Opinion
No. 79-1807.
Argued and Submitted July 3, 1980.
February 2, 1981.
Stuart I. Teicher, Portland, Or., for defendant-appellant.
William M. Youngman, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon.
The opinion of August 7, 1980, is hereby withdrawn and the following is substituted.
Appellant pleaded guilty to one count of bank robbery by force, violence, and intimidation, 18 U.S.C. § 2113(a) (1976), and to one count of carrying a firearm during the commission of a felony, 18 U.S.C. § 924(c)(2) (1976). Section 2113 deals specifically with the felony of bank robbery, while section 924(c) provides for enhanced sentencing for use of, or carrying, a firearm during the commission of any felony. In keeping with the decision of this court in United States v. Brown, 602 F.2d 909 (9th Cir. 1979), the district court imposed consecutive sentences of twenty years for bank robbery and five years for carrying a firearm.
Appellant appealed the judgment of conviction on the ground that the Brown decision was contrary to the intent of Congress, which he interpreted as not authorizing multiple sentences for a single bank robbery. Prior to the date on which oral argument was heard, the Supreme Court decided Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980), which held that 18 U.S.C. § 924(c) may not be applied to a defendant who uses a firearm in the course of a felony that is proscribed by a statute which itself authorizes enhancement if a dangerous weapon is used. For several reasons, we feel that the rationale of Busic controls the situation presented by this case as well, in which appellant pleaded guilty to carrying, rather than using, a firearm.
We conclude that with the enactment of section 2113 Congress covered the field with respect to the permissible penalties for bank robbery; thus, enhancement under section 924(c) of appellant's sentence for bank robbery is inappropriate. The legislature has comprehensively addressed the felony of bank robbery with section 2113 by dealing separately with robberies involving differing degrees of force and intimidation and providing penalties ranging from ten years to twenty-five years imprisonment, depending on the increased seriousness of the violation. Thus, the legislature evaluated bank robberies of varying violence and provided for distinct penalties for each category. There are two categories relevant to the case before us: section 2113(a), to which appellant pleaded guilty, which prohibits bank robbery "by force and violence, or by intimidation" and provides for a penalty of a $5000 fine, twenty years imprisonment, or both; and section 2113(d), the enhancement provision within the statute, which provides for a penalty of a $10,000 fine, twenty-five years imprisonment, or both for "use of a dangerous weapon or device" during the commission of the felony.
18 U.S.C. § 2113. Bank Robbery and incidental crimes
We invoke the doctrine of negative implication, which states "that the legislature by its language has preempted the field to the exclusion of the court," R. Dickerson, The Interpretation and Application of Statutes, (1975), in determining that this court may not broaden the reach of enhanced sentencing for bank robbery beyond that which is provided for by section 2113(d). Congress expressed the enhancement provision in such a manner that it applies solely to cases involving "the use of a dangerous weapon or device"; the legislature has therefore indicated its desire not to have it apply to a defendant who merely carries a weapon. We cannot affirm an enhanced sentence for the felony of bank robbery unless the defendant comes squarely within the terms of section 2113(d) by using a weapon during the crime. Section 924(c)(2) allows enhanced sentencing when a defendant carries a firearm during the commission of a felony; although this provision is appropriate in conjunction with felony statutes other than section 2113, its effect with respect to the bank robbery statute is to expand impermissibly the scope of violations appropriate for enhanced sentencing beyond that determined by Congress to be proper for that particular felony.
Our determination that section 924(c) provides an inappropriate vehicle by which a court may enhance the sentence of a defendant convicted under section 2113 is supported by the legislative history of the general enhancement statute. Representative Poff, the sponsor of section 924(c), discussed the relationship among that statute and certain other statutes already in effect:
For the sake of legislative history, it should be noted that my substitute is not intended to apply to title 18, sections 111, 112, or 113 which already define the penalties for the use of a firearm in assaulting officials, with sections 2113 or 2114 concerning armed robberies of the mail or banks, with section 2231 concerning armed assaults upon process servers or with chapter 44 which defines other firearm felonies.
114 Cong.Rec. 22232 (1968) (emphasis added).
It is apparent from Representative Poff's statement that Congress understood and intended that section 2113 be the sole source of enhanced sentences for violations of that statute. We thus agree that "[t]his statement is clearly probative of a legislative judgment that the purpose of § 924(c) is already served whenever the substantive federal offense provides enhanced punishment for use of a dangerous weapon." Simpson v. United States, 435 U.S. 6, 13, 98 S.Ct. 909, 913, 55 L.Ed.2d 70 (1978). Although both Busic and Simpson have limited their discussion of the impact of this legislative history to the relationship between section 2113(d) and section 924(c)(1), we feel that Representative Poff's broad statement disapproves of any use of section 924(c) in conjunction with section 2113.
Another important factor in our decision is that if we were to find that enhanced sentencing under section 924(c)(2) is permissible when a bank robber carries a weapon during the commission of the felony and is therefore not subject to section 2113(d), we would be imputing to Congress the unlikely intention to punish more severely those who merely carry a weapon rather than use one. This results because the maximum possible sentence under section 2113(d) is twenty-five years, while the maximum possible sentence under section 2113(a) and 924(c)(2) is thirty years for first offenders. We follow a previous decision of this court by "look[ing] beyond the express language" of section 924(c) "where a literal interpretation would thwart the purpose of the overall statutory scheme or lead to an absurd result." International T. T. Corp. v. General T. E. Corp., 518 F.2d 913, 917-918 (9th Cir. 1974). Although by its express terms section 924(c)(2) can be applied to appellant's case, we decline to approve of its use in conjunction with section 2113(a). If we were to do so, we would be construing the two statutes so as to reach the absurd consequence of encouraging the use of dangerous weapons; if enhanced sentencing under section 924(c)(2) for carrying a firearm during a bank robbery were permitted in connection with section 2113, it would be possible for a bank robber to receive a lesser sentence when he uses a weapon during the commission of the felony than when he merely carries one.
For the above reasons, we find that the district court's imposition of a five year sentence under section 924(c), in addition to the twenty year sentence under section 2113(a), is unlawful. We agree with the Fifth Circuit that, in order to correct illegal sentences, "the proper procedure is not to vacate the convictions, but only the sentences." Johnson v. United States, 619 F.2d 366, 369 n.9 (5th Cir. 1980). See United States v. Edick, 603 F.2d 772, 776 (9th Cir. 1979); United States v. Corson, 449 F.2d 544, 551 (3rd Cir. 1971). See, e. g., United States v. Shillingford, 586 F.2d 373, 376 (5th Cir. 1978). We thus remand this case to the district court to vacate the erroneous sentence and to resentence appellant consistent with this opinion.
I concur in the opinion of the court. An explanation of my previous dissent from the disposition of this case is appropriate, however.
Previously I suggested that appellant's conviction be reversed and that the prosecutor should determine whether reprosecution under 18 was appropriate. This was based on the assumption that reprosecution under 18 U.S.C. § 2113(d) was possible which, in turn, rested on the assumption that the appellant used a firearm during the commission of the robbery. It now appears that the indictment charged the appellant with carrying a firearm only. Enhancement under 18 U.S.C. § 2113(d), therefore, is not available.
That being the case, and resort to 18 U.S.C. § 924(c)(2) not being available, pursuant to the court's opinion with which I concur, it follows that there is no reason to object to remanding this case merely for the purpose of correcting the sentence. I therefore concur in the disposition of the case as well.