United States of America, Plaintiff-appellee, v. Cary Junior Williams, A/k/a Cary Junior Anthony, Defendant-appellant, 902 F.2d 30 (4th Cir. 1990)

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U.S. Court of Appeals for the Fourth Circuit - 902 F.2d 30 (4th Cir. 1990)

Submitted April 2, 1990. Decided April 13, 1990


Appeal from the United States District Court for the Middle District of North Carolina, at Winston-Salem. Richard C. Erwin, Chief District Judge. (CR No. 83-166-WS)

Cary Junior Williams, appellant pro se.

Robert Holt Edmunds, Jr., United States Attorney, Greensboro, N.C., for appellee.

M.D.N.C.

AFFIRMED.

Before ERVIN, Chief Judge, and PHILLIPS and CHAPMAN, Circuit Judges.

PER CURIAM:


Cary Junior Williams appeals from the district court's dismissal of his motion to correct an illegal sentence, brought pursuant to Fed. R. Crim. P. 35(a). After reviewing the record and the district court's opinion, we find that there is no merit to this appeal and affirm.

Williams correctly argues that 18 U.S.C. § 2113(a) is a lesser included offense of 18 U.S.C. § 2113(d) and that a defendant may not be convicted and sentenced for both offenses as a result of a single criminal transaction. United States v. Whitley, 759 F.2d 327 (4th Cir.) (en banc), cert. denied, 474 U.S. 873 (1985); United States v. Evans, 665 F.2d 54 (2d Cir. 1981). This, however, has not occurred here. Williams was charged with violations of Secs. 2113(a) and 2113(d) in separate counts of a two-count indictment. While the judgment and commitment order shows that a verdict of guilty was returned on both counts, it also clearly states that these counts were consolidated for the entry of judgment and that Williams was convicted only of the single "offense of bank robbery, in violation of 18 U.S.C. §§ 2113(a) and 2113(d), as charged in Counts 1 and 2 of an [sic] indictment...." Williams was then sentenced to a single term of 25 years, the maximum punishment for a violation of Sec. 2113(d).

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid in the decisional process.

AFFIRMED