308 F2d 802 Smallwood v. United States

308 F.2d 802

Jasper SMALLWOOD, Jr., Appellant,
UNITED STATES of America, Appellee.

No. 7013.

United States Court of Appeals Tenth Circuit.

Sept. 10, 1962, Rehearing Denied Oct. 12, 1962.

Smallwood, pro se.

Benjamin E. Franklin, Kansas City, Kan., for appellee.

Before MURRAH, Chief Judge, and PHILLIPS and BREITENSTEIN, Circuit judges.


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This is an appeal from an order of the District Court, district of Kansas, denying appellant's motion to vacate and set aside sentence under 28 U.S.C. 2255.


Appellant was convicted by a jury on two counts of an information charging the assault of a postal clerk with intent to rob, and robbery by putting such clerk's life in danger-- all in violation of 18 U.S.C. 2114. Concurent sentences of ten (10) and twenty-five (25) years were imposed. Shortly thereafter, on motion by appellant, the trial court ruled the offenses merged and corrected the sentence by imposing a single sentence of twenty-five (25) years.


Appellant's present motion asserts the insufficienty of the evidence to sustain his conviction and the invalidity of the sentence. Both points are governed by Martin v. United States (10 C.A.), 241 F.2d 693, where the same issues were presented under essentially the same oppresented facts. There we held that 'Since the illegal sentence * * * under count one was made to run concurrently with the lawful sentence of twenty-five years under count two, he (appellant) has suffered no injury because he is in lawful custody under the twenty-five year sentence.' Indeed, appellant would be entitled to no relief even if the trial court had initially failed to change the sentence to prescribe a single twnety-five year period.