 F.2d 802 (Jasper Smallwood, Jr. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jasper Smallwood, Jr. v. United States, 308 F.2d 802 (10th Cir. 1962).

Pincite

Opinion

PER CURIAM.

This is an appeal from an order of the District Court, District of Kansas, denying appellant’s motion to vacate and set aside sentence under 28 U.S.C. § 2255.

Appellant was convicted by a jury on two counts of an information charging the assault of a postal clerk with intent to rob, and robbery by putting such clerk’s life in danger — all in violation of 18 U.S.C. § 2114. Concurrent sentences of ten (10) and twenty-five (25) years were imposed. Shortly thereafter, on motion by appellant, the trial court ruled the offenses merged and corrected the sentence by imposing a single sentence of twenty-five (25) years.

Appellant’s present motion asserts the insufficiency of the evidence to sustain his conviction and the invalidity of the sentence. Both points are governed by Martin v. United States (10 C.A.), 241 F.2d 698, where the same issues were presented under essentially the same operative facts. There we held that “(S)ince the illegal sentence * * * under count one was made to run concurrently with the lawful sentence of twenty-five years under count two, he [appellant] has suffered no injury because he is in lawful custody under the twenty-five year sentence.” Indeed, appellant would be entitled to no relief even if the trial court had initially failed to change the sentence to prescribe a single twenty-five year period.

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 of the District Court, District of Kansas, denying appellant’s motion to vacate and set aside sentence under 28 U.S.C. § 2255.

Appellant was convicted by a jury on two counts of an information charging the assault of a postal clerk with intent to rob, and robbery by putting such clerk’s life in danger — all in violation of 18 U.S.C. § 2114. Concurrent sentences of ten (10) and twenty-five (25) years were imposed. Shortly thereafter, on motion by appellant, the trial court ruled the offenses merged and corrected the sentence by imposing a single sentence of twenty-five (25) years.

Appellant’s present motion asserts the insufficiency of the evidence to sustain his conviction and the invalidity of the sentence. Both points are governed by Martin v. United States (10 C.A.), 241 F.2d 698, where the same issues were presented under essentially the same operative facts. There we held that “(S)ince the illegal sentence * * * under count one was made to run concurrently with the lawful sentence of twenty-five years under count two, he [appellant] has suffered no injury because he is in lawful custody under the twenty-five year sentence.” Indeed, appellant would be entitled to no relief even if the trial court had initially failed to change the sentence to prescribe a single twenty-five year period.

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

308 F.2d 802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jasper-smallwood-jr-v-united-states-ca10-1962.

Opinion

Related

Cite This Page — Counsel Stack