454 F2d 286 Moore v. United States

454 F.2d 286

Denver Lane MOORE, Defendant-Appellant,
v.
UNITED STATES of America, Plaintiff-Appellee.

No. 71-1189.

United States Court of Appeals,
Sixth Circuit.

Jan. 17, 1972.

John G. Cobey, Cincinnati, Ohio (Court Appointed), Cohen, Todd, Kite & Spiegel, Cincinnati, Ohio, on brief, for appellant.

Byron E. Trapp, Asst. U. S. Atty., Cincinnati, Ohio, William W. Milligan, U. S. Atty., Cincinnati, Ohio, on brief, for appellee.

Before PHILLIPS, Chief Judge, and WEICK, Circuit Judge, and ROTH, District Judge.*

PER CURIAM.

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1

This is an appeal from the denial of a motion to vacate sentence under 28 U.S.C. Sec. 2255. Moore was convicted on both counts of a two count indictment. He was found guilty of breaking and entering a federally insured savings and loan association with felonious intent in violation of 18 U.S.C. Sec. 2113(a) and of taking and carrying away more than $100 in violation of 18 U.S.C. Sec. 2113(b). The District Court imposed a sentence of ten years on the first count and five years on the second count, the sentences to run concurrently. He could have been sentenced to not more than twenty years on the first count and ten years on the second count. Thereafter the District Court vacated the five year sentence due to its pyramiding effect under the decision of this court in United States v. Fried, 436 F.2d 784 (6th Cir.).

2

Moore contends that the offense of felonious breaking and entering merged with the actual theft offense and therefore the ten year sentence should have been vacated. In Fried this court held that in this situation there is a merger for sentencing purposes and not a merger of offenses. The question of which of two pyramided sentences should be vacated was within the sound discretion of the District Judge. The sentencing of a defendant convicted of crime is largely dependent on matters within the knowledge, experience and judgment of the sentencing court. This court will not disturb a sentence unless there has been a gross abuse of discretion. United States v. Latimer, 415 F.2d 1288, 1290 (6th Cir.). We do not find such an abuse of discretion in this case.

3

Affirmed.

*

Honorable Stephen J. Roth, Judge, United States District Court for the Eastern District of Michigan, sitting by designation