VOGEL, Circuit Judge.
John Robert Sawyer, the appellant herein, was indicted in the United States District Court for the District of Nebraska wherein he was charged in four counts with violations of the Federal Bank Robbery Act, 18 U.S.C.A. § 2113. Sawyer entered pleas of guilty to Counts 1 and 3 of the indictment. On March 23, 1962, he was sentenced by the District Court to a period of twenty years on Count 1 and a period of ten years on Count 3, such sentences to run consecutively and not concurrently. Counts 2 and 4 were dismissed. Thereafter the appellant filed in the District Court a motion for correction of sentence under Rule 35, Federal Rules of Criminal Procedure, 18 U.S.C.A. On July 18, 1962, the District Court overruled the motion for correction of sentence. From that order appeal is taken to this court.
Appellant's contentions here are: That under the Federal Bank Robbery Act the offenses described therein merge, at least for the purposes of sentence; that Count 1 in the Sawyer indictment thereby merged with Count 3 since the latter is the more aggravated offense; and that therefore the sentence on Count 1 is invalid and this court should set it aside, leaving stand only the ten-year sentence on Count 3.
An understanding of the difficulty requires consideration of the two counts of the indictment to which Sawyer pleaded guilty. They are as follows:
18 U.S.C.A. § 2113(a), referred to as having been violated in Count 1, provides as follows:
18 U.S.C.A. § 2113(d), referred to in Count 3 of the indictment, provides as follows:
The appellant, by his pleas of guilty, stands convicted in Count 1 of committing a bank robbery in violation of § 2113 (a). In Count 3 he stands convicted of committing an assault with a dangerous weapon during the perpetration of the robbery, such being in violation of 18 U.S.C.A. § 2113(d).
While the courts are now in basic agreement that the proper construction of the Federal Bank Robbery Act, 18 U.S.C.A. § 2113, prohibits the imposition of more than one sentence for simultaneous violations of its several provisions, the difficulty arises through an analysis of the various theories by which this result is reached. The problem has presented itself to the federal courts of all levels, and the result has been an irreconcilable conflict between the diverse conclusions. See Annotation in 59 A.L.R. 2d 946. While no attempt will be made to summarize in detail the innumerable decisions, it may be of benefit to outline the basic theories.
Some courts have adopted the view that the sentence imposed on the first count is the only valid one, basing their opinion upon the theory that the court by imposing sentence on Count 1 had exhausted its power. While this theory would, of course, be of no help to appellant herein, even so it would seem that the Supreme Court in Green v. United States, 1961, 365 U.S. 301, 306, 81 S.Ct. 653, 5 L.Ed.2d 670, rehearing denied 365 U.S. 890, 81 S.Ct. 1024, 6 L.Ed. 2d 201, has dispelled any authenticity from that view.
Other courts have adopted the theory that the less aggravated form of offense against the Federal Bank Robbery Act merges with the more aggravated form and that sentence should be imposed only upon the more aggravated form. Appellant here sponsors such theory. He claims that it is supported by Prince v. United States, 1957, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370, and a number of other cases including particularly some from the 2nd and 9th Circuits, Smith v. United States, 9 Cir., 1961, 287 F.2d 270, certiorari denied 366 U.S. 946, 81 S.Ct. 1676, 6 L.Ed.2d 856; United States v. Di Canio, 2 Cir., 1957, 245 F.2d 713, certiorari denied 355 U.S. 874, 78 S.Ct. 126, 2 L.Ed.2d 79; and United States v. Tarricone, 2 Cir., 1957, 242 F.2d 555. The cases accepting the merger theory have, with one exception (Wilson v. United States, 9 Cir., 1944, 145 F.2d 734) all dealt with situations where the heavier penalty was imposed on the second or more aggravated count. The result was that the longer sentence was treated as the valid one, and the intention of the sentencing court was vindicated to that extent. If the merger theory were applied to situations
The difficulties with the exhaustion of power theory and the merger theory have resulted in a third contention, the "intention of the court" theory, which allows the court to determine either sentence as valid. We think the Supreme Court in Green v. United States, supra, gives substantial support to this theory in stating at page 306 of 365 U.S., at page 656 of 81 S.Ct. 656:
Nothing in that decision justifies a contention that the Supreme Court would have vitiated the trial court's judgment if the twenty-five-year sentence had been imposed upon the less aggravated offense. The plain language of the opinion indicates that when the trial court commits the procedural error of imposing two sentences, the appellate court should give support to his intention by upholding the longer of the two.
This court, in Hardy v. United States, 8 Cir., 1961, 292 F.2d 192; La Duke v. United States, 8 Cir., 1958, 253 F.2d 387; and Kitts v. United States, 8 Cir., 1957, 243 F.2d 883, rejected the merger theory. In Hardy, we said, at page 194:
In La Duke, the contention of the appellant was identical with that taken by Sawyer in the instant case. We reaffirmed our rejection of the merger theory as expressed in prior cases and cited Purdom v. United States, 10 Cir., 1957, 249 F.2d 822, certiorari denied 355 U.S. 913, 78 S.Ct. 341, 2 L.Ed.2d 273, wherein Judge Phillips, in meeting a similar contention, analyzed the opinion of the Supreme Court in Prince, concluded that that case did not adopt the merger theory, and sustained the sentence of twenty years there imposed on Count 1. We find no sound reason now for reversing our position that under the provisions of the Federal Bank Robbery Act lesser offenses do not merge into the more aggravated ones so that sentence could be imposed only upon the more aggravated form.
The situation with which we are here confronted is similar to and, we believe, controlled by our opinion in Holbrook v. United States, 8 Cir., 1943, 136 F.2d 649. Therein the appellants were indicted in two counts, the first being based upon a charge of robbery accompanied by force and putting the employees of the bank in fear, and the second count being based upon the charge that the robbery was accompanied by putting the lives of the bank's employees in jeopardy by the use of dangerous weapons. Upon pleas of guilty, each defendant was given consecutive sentences of twenty years on the first count and five years on the second count, although the latter was the more aggravated form of the offense. It was the contention there that the sentence on the first count was void. Referring to 12 U.S.C.A. § 588b dealing with the robbing of a bank insured by the Federal Deposit Insurance Corporation, which was the predecessor statute to that here involved, we said, beginning at page 651:
In the instant case, Sawyer has not completely served either sentence. We believe here, as we did in Holbrook, that "no sound legal reason exists why the longer sentence cannot properly be made to constitute the real punishment for the offense", and that it more nearly represents the punishment the District Court intended to impose. Cf. Green v. United States, supra. Accordingly, as we did in Holbrook, this case will be remanded with directions to deny the appellant's motion insofar as the twenty-year sentence on Count 1 is concerned but with directions to vacate the ten-year sentence imposed on Count 3.
Sawyer was represented here by Mr. William E. Morrow, Jr., of Omaha, Nebraska, who was appointed by the court. We are indebted to Mr. Morrow for his careful, painstaking and able consideration of the problem as represented by the briefs filed in appellant's behalf and his oral argument in this court which necessitated a trip at his own expense from Omaha, Nebraska, to St. Louis, Missouri.