United States of America, Plaintiff-appellee, v. Frankie Randall, Defendant-appellant, 822 F.2d 56 (4th Cir. 1987)

Frankie Randall, an inmate confined at the Federal Correctional Institute in Petersburg, Virginia, appeals from the denial of habeas corpus relief pursuant to 28 U.S.C. § 2255 and the denial of his motion for reconsideration. Randall was convicted of bank robbery, in violation of 18 U.S.C. § 2113(a), (f) and Sec. 2 (count one); bank larceny, in violation of 18 U.S.C. § 2113(b), (f) and Sec. 2 (count two); and assault with a firearm during a bank robbery, in violation of 18 U.S.C. § 2113(d), (f) and Sec. 2. All three convictions arose from the robbery of the Maryland National Bank in Baltimore, Maryland on January 28, 1982. The district court sentenced Randall to seventeen years imprisonment as to count one, ten years imprisonment as to count two, and eighteen years imprisonment as to count three, the counts to run concurrently with each other, making a total period of eighteen years imprisonment. The district court also made provision for setting aside the sentences imposed under counts one and two upon affirmance on appeal. Randall appealed his conviction, and this Court affirmed it. See United States v. Randall, No. 83-5006 (4th Cir., Nov. 7, 1984) (unpublished). The district court has not entered an order setting aside the sentences imposed under counts one and two.

This Court decided in United States v. Whitley, 759 F.2d 327 (4th Cir. 1985) (en banc), cert. denied, --- U.S. ----, 54 U.S.L.W. 3227 (Oct. 7, 1985), that the several subdivisions of 18 U.S.C. § 2113 created a series of lesser included offenses involving bank robbery. Consistent with Whitley, Randall, upon being convicted for violation of Sec. 2113(d), could not properly be convicted and sentenced for violations of Sec. 2113(a) and (b) as a result of a single criminal transaction. Accordingly, the judgment of the district court is vacated to the extent it refused relief from the convictions and sentences under counts one and two, and the case is remanded with direction that the convictions and sentences under those counts be set aside. In all other respects, the district court's denial of Sec. 2255 relief is affirmed based on the reasoning of the district court. United States v. Randall, C/A No. 86-1055 (D. Md., April 9, 1986).

Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument. Leave to proceed in forma pauperis is granted.

AFFIRMED IN PART; VACATED IN PART and REMANDED.