United States v. Richard Bullock Henry, A/K/A Imari Abubakari Obedele

Fifth Circuit

United States v. Richard Bullock Henry, A/K/A Imari Abubakari Obedele

611 F.2d 983, 1980 U.S. App. LEXIS 20981

CourtCourt of Appeals for the Fifth Circuit

DecidedJanuary 30, 1980

Docket79-1740

StatusPublished

Cited by6 cases

This text of 611 F.2d 983 (United States v. Richard Bullock Henry, A/K/A Imari Abubakari Obedele) 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

United States v. Richard Bullock Henry, A/K/A Imari Abubakari Obedele, 611 F.2d 983, 1980 U.S. App. LEXIS 20981 (5th Cir. 1980).

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Opinions

PER CURIAM:

This appeal comes out of the same facts and legal contentions discussed in U. S. v. Shillingford, 586 F.2d 372 (5th Cir. 1978). Richard Henry and Denis Shillingford were co-defendants and received the same sentences: five years on count one (conspiracy to assault federal officers), seven years on count two concurrent with count one (assault upon federal officers in violation of 18 U.S.C. § 111), and five years on count three consecutive to counts one and two (use of firearms to commit felony in violation of 18 U.S.C. § 924.C.1). The seven year sentence on count two was necessarily made under the second paragraph of 18 U.S.C. § 111 which raises the maximum confinement from three to ten years in the event a dangerous or deadly weapon is used in the commission of the assault.

Henry filed a Rule 35 motion contending that the sentence on count three was invalid and must be vacated. The district judge acted after the circuit panel wrote Shilling-ford ; he then vacated the sentence on count two. This leaves Henry facing the two consecutive sentences on counts one and three — a total of ten years. Henry contends that the count three sentence must be vacated, leaving him the two concurrent sentences on counts one and two — a total of seven years.

Henry’s argument is based upon Judge Rubin’s construction of Simpson v. U. S., 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), stated in his Shillingford dissent:

This means to me that Simpson precludes enhancement under section 924(c) when the defendant has been convicted of any felony to which section 111 is applicable. 586 F.2d 376.

The Shillingford court remanded to the district court with directions that the sentences given on counts two and three were illegal as they stood and resentencing was ordered. The panel majority stated that the district court could choose to vacate either the section 111 or section 924(c)(1) sentence, and could even sentence under section 924(c)(1) and the first paragraph of section 111. We are controlled by the directions of that panel.

AFFIRMED.

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PER CURIAM:

This appeal comes out of the same facts and legal contentions discussed in U. S. v. Shillingford, 586 F.2d 372 (5th Cir. 1978). Richard Henry and Denis Shillingford were co-defendants and received the same sentences: five years on count one (conspiracy to assault federal officers), seven years on count two concurrent with count one (assault upon federal officers in violation of 18 U.S.C. § 111), and five years on count three consecutive to counts one and two (use of firearms to commit felony in violation of 18 U.S.C. § 924.C.1). The seven year sentence on count two was necessarily made under the second paragraph of 18 U.S.C. § 111 which raises the maximum confinement from three to ten years in the event a dangerous or deadly weapon is used in the commission of the assault.

Henry filed a Rule 35 motion contending that the sentence on count three was invalid and must be vacated. The district judge acted after the circuit panel wrote Shilling-ford ; he then vacated the sentence on count two. This leaves Henry facing the two consecutive sentences on counts one and three — a total of ten years. Henry contends that the count three sentence must be vacated, leaving him the two concurrent sentences on counts one and two — a total of seven years.

Henry’s argument is based upon Judge Rubin’s construction of Simpson v. U. S., 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), stated in his Shillingford dissent:

This means to me that Simpson precludes enhancement under section 924(c) when the defendant has been convicted of any felony to which section 111 is applicable. 586 F.2d 376.

The Shillingford court remanded to the district court with directions that the sentences given on counts two and three were illegal as they stood and resentencing was ordered. The panel majority stated that the district court could choose to vacate either the section 111 or section 924(c)(1) sentence, and could even sentence under section 924(c)(1) and the first paragraph of section 111. We are controlled by the directions of that panel.

AFFIRMED.

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611 F.2d 983, 1980 U.S. App. LEXIS 20981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-richard-bullock-henry-aka-imari-abubakari-obedele-ca5-1980.

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