Jasper Smallwood, Jr., Appellant, v. United States of America, Appellee, 308 F.2d 802 (10th Cir. 1962)

This is an appeal from an order of the District Court, District of Kansas, denying appellant's motion to vacate and set aside sentence under 28 U.S.C. § 2255.

Appellant was convicted by a jury on two counts of an information charging the assault of a postal clerk with intent to rob, and robbery by putting such clerk's life in danger — all in violation of 18 U.S.C. § 2114. Concurrent sentences of ten (10) and twenty-five (25) years were imposed. Shortly thereafter, on motion by appellant, the trial court ruled the offenses merged and corrected the sentence by imposing a single sentence of twenty-five (25) years.

Appellant's present motion asserts the insufficiency of the evidence to sustain his conviction and the invalidity of the sentence. Both points are governed by Martin v. United States (10 C.A.), 241 F.2d 693, where the same issues were presented under essentially the same operative facts. There we held that "(S)ince the illegal sentence * * * under count one was made to run concurrently with the lawful sentence of twenty-five years under count two, he [appellant] has suffered no injury because he is in lawful custody under the twenty-five year sentence." Indeed, appellant would be entitled to no relief even if the trial court had initially failed to change the sentence to prescribe a single twenty-five year period.

Affirmed.