The opinion of the court was delivered by: COOPER
In this Pro se petition under 28 U.S.C. § 2255, we are confronted with the issue of the retroactivity of important changes in the law of prosecuting and sentencing persons who commit armed bank robbery. In Simpson v. United States, 435 U.S. 6, 98 S. Ct. 909, 55 L. Ed. 2d 70 (1978), the United States Supreme Court held that a defendant may not be sentenced under both 18 U.S.C. § 2113(d)
(armed bank robbery) and 18 U.S.C. § 924(c)
(use of a firearm to commit a felony). In Grimes v. United States, 607 F.2d 6, No. 79-2007 (2d Cir. Sept. 6, 1979), the Court of Appeals for the Second Circuit held that a court may not enter separate judgments of conviction for persons convicted of violating 18 U.S.C. § 2113(a)
and § 2113(d), nor may the Government prosecute a person under 18 U.S.C. § 924(c) where the underlying felony, armed bank robbery, is prosecutable under 18 U.S.C. § 2113(d).
On December 3, 1975, several years prior to Simpson and Grimes, we sentenced petitioner to 15 years imprisonment under § 2113(d) and 10 years imprisonment under § 924(c) for a total of 25 years imprisonment. The sentence was structured in this manner in accordance with the express mandate of § 924(c) which requires that a sentence imposed thereunder is to run consecutively with the sentence on the underlying felony, here § 2113(d). Petitioner's sentence and his convictions under 18 U.S.C. §§ 2113(a), 2113(d), and 924(c) are proper under the law as it stood prior to Simpson and Grimes. For the reasons assigned below, we decline to apply either Simpson or Grimes
retrospectively to the instant application.
On June 23, 1975, petitioner Marvin P. McClain, Mildred Skeete and Leroy McClain robbed a branch of the Chase Manhattan Bank in New York City. During the robbery, petitioner shot and wounded a bank guard who became a quadraplegic and subsequently died. Petitioner and Skeete were apprehended shortly thereafter and indicted on October 3, 1975.
On October 14, 1975, petitioner pleaded guilty to the three counts of the indictment in which he was named.
He was sentenced on December 3, 1975 to a total of twenty-five years imprisonment.
Count 1 of the indictment charged petitioner and co-bank robbers with committing a bank robbery in violation of 18 U.S.C. § 2113(a). This count carried a maximum penalty of 20 years imprisonment and a $ 5,000 fine. Count 2 charged petitioner and his co-defendants with violating 18 U.S.C. § 2113(d), a subsection which provides for enhancement of the penalty to a maximum penalty of 25 years and a $ 10,000 fine where a defendant assaults a person or "puts in jeopardy the life of any person by the use of a dangerous weapon or device" during the course of the robbery. Count 3 charged petitioner, alone, with violating 18 U.S.C. § 924(c)(1) which provides for a penalty of not less than 1 year and no more than 10 years imprisonment where an accused uses a firearm in the commission of a federal felony. Under § 924(c), the penalty is mandated to run consecutively with the sentence on the underlying felony. As required by Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370 (1957), Counts 1 and 2 were merged for the purposes of sentencing. Thus, at the time petitioner pleaded guilty, he faced a maximum penalty of 35 years imprisonment and a $ 10,000 fine.
We were fully cognizant of the possible 35 year sentence that petitioner faced and so stated at the time of the plea:
THE COURT: All right. I told your lawyer that I would not sentence you to the maximum of 35 years, that I would not exceed 25 years unless I saw good reason.
Over and above what was revealed to me up to this moment, if I should decide on the basis of reading a report about you from the Probation Department that the amount of sentence should exceed 25 years, I will allow you to withdraw your plea of guilty and send you to trial before another judge. Do you get it?
DEFENDANT McCLAIN: Yes, sir.