United States v. Ellis Raymond Williamson
255 F.2d 512
5th Cir.
1958
Check Treatment

*1 delay, unnecessary directed it is avoid ten stay until remain effect that the days the date of this decision the mandate of this Court

which time

shall issue instanter. judgment is affirmed. America,

UNITED STATES Appellant, WILLIAMSON, Appellee. Raymond

Ellis

No. 16808. Appeals Court of

United States Circuit. Fifth

April

Rehearing June Denied

513 ing 2113, 18 the violation of U.S.C.A. § Robbery January 14,1954, Bank Act. On days upon after of three and with trial plea guilty, of drawal his of the not Court, upon the motion of United 1, 3, 4 ac dismissed1 and Counts 7 and cepted guilty 2, plea his 5 of on Counts 2 charged and In he these Counts was (a) entry with the in of the bank with felony (b) ac tent to commit a and the completed larceny property tual the pleas, bank. On these the sen Court twenty years tenced on Williamson to eight years 2 Count and on each eight-year Counts and The sen concurrently were tences were run but adjudged until com not to commence pletion twenty-year of the sentence on Count 2. The terms the consecutive aggregated twenty- sentences therefore eight years. May 1957, 7,

On U.S.C.A. § upon 2255 and in reliance 322, 403, United U.S. S.Ct. 370, motion filed a Williamson January to vacate the sentence hearing upon mo- this After a repre- Williamson tion in which distinguished able and sented court-appointed appears here counselwho Guilmartin, Atty., U. L. S. James well, concluded District Atty., Madsen, U. S. E. Coleman orally well and that the motion was taken Fla., Miami, appellant. for impact of United Prince v. Jacksonville, Fla., Muskoff, W. John vacating required supra, appellee. for only 2. This left the sentence on Count CAMERON, JONES and Before sentences under Counts the concurrent Judges. BROWN, Circuit larcencies. consummated of sentences instead result was that The Judge. BROWN, R. Circuit JOHN twenty-eight years, aggregating William- eight years 7,May stood sentenced was indicted now Williamson son January charg- Florida, Miami, only seven and after on counts greater charged entry than $100. Bank April of tlie First 18 U.S. of a value 1. Count Clewiston, Florida, Clewiston, 213.3(b). § C.A. commit a intent entry charged the bank 2. Count affecting felony § the bank. U.S.C.A. felony, e., to commit the intent i. 2113(a). larceny. 2113(a). U.S.C.A. The par- charged taking this is of five Count 3 years. ticularly States $3000 described charged taking taking bonds; of twelve de- Counts Count purloin Currency away intent to with the States steal $100 United scribed currency $204,775 taking $28,194 notes; of various Count bonds, respectively. as mort- States documents such United maximun sentence The undescribed gages, certificates, years. corporate wills, for this is ten stock 2313(b). 18 U.S.C.A. § original points sentence. He date of the out the effective also that in the discus- brings ap- legislative history sion of the now stat- ute, peal. the Court stated that mani- “It was *3 festly purpose Congress the of to estab- the Williamson and Both by lish lesser offenses” of the addition pre basically agree Prince that larceny provision the while, at the same un any “pyramiding” of sentences cludes time, making entry an offense that so Act, Robbery where least at the Bank der escape the frustrated thief would not banking facility intent entry with of a punishment. 327, page 352 U.S. at against or felony bank such commit a to any page 406, page S.Ct. at 373. L.Ed.2d at upon charges larceny the of is one This, urges, he is defeated if the'Govern- based are sentence and which conviction ment’s no contention is followed since in is intent consummated that and when larceny, lesser offense is for created if larceny. robbery With Count or which the ten maximum sentence is charg entry charging 5 and and Counts may years, expanded of be a crime into Prince larcency, to ing similar a situation entry carrying with intent unlawful agreement, presented. Both are was twenty-year equal it a the maximum to aggregating then, sentences the that robbery more serious of because crime years twenty-eight stand. cannot necessarily the thief had to enter the whether, larceny. bank therefore, to commit question, is the The imprison- Prince, the under arguments While these are advanced resen- be could ment which precise with consummate find skill and years unlaw- tencing the for was Judge support eight in the dissent3 of Chief 2113(a), or the entry, Section ful years BRATTON, States, 10 Purdom v. United larceny, Sec- consummated for the 822, Cir., 249 U.S. F.2d cert den. 355 2113(b). tion 913, 341, 273, 78 S.Ct. L.Ed. we believe vig- argues with counsel Williamson’s that the Government’s are contentions of the choice that resourcefulness orous right and should be followed. by compelled Prince is lesser the eight years not, of but, the sentence if that The United States contends twenty-year maximum the within proscribe the Prince does no more than im- discretion Court’s District and the upon pyramiding of sentences convic maxi- than posing less of a sentence robbery entry larceny and tions The basis open review. to mum is not merger effecting one of the rather than there that premised on claim is attack has of the This view with either others. between distinction basis for valid is no by Appeal, other Courts of been taken Prince, and en- entry robbery, as in and supra; Kitts Purdom v. United being so, larceny, That try here. as Cir., 243 F.2d 883. v. United applica- is Prince was said in then what We feel this view is hold correct to gravamen of “The the offense here: ble produce would an anomalous otherwise entering, [entry] not in act is interpretation of the statute which would statute the terms satisfies which entering allow one a bank with the intent walking through simply an if it is even felony (including larceny) commit a to during public door normal business open, against bank to be sentenced twen to Rather the of the crime heart hours. ty imprisonment years if his’ intent mental to steal. This element intent should be frustrated but to no more than completed merges if in the crime steal, here, years should if he ten robbery 322, is consummated.” U.S. year $28,194 and no more than one if he 403, 77 S.Ct. less than should take $100. page might appro- punishment “If 249 F.2d 827: than otherwise be less application by priate imposed, it is matter be corrected doctrine merger Congress.” leads the undesired result of is, Tay- proceeding the which by a Section Court since Cases decided Cir., re- lor v. United F.2d in which case of the decision read- the matter are should be remanded presented questions were lated application proper principles now distinguishable ily way militate District Court. Oaks Cf. Galena no consideration against Corp. Scofield, Cir., 218 F.2d taken. have we which view States, Cir., F.2d Williams v. 252 F. States, Cir., 251 Heflin v. United 2d merger vio- possible dealt receiving stolen 2113(c) lations cause be remanded must therefore course 2113(d) in the use money and § so that the Court can determine the sen- *4 weapon dangerous robbery of a a bank tence to be within the any person, life of jeopardize the to twenty years and for such further and two they constituted rightly that held may other consistent be re- action simi- Of offenses. separate distinct quired. United v. import Horne lar Reversed and remanded. Neither Cir., F.2d Cir., Canio, Rehearing F.2d On Petition for v. Di weap- dangerous 2113(a) and (robbery § merge) nor 2113(d) aggravation § on PER CURIAM. Cir., 242 Tarricone, 2 v. United States support pe In his of a brief 2113(a) rob (attempt § to F.2d rehearing, urges upon tition for counsel aggravation § weapon dangerous and 2113(d) energetic us with continued resourceful some merge) that indicates ness Williamson’s contention that this proper. be would other course jurisdiction appeal Court lacks of this Congress that either do think We not applicable statutory is because there no any or that result such intended provision allowing appeal by the Gov compels it. type, ernment in cases of criminal see Carroll v. United 354 U.S. subsidiary point, while theOn 1442; 1332, 1 77 S.Ct. that what engaging, do not argument we dispenses necessity we done have While can be sustained. it think that legislation, e.g., cf. 18 U.S.C.A. § is, course, within true that it appeal and that even if this were permits teaching max a Prince which jurisdiction within 18 U.S.C.A. § years imum sentence Supreme in the would be Court entry and con unlawful combination here. not Such conten larceny, may Court never summated ignores long-established tion fact judicial discretion, theless, fix in its proceeding that under 28 U.S.C.A. § plain here that the corpus it is is, lesser sentence like habeas which it was simplify make the choice of the largely supplant, did not enacted to (eight years) from this lesser matter rather than a civil criminal al contrary, though necessarily On discretion. residual deals with it criminal though it as this result was Hayman, treated Court compelled convictions. United States v. Since, by 232; Prince. for the rea 342 U.S. S.Ct. 96 L.Ed. stated, States, Cir., this view was erro we have v. United sons Mercado 183 F. ought automatically 486; Estep neous, States, Cir., not af we v. United 2d merely right because, judgment had 251 F.2d 579. The firm Govern acting appeal corpus in habeas accordance ment to Court been cases recognized interpretation case, properly of that has been the correct other might Jones, be action either have been Cir., See such Courts. Patterson unassailable, 319; yond all review at a 141 F.2d and cf. United States v. Cir., Singer, express within the because discretion of review F.2d 966. It is any matter, provided ly appeals As in Court. other civil manner. the same handled in shall be par- being proceeding, both a civil This appeal. opportunity equal ties have appearing in the

