Glen Franklin Lowe, Appellant, v. United States of America, Appellee, 257 F.2d 409 (6th Cir. 1958)

Glen Franklin Lowe is serving a term of imprisonment on his plea of guilty to two counts of an indictment charging violation of section 2113(b) of Title 18 U.S.C. [theft from a bank insured by the F.D.I.C.] and of section 2113(d) [the aggravated crime of putting in jeopardy the lives of bank employees]. He has appealed to this court from an order of the United States District Court for the Eastern District of Michigan which set aside the ten-year sentence imposed under the first count of the indictment, but denied appellant's motion to set aside the fifteen-year sentence imposed under the second count of the indictment. The original order of conviction and sentence had provided that the sentences on the two counts should run concurrently. The stated intent of the United States District Judge at the time sentence was imposed was that appellant should be sentenced to a maximum of fifteen years imprisonment, which was well within the punishment authorized by the pertinent statute.

The record in the cause, the written briefs and arguments of the parties, with cited authorities, and the oral argument of the appellee all have been considered. We find no constitutional right of the appellant to have been violated by the district court's action in setting aside the ten-year sentence on the first count and denying the motion of appellant to set aside the fifteen-year sentence on the second count of the indictment. See O'Keith v. United States, 5 Cir., 158 F.2d 591, 592, wherein it was said: "Other courts have thought the longer sentence to be the one to be enforced for the aggravated crime, regardless of priority in pronouncement, since the intent of the court was to impose that much punishment in the case and the law authorized it. [Citing authorities.]"

The order of the district court is affirmed.