WILLIAM HOWARD DUNN, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE
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The court held that the sufficiency of evidence for a sentence enhancement is a matter for direct appeal, not a collateral attack via a motion to correct sentence.
Appellant was convicted of bank robbery and sentenced to 25 years. He later filed a motion to correct sentence, arguing the maximum lawful sentence wa…
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PER CURIAM.
On June 26, 1953, the appellant was convicted of bank robbery after trial by jury and sentenced to a prison term of twenty-five years. No appeal was prosecuted from the judgment of conviction, but subsequent collateral attacks upon that judgment have been unceasing. See Dunn v. United States, 6 Cir., 1956, 234 F. 2d 219; Dunn v. United States, 6 Cir., 1956, 238 F. 2d 908; Dunn v. United States, 6 Cir., 1957, 245 F. 2d 407.
The present appeal is from the denial by the district coux’t of a motion to cox*-rect sentence filed under 28 U.S.C.A. § 2255 and based upon a contention not heretofore advanced — that the maximum sentence which could lawfully have been imposed was twenty years, because there was no proof that the life of any person was put in jeopardy by the use of a dangerous weapon. Compare 18 U.S.C.A. § 2113(a) with 18 U.S.C.A. § 2113(d). The appellant points out that no weapon was produced at the trial, and that there was no evidence that shots were fired, physical injury inflicted, or specific threats made at the time of the robbery. He does concede that witnesses for the government testified that the bank robber was armed with “what appeared to be a large pistol.”
The appellant’s contentions have been conscientiously presented by court appointed counsel. We are of the opinion, however, that the question presented is one going to the sufficiency of the evidence, reviewable on direct appeal, but not open for consideration upon a motion to correct sentence filed under 28 U.S.C. A. § 2255.
The order denying the motion is accordingly affirmed.
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Citator
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United States v. Shields, 291 F.2d 798 (6th Cir. 1961)
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Will Curry, Jr. v. United States, 292 F.2d 576 (10th Cir. 1961)
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Foster v. United States, 345 F.2d 675 (6th Cir. 1965)
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dunn v. United States, 234 F.2d 219 (6th Cir. 1956)
- Dunn v. United States, 245 F.2d 407 (6th Cir. 1957)
- Dunn v. United States, 238 F.2d 908 (6th Cir. 1956)