No matter other new

petition, Denied. it is Gen., Rice, Atty. Charles K. America, STATES UNITED Bledsoe, Jackson, Carter Lee A. Melva Appellant, Justice, Graney, Attys., Dept. *5 M. Washington, D, C., Plouse, Edith U. Asst. State OF DEPARTMENT

STATE ROAD Jacksonville, Fla., Atty., S. L. James Appellee. FLORIDA, Fla., Guilmartin, Atty., Miami, U. S. No. appellant. Appeals States Fla., Jr., Jacksonville, Boyd, T. Charles Circuit. Fifth Tallahassee, Fla., Austin, Richard B. May Atty., Stanton, Jr., Ross H. Resident Tallahassee, Fla., Depart- Road State Florida, appellee. ment the State Jennings Seattle, Wash., Felix, P. John Gen., Adams, O’Connell,Atty. J. Atty. Paul L. Gen., Gen., Torina, Samuel J. Sol. Lansing, Mich., Holbrook, T. Wil- Carl Attys. Dexter, Gen., liam D. amici curiae. TUTTLE,

Before BROWN and WIS- DOM, Judges. Circuit Judge. TUTTLE, Circuit appeal presents question This Transportation whether the Federal Tax applicable transportation furnished highway-using part vehicles as a highway system ferry op- state charge by erated the Florida State Department. Road question The statutes in are Sections 4271, 4272, the Internal Revenue Code of as follows: Imposition of tax. “§ “(a) Property than other coal.— hereby imposed upon There is paid amount within or without the transporta- for the except coal, property, by rail, tion of