United States v. Victor P. Diogenes

638 F.2d 125 UNITED STATES of America, Plaintiff-Appellee, v. Victor P. DIOGENES, Defendant-Appellant. No. 79-1807. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 3, 1980. Feb. 2, 1981. Stuart I. Teicher, Portland, Or., for defendant-appellant. William M. Youngman, Asst. U. S. Atty., Portland, Or., for plaintiff-appellee. Appeal from the United States District Court for the District of Oregon. Before SNEED and NELSON, Circuit Judges, and GRAY * , District Judge. NELSON, Circuit Judge: 1 The opinion of August 7, 1980, is hereby withdrawn and the following is substituted. 2 Appellant pleaded guilty to one count of bank robbery by force, violence, and intimidation, 18 U.S.C. § 2113 (a) (1976), and to one count of carrying a firearm during the commission of a felony, 18 U.S.C. § 924 (c)(2) (1976). Section 2113 deals specifically with the felony of bank robbery, while section 924(c) provides for enhanced sentencing for use of, or carrying, a firearm during the commission of any felony. In keeping with the decision of this court in United States v. Brown, 602 F.2d 909 (9th Cir. 1979), the district court imposed consecutive sentences of twenty years…

The opinion of August 7, 1980, is hereby withdrawn and the following is substituted.

Appellant pleaded guilty to one count of bank robbery by force, violence, and intimidation, 18 U.S.C. § 2113 (a) (1976), and to one count of carrying a firearm during the commission of a felony, 18 U.S.C. § 924 (c)(2) (1976). Section 2113 deals specifically with the felony of bank robbery, while section 924(c) provides for enhanced sentencing for use of, or carrying, a firearm during the commission of any felony. In keeping with the decision of this court in United States v. Brown, 602 F.2d 909 (9th Cir. 1979), the district court imposed consecutive sentences of twenty years for bank robbery and five years for carrying a firearm.

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 was heard, the Supreme Court decided Busic v. United States, 446 U.S. 398 , 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…

concurring:

I concur in the opinion of the court. An explanation of my previous dissent from the disposition of this case is appropriate, however.

Previously I suggested that appellant’s conviction be reversed and that the prosecutor should determine whether reprosecution was appropriate. This was based on the assumption that reprosecution under 18 U.S.C. § 2113 (d) was possible which, in turn, rested on the assumption that the appellant used a firearm during the commission of the robbery. It now appears that the indictment charged the appellant with carrying a firearm only. Enhancement under 18 U.S.C. § 2113 (d), therefore, is not available.

That being the case, and resort to 18 U.S.C. § 924 (c)(2) not being available, pursuant to the court’s opinion with which I concur, it follows that there is no reason to object to remanding this case merely for the purpose of correcting the sentence. I therefore concur in the disposition of the case as well.