Larry Lynn Howard, Plaintiff-appellant, v. United States of America, Defendant-appellee, 914 F.2d 248 (4th Cir. 1990)

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US Court of Appeals for the Fourth Circuit - 914 F.2d 248 (4th Cir. 1990) Submitted Aug. 27, 1990. Decided Sept. 20, 1990

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert D. Potter, Chief District Judge. (CR No. 85-16-C; C/A No. 88-561-P-C)

Larry Lynn Howard, appellant pro se.

Kenneth P. Andresen, Charlotte, N.C., for appellee.

W.D.N.C.

AFFIRMED IN PART, VACATED IN PART.

Before SPROUSE and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:


Larry Lynn Howard appeals from the district court's order refusing relief under 28 U.S.C. § 2255. Howard was convicted of bank robbery (18 U.S.C. § 2113(a)) (Count One), bank larceny (18 U.S.C. § 2113(b)) (Count Two), and armed bank robbery (18 U.S.C. § 2113(d)) and use of a firearm during a felony (18 U.S.C. § 924(c)) (Count Three). Counts One and Two, and the bank robbery count in Count Three were merged at sentencing and one twenty-five year sentence imposed. Howard received a mandatory five-year consecutive sentence on the firearm offense in Count Three.

Because a defendant cannot be convicted and sentenced for violations of 18 U.S.C. § 2113(a), (b), and (d) as a result of a single offense, Howard contends that he should be resentenced. We agree that the offenses defined in Sec. 2113(a) and (b) are lesser included offenses of Sec. 2113(d), see United States v. Whitley, 759 F.2d 327 (4th Cir.), cert. denied, 474 U.S. 873 (1985), but rather than requiring resentencing, we vacate the convictions of bank robbery on Count One and bank larceny on Count Two. Cf. United States v. Amos, 566 F.2d 899, 901 (4th Cir. 1977). The clerk of the district court is requested to note the vacation of these counts on its docket.

Our review of the record and the district court's order accepting the magistrate's recommendation discloses that the appeal of Howard's remaining claims is without merit. Accordingly, with regard to those claims we affirm on the reasoning of the district court. Howard v. United States, CR 85-16-C; C/A No. 88-561-P-C (W.D.N.C. Jan. 17, 1990). 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 the decisional process.

AFFIRMED IN PART AND VACATED IN PART.