207 F2d 412 Herndon v. United States

207 F.2d 412

HERNDON

v.

UNITED STATES.

No. 6676.

United States Court of Appeals, Fourth Circuit.

Argued October 5, 1953.

Decided October 9, 1953.

No attorney or brief for appellant.

Milford L. Gibson, Asst. U. S. Atty., Kingwood, W. Va. (Howard Caplan, U. S. Atty., Clarksburg, W. Va., on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PER CURIAM.

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1

This is an appeal from the denial of a motion made under 28 U.S.C. § 2255 for correction of a sentence of imprisonment. Appellant pleaded guilty to an information containing two counts, one of which charged breaking into a post office and the other larceny of packages and letters. He was sentenced to terms of imprisonment under both counts and his contention now is that only one sentence was proper. There is no merit in this contention. Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153; Montgomery v. United States, 4 Cir., 146 F.2d 142. Appellant also contends that the sentence of three years imposed under the second count of the indictment is illegal since the offense charged was committed prior to the recent amendment of the statute and it is not alleged that the packages and letters stolen were of a greater value than $100. This point is well taken. Tinder v. United States, 345 U.S. 565, 73 S.Ct. 911. The order appealed from, 113 F.Supp. 730, will accordingly be reversed and the case will be remanded with direction to set aside the sentence on the second count of the indictment and resentence the defendant on that count.

2

Reversed and remanded with directions.