UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ERNEST LAIL, DEFENDANT-APPELLANT

11th Cir. | 1987-04-20
No. 86-5291
Before GODBOLD and ANDERSON, Circuit Judges, and SWYGERT, Senior Circuit Judge.
814 F.2d 1529 Court of Appeals for the Eleventh Circuit (1987) Positive Treatment
Cited by 18 cases

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Holding

A defendant may be convicted under multiple subsections of 18 U.S.C. § 2113, but may only be sentenced on one.

Facts & Procedural History

Appellant was convicted of armed bank robbery and forcing accompaniment during the robbery, receiving consecutive sentences on both counts. He appeale…

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Topics
Resentencing Consecutive Sentences

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Opinion of the Court
GODBOLD, Circuit Judge:

GODBOLD, Circuit Judge:

Appellant was convicted by a jury in two counts, one of armed bank robbery in violation of 18 U.S.C. § 2113(d) and the other of “forcing another to accompany him without their consent” during the course of the robbery, in violation of 18 U.S.C. § 2113(e). He was sentenced to 20 years on each count, the sentences to run consecutively. We affirm the convictions but remand for resentencing.

Lail argues that multiple sentences on convictions for multiple subsections of § 2113 are improper. It is undisputed by the parties and binding precedent in this circuit that a defendant may be convicted under multiple subsections of § 2113 but may be sentenced on only one. See, e.g., U.S. v. Bennett, 547 F. 2d 1235 (5th Cir.1977); Sullivan v. U.S., 485 F. 2d 1352 (5th Cir.1973). Appellant urges us to simply vacate one of the sentences and leave the other in effect, as our predecessor court did in Sullivan. Unlike the sentences in Sullivan, however, Lail’s two sentences were imposed consecutively. In that situation the better course is to remand to the district court for resentencing. In an analogous situation this court held that:

Sentencing on a multi-count conviction is an interrelated and intertwined process because of the statutory provisions for concurrent and consecutive sentences____ Where an entire conviction is challenged on direct appeal, double jeopardy and due process are not implicated when all sentences, both proper and improper, are remanded, because of the holistic nature of the trial judge’s sentencing decision. Multiple count convictions present the trial judge with the need for a sentencing scheme which takes into consideration the total offense characteristics of a defendant’s behavior. When that scheme is disrupted because it has incorporated an illegal sentence, it is appropriate that the entire case be remanded for sentencing.

U.S. v. Rosen, 764 F. 2d 763, 767 (11th Cir.1985), cert. denied,—U.S.-, 106 S.Ct. 806, 88 L.Ed.2d 781 (1986).

Lail’s contention that the evidence was insufficient to support his § 2113(e) conviction is without merit. The convictions are AFFIRMED. The sentences are VACATED and the case REMANDED for resentencing.

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Citator

Cited By

  • United States v. Edison Jordan, 915 F.2d 622 (11th Cir. 1990)
    …only entertained these challenges but ordered appropriate relief when necessary. See, e.g., United States v. Alvarez-Moreno, 874 F. 2d 1402, 1414 (11th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1484, 108 L.Ed.2d 620 (1990); United States v. Lail, 814 F. 2d 1529, 1529-30 (11th Cir.1987); United States v. Rosen, 764 F. 2d 763, 765-67 (11th Cir.1985), cert. denied, 474 U.S. 1061, 106 S.Ct. 806, 88 L.Ed.2d 781 (1986); United States v. Lippner, 676 F. 2d 456, 467-68 (11th Cir.1982); United States v. Vasquez, 50…
  • United States v. Stinson, 97 F.3d 466 (11th Cir. 1996)
    …e is vacated and the case is remanded for resen-tencing, the district court is free to reconstruct the sentence utilizing any of the sentence components. Id. See also United States v. Jackson, 923 F. 2d 1494 (11th Cir.1991); United States v. Lail, 814 F. 2d 1529 (11th Cir.1987). If this were not the effect of our vacatur, we would have removed the illegal portion of the sentence and simply recalculated the sentence, instead of remanding to the district court for a time-consuming and expensive hearing. The…
  • United States v. Alvarez-Moreno, 874 F.2d 1402 (11th Cir. 1989)
    …ecutive scheme for a total of forty-five (45) years. When a sentencing scheme is disrupted because the district court “has incorporated an illegal sentence, it is appropriate that the entire case be remanded for resentencing.” United States v. Lail, 814 F. 2d 1529, 1530 (11th Cir.1987) (quoting United States v. Rosen, 764 F. 2d 763, 767 (11th Cir.1985), cert. denied, 474 U.S. 1061, 106 S.Ct. 806, 88 L.Ed.2d 781 (1986)). As we stated in Lail, multiple count convictions present a district judge with the duty to…

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