United States v. Victor P. Diogenes

Appellant pleaded guilty to one count of unarmed bank robbery, 18 U.S.C. § 2113 (a), and one count of use of a firearm during the commission of a felony, 18 U.S.C. § 924 (c). In keeping with the decision of this court in United States v. Brown, 602 F.2d 909 (9th Cir. 1979), appellant was sentenced to consecutive terms of imprisonment (20 years for unarmed bank robbery and 5 years for use of a firearm) by the district court.

Appellant appealed the judgment of conviction on the ground that the Brown decision was contrary to the intent of Congress which he interpreted as not authorizing multiple sentences for a single bank robbery. Prior to the date on which oral argument in the appeal was heard, the Supreme Court decided Busic v. United States,U.S. -, 100 S.Ct. 1747 , 64 L.Ed.2d 381 (1980), which held that 18 U.S.C. § 924 (c) may not be applied to a defendant who uses a firearm in the course of a felony that is proscribed by a statute which itself authorizes enhancement if a dangerous weapon is used. That is the situation in this case. Accordingly, the sentence imposed by the trial court is vacated and the matter remanded for resentencing.

concurring in the reversal and dissenting…