UNITED STATES of America v. Edward T. WIMBUSH, Appellant

United States Court of Appeals for the District of Columbia Circuit1973-01-11No. No. 72-1136

475 F.2d 347

Summary · law.co

Holding. The court vacated the conviction for assault with a dangerous weapon but affirmed the convictions for assault with intent to kill while armed with a dangerous weapon and carrying a pistol without a license, with no remand for resentencing.

Edward Wimbush was convicted of three offenses: assault with intent to kill while armed with a dangerous weapon (sentenced to 3–9 years), assault with a dangerous weapon (2–6 years), and carrying a pistol without a license (1 year), all to run concurrently. The court initially affirmed the judgment without opinion. Wimbush then petitioned for rehearing, citing two recent appellate decisions in which convictions for lesser included offenses had been vacated. He asked that either his entire conviction be reversed or, alternatively, that the conviction for assault with a dangerous weapon be vacated.

The court granted Wimbush's request in part. Based on the precedent established in those recent cases, the court vacated the conviction for assault with a dangerous weapon. However, the court declined to remand for resentencing on the greater offense, distinguishing this case from federal bank robbery prosecutions where such remand had been required. The court affirmed both the conviction for assault with intent to kill while armed and the conviction for carrying a pistol without a license, with sentences running concurrently as originally ordered.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a conviction for a lesser included offense must be vacated when a defendant is also convicted of the greater offense
Whether remand for resentencing is required following vacation of a lesser included offense conviction
Application of precedent from recent appellate decisions to similar fact patterns

Procedural posture

The appellant appealed a District Court conviction and sentence, which was initially affirmed without opinion, and then filed a petition for rehearing based on intervening appellate precedent.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

PER CUÍtIAM :

We origihally unanimously decided this case by a simple Order affirming the judgment of the District Court without opinion under Local Rule 13(c). The two points raised in Appellant’s Brief and Reply Brief were given careful consideration, the court entertained no doubt as to the correctness of the result reached, and the court had no inclination to expend judicial energies in digging other furrows in well-ploughed fields of law.

Nor did appellant’s vigorous plea for oral argument alter our view that this was a case which could and should be disposed of on briefs.

Now comes the appellant with a “Petition for Rehearing and Suggestion for Rehearing in Banc,” based not on any point raised in his original Brief, but by a motion calling our attention to two recent decisions of this court.

Appellant Wimbush was here convicted of (1) assault with intent to kill while armed with a dangerous weapon (22 D.C.Code § 502)- — for which he was sentenced to serve three to nine years; (2) assault with a dangerous weapon (22 D.C.Code § 502) — for which he received a two to six-year sentence; and (3) carrying a pistol without a license (22 D.C.Code § 3204) — for which he received one year. All sentences are to be served concurrently.

Appellant now relies on United States v. Hill, 152 U.S.App.D.C. 213, 470 F.2d 361 (1972), and United States v. Benn and Hunt, 155 U.S.App.D.C. --, 476 F.2d 1127 (1972), in each of which a conviction for a lesser included offense was vacated. Appellant particularly cites us to footnote 22 in Benn, which cites the vacation of the lesser included offense conviction in Hill as precedent for the same action in Benn.

Appellant asks that the judgment of conviction be reversed, or alternatively that the conviction for assault with a dangerous weapon be vacated. This was a particularly vicious crime. While couched in advocate’s phraseology, the Government’s opening statement is supported by the record:

Appellant shot a 5-foot 4-inches tall, 138-lb. 19 year-old youth, who was armed with only a chicken sandwich, at least four times with a .38 caliber revolver. One or more of the shots were fired into the victim’s back as he tried to escape. Appellant claimed self-defense .

To avoid any confusion in our precedents, we here take the same action as in United States v. Benn, order the conviction for assault with a dangerous weapon vacated (for which appellant received a 2-6 year sentence). Also as in Benn, in accordance with footnote 24 (not cited by appellant), in the circumstances of this case

We do not find it necessary to remand these cases to the District Court for resentencing on the greater offense. The cases in which we have followed such a procedure have involved convictions under the Federal Bank Robbery Act, 18 U.S.C. § 2113, hence been governed by Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957). United States v. Parker, 143 U.S.App.D.C. 57, 442 F.2d 779 (1971); Bryant v. Unit ed States, 135 U.S.App.D.C. 138, 417 F.2d 555 (1969).

We affirm the conviction of assault with intent to kill while armed with a dangerous weapon (22 D.C.Code § 502) and the three to nine year sentence imposed therefor, and affirm the conviction for carrying a pistol without a license (22 D.C.Code § 3204) and the one-year sentence imposed therefor, the two sentences to run concurrently as the District Court ordered.

So ordered.