447 F2d 493 United States v. White 71-1687

447 F.2d 493

UNITED STATES of America, Plaintiff-Appellee,
v.
John Cortez WHITE, Defendant-Appellant.
No. 71-1687 Summary Calendar.*
*(1) Rule 18, 5 Cir.; See Isbell Enterprises, Inc.
v.
Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431
F.2d 409.

United States Court of Appeals, Fifth Circuit.

Sept. 1, 1971.

Irving Silver, Feibelman & Silver, Mobile, Ala., for defendant-appellant.

C. S. White-Spunner, Jr., U.S. Atty., Irwin W. Coleman, Jr., Asst. U.S. Atty., Mobile, Ala., for plaintiff-appellee.

Before BELL, AINSWORTH, and GODBOLD, Circuit Judges.

PER CURIAM:

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1

Appellant was convicted of (1) robbing a bank in violation of 18 U.S.C.A. 2113(a), and (2) assaulting and putting in jeopardy the lives of persons by use of a dangerous weapon while committing the bank robbery in violation of 18 U.S.C.A. 2113(d). He was sentenced to twenty years under the (a) count and to twenty-five years under the (d) count, to run concurrently. On and remanded for the District Court to appeal, we vacated the two sentences enter a single sentence. United States v. White, 5 Cir., 1971, 436 F.2d 1380.

2

On remand, appellant was resentenced to twenty-five years imprisonment on the conviction under 2113(d). The sentence on the conviction under 2113(a) was vacated. See Eakes v. United States, 5 Cir., 1968, 391 F.2d 287. The present appeal is from the judgment resentencing appellant.

3

( 2) Appellant argues that the district court committed error in failing to require a new jury trial, rather than merely resentencing him as stated. This contention is without merit. In fact, it was specifically rejected in United States v. White, 5 Cir., 1971, 440 F.2d 978.

4

Appellant also urges that his sentence was too harsh and that we should modify it. In Zaffarano v. Blackwell, 5 Cir., 1967, 383 F.2d 719, 721, we said:

5

'This Court is without power to modify a sentence which was legally imposed and within the bounds prescribed by statute.'

6

Thus this contention is also without merit.

7

Affirmed.