Opinion · Court of Appeals for the Fifth Circuit

Charles Edward Rollins v. United States

Charles Edward Rollins v. United States, 543 F.2d 574 (5th Cir. 1977)

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1977-02-02
Topic
bankruptcy

How later courts describe this case

  • another “impossible coexistence” case, where neither sentence had priority; both were vacated

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Cited by
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ROLLINS v. UNITED STATES,543 F.2d 574(5th Cir. 1976)
CHARLES EDWARD ROLLINS, PETITIONER-APPELLANT, v. UNITED STATES OF AMERICA,
RESPONDENT-APPELLEE.
No. 76-2088.
Summary Calendar.fn*
United States Court of Appeals, Fifth Circuit.
December 6, 1976.
Rehearing and Rehearing En Banc Denied February 2, 1977.
Page 575
W. Michael Adams, Shreveport, La. (Court-appointed), for petitioner-appellant.

Donald E. Walter, U.S. Atty., Paul Lynch, D. H. Perkins, Jr., Asst. U.S. Attys., Shreveport, La., for respondent-appellee.
Appeal from the United States District Court for the Western District of Louisiana.
Before BROWN, Chief Judge, and GEWIN and MORGAN, Circuit Judges.
PER CURIAM:
[1] Appellant pled guilty to possession of an unregistered "sawed-off" shotgun (count I) and possession of a firearm not identified by a serial number (count II) in violation of26 U.S.C. §§ 5861(d), (i) and5871. He was sentenced to three years in prison on the first count and was placed on five years supervised probation on the second count. After having fully served his prison term, appellant's probation was revoked when he was convicted in a state court of aggravated assault. At that time he was sentenced to 10 years in prison on the second count of the casesub judice.1

[2] On appeal, Rollins raises the following issues: (1) waiver of the right to counsel; (2) improper inducement to plead guilty; (3) double jeopardy; and (4) the legality of the ten-year sentence imposed on him. A careful review of the record and briefs indicates merit only in the last issue listed above. With regard to the first three issues, there is no error and the judgment of conviction is affirmed as to them.

[3] We note that both counts of the indictment concerned possession of the same weapon. Thus, appellant was sentenced to 13 years in prison for a single act that happened to violate two separate provisions of the National Firearms Act.26 U.S.C. § 5861. It is our opinion that such sentencing violates the intent of Congress in setting a maximum penalty of ten years in prison, a $10,000 fine, or both.26 U.S.C. § 5871. Other circuits have faced this question and reached the same conclusion.United States v.Ackerson,502 F.2d 300(8th Cir. 1974),vacated on othergrounds,419 U.S. 1099,95 S.Ct. 769,42 L.Ed.2d 796(1975);United States v. Tankersley,492 F.2d 962(7th Cir. 1974);United States v. Clements,471 F.2d 1253(9th Cir. 1972).SeeUnited States v. Kiliyan,504 F.2d 1153(8th Cir. 1974),cert.denied,420 U.S. 949,95 S.Ct. 1333,43 L.Ed.2d 428(1975). Consequently, we vacate the sentence imposed by the district court and remand this case for resentencing to a term that, when coupled with the three years already served, will not exceed the statutory maximum provided in26 U.S.C. § 5871.

[4] AFFIRMED IN PART, VACATED IN PART, and REMANDED.Page 576
  1. Rule 18, 5 Cir.; seeIsbell Enterprises, Inc. v. CitizensCasualty Co. of New York et al.,5 Cir. 1970,431 F.2d 409, Part I. ↩
  2. This ten year sentence runs consecutively to the sentence imposed in the state court on the aggravated assault charge. ↩