AVERY BRICE, PETITIONER V. UNITED STATES OF AMERICA No. 90-6124 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinions of the court of appeals on direct appeal from petitioner's sentence (United States v. Brice, No. 87-5585 (4th Cir. Dec. 28, 1987), on appeal from the district court's denial of petitioner's motion under Fed. R. Crim. P. 35(b) (App., infra, A1-A6) and on appeal from the district court's subsequent denial of his motion to reduce sentence (Pet. App. A1-A5) are unreported. JURISDICTION The judgment of the court of appeals was entered on August 1, 1990. The petition for a writ of certiorari was filed on October 30, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the court of appeals erred in vacating petitioner's convictions for certain offenses under the Federal Bank Robbery Act without remanding for resentencing. STATEMENT Following a trial in the United States District Court for the Western District of North Carolina, petitioner was convicted on two counts of bank robbery, in violation of 18 U.S.C. 2113(a), and two counts of bank larceny, in violation of 18 U.S.C. 2113(b). Petitioner's convictions for bank robbery and bank larceny on Counts 1 and 2, respectively, were based on his January 8, 1987 robbery of the First Citizens Bank and Trust Company in Charlotte, North Carolina; his convictions for bank robbery (Count 3) and bank larceny (Count 4) were based on his January 15, 1987 bank robbery of the NCNB National Bank of North Carolina in Charlotte, North Carolina. The district court sentenced petitioner to a 12-year term of imprisonment on Counts 1 and 2 and an 8-year consecutive term of imprisonment on Counts 3 and 4. It also ordered a separate special assessment on each count totalling $200. Petitioner's convictions were affirmed on direct appeal. United States v. Brice, No. 87-5585 (4th Cir. December 28, 1987). Pet. App. A3. The district court denied petitioner's subsequent motion to correct his sentence under Fed. R. Crim. P. 35(a). On appeal from that ruling, the court of appeals held that the simultaneous convictions for bank robbery and bank larceny were error because bank larceny is a lesser-included offense of bank robbery. App., infra, A3-A4. With regard to petitioner's sentence, the court observed that "(t)he imposition of the special assessment on (petitioner's) two Section 2113(b) convictions was improper" because petitioner could not receive a separate punishment for each count of larceny and robbery. Id. at A4. The court remanded with instructions to vacate the assessments on Counts 2 and 4. Id. at A6. However, the court found "no merit to petitioner's claim that his terms of incarceration were illegal," App., infra, A6. As the court explained, the district court "correctly specified that the convictions for the lesser offenses described in counts 2 and 4 'merged' with their respective greater offenses." Therefore, for purposes of the sentence of incarceration, counts 2 and 4 "ceased to be of legal consequence." Id. at A5. Although the court of appeals found it to be "apparent that the district court * * * intended that the sentences imposed on (petitioner) be for the two greater offenses described in counts 1 and 3 for violations of Section 2113(a)," ibid., it remanded to the district court with instructions to "modify the judgment of conviction to indicate that the 12-year sentence was for count 1 and the 8-year sentence for count three." Id. at A6. On remand, the district court amended its judgment to make clear that petitioner was sentenced to a 12-year term on Count 1 and an 8-year term on Count 3, to be served consecutively to the sentence on Count 1. The court did not impose assessments on the merged larceny counts, effectively abating the two $50 assessments on the larceny convictions. Pet. App. A4. The court of appeals affirmed in part and reversed in part. Pet. App. A1-A5. Pursuant to the government's concession, the court vacated petitioner's larceny convictions. Noting that "(t)he 12-year sentence for the first robbery and the 8-year sentence for the second robbery were proper when they were imposed," Pet. App. A4, the court rejected petitioner's arguments that he was entitled to a reduction in sentence and to resentencing at a hearing at which he would be present. Id. at A4-A5. /1/ ARGUMENT Petitioner contends (Pet. 3-7) that the court of appeals erred in vacating his two bank larceny convictions without requiring resentencing. The court of appeals correctly decided this case, and its decision does not conflict with any decision of this Court or of the courts of appeals. Further review is unwarranted. Petitioner originally received one 12-year sentence of imprisonment for the convictions on the first two counts (robbery and larceny) and one 8-year sentence for the remaining two counts (same). On appeal from the district court's denial of petitioner's subsequent motion, the court of appeals recognized that petitioner could not simultaneously be convicted and sentenced for counts of bank robbery and bank larceny relating to the same robbery. The court also recognized, however, that, although the special assessments and convictions on each count were improper, petitioner had not received separate terms of imprisonment for the larceny counts, and his sentences of imprisonment were therefore legal. Although the court did not, at that point, explicitly direct the district court to vacate the redundant convictions, it instructed the district court to clarify that each sentence was based only on the conviction for bank robbery. The district court complied with these instructions. Following another appeal and remand, the district court finally vacated the larceny convictions, but left the sentences of imprisonment undisturbed. In light of this sequence of events, petitioner's contention that he is entitled to resentencing is without merit. Petitioner received one sentence, not separate sentences, for the larceny and robbery counts arising out of each bank robbery. These counts were merged by the district court for purposes of sentencing. See App, infra, A2. Those sentences were legal when imposed. When one crime is a lesser included offense of another, they may not both form the basis of separate convictions or separate and cumulative sentences, even if those sentences are concurrent. See Prince v. United States, 352 U.S. 322 (1957) (sentences); Ball v. United States, 470 U.S. 856 (1985) (convictions). Although petitioner was convicted separately for bank larceny and bank robbery in violation of the principle articulated in Ball, he was not sentenced to separate terms of imprisonment on each count in violation of the proscription in Prince. Therefore, there was nothing unlawful about petitioner's prison sentences at the time they were imposed, and no need to modify them subsequently. Petitioner nevertheless contends that he must be resentenced because each sentence he received was originally based on a conviction for larceny as well as robbery, and may have been improperly influenced by the unlawful larceny conviction. See Pet. 7. The procedural history of this case belies that contention. The district court originally merged each larceny count into the corresponding robbery count for the purpose of sentencing. Recognizing that convictions on both counts were improper, the court of appeals remanded to the district court, inter alia, to clarify that each sentence was based on only one count. The district court's amended judgment on remand makes clear that each sentence was based on one conviction only -- for robbery -- and was not influenced by the lesser included larceny conviction. /2/ To be sure, the larceny convictions should have been vacated instead of merged (see Ball v. United States, 470 U.S. 856 (1985)), but, as the court of appeals correctly realized, that mistake in the court's procedure did not affect the sentences on the robbery counts. See App., infra, A5 (for purposes of the sentences of imprisonment, "the convictions for the lesser offenses * * * ceased to be of legal consequence."). Therefore it was unnecessary to remand to the district court for reconsideration of the sentence. See Green v. United States, 365 U.S. 301, 305-306 (1961) (plurality opinion) (remission of sentence not required where sentence was legal despite formal defect in court's sentencing procedure). The decisions of other courts of appeals that petitioner claims run contrary to the ruling below are fully consistent with it and are, in any event, factually distinguishable. In contrast with this case, the defendants in both Prince v. United States, supra, and United States v. Corson, 449 F.2d 544 (3d Cir. 1971), overruled on other grounds, United States v. Busic, 639 F.2d 940 (3d Cir.), cert. denied, 452 U.S. 918 (1981), (see Pet. 4-5) were sentenced to a separate and consecutive term of imprisonment for each count of unlawful entry and robbery under different subsections of 18 U.S.C. 2113. In each case, therefore, the sentence received by the defendant was unlawful at its inception, and a remand for resentencing was required. In United States v. Jasper, 481 F.2d 976 (3d Cir. 1973), the sentences for violations of 18 U.S.C. 2113(a), (b), and (d) were concurrent rather than consecutive. Nevertheless, the defendant was sentenced separately on each count, in violation of the principles set forth in Prince. Likewise, in Bryant v. United States, 417 F.2d 555 (D.C. Cir. 1969), cert. denied, 402 U.S. 932 (1971), in addition to receiving an aggregate sentence for convictions on four robbery counts, the defendant was also sentenced to a separate, concurrent term of imprisonment for the lesser included offense of unlawful entry to commit robbery. In this case, by contrast, petitioner received a single sentence for each robbery count and each robbery count alone. /3/ Those sentences were legal. Accordingly, resentencing was not required merely because the lesser included larceny convictions were subsequently vacated. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS E. BOOTH Attorney JANUARY 1991 /1/ The court of appeals also held that petitioner's motion to recuse the district court judge was properly denied. Pet. App. A5. Petition does not challenge that ruling before this Court. /2/ Petitioner does not challenge the district court's imposition of consecutive sentences for the two separate and distinct robberies. /3/ Petitioner's reliance on United States v. Edick, 603 F.2d 772 (9th Cir. 1979) is misplaced. There the court held that, where the district court improperly imposed distinct and consecutive sentences for offenses for which the defendant could not simultaneously be convicted, resentencing was barred if the defendant had served one of the sentences. In contrast, petitioner here has not finished serving either of his sentences; in any event, the district court's order makes clear that he did not receive discrete sentences for a greater and lesser included offense. The court of appeals below relied on the Fifth Circuit's decision in United States v. Shubbie, 778 F.2d 199, 200 (5th Cir. 1985), but that case is also readily distinguishable from the instant case. The defendant in Shubbie was sentenced to serve two concurrent five-years terms based respectively on convictions for making a false statement and receiving a firearm. He also received a two-year term, to run consecutively to the concurrent five year terms, for possession of a firearm by a felon. The court of appeals held that, in the wake of its ruling that the defendant could not simultaneously be convicted for the latter two offenses, it was proper for the district court to vacate the conviction and 5-year sentence for receiving a firearm without resentencing on the other counts, since the district court's action "had no effect on (the defendant's) prison term." 778 F.2d at 199. In Shubbie, as in the other cases cited by petitioner, the defendant received separate sentences for offenses for which he could not simultaneously be convicted. That is not this case. Thus, even if there is some tension between the holdings in Shubbie, and in Jaspers and Bryant, this case does not present the occasion for its resolution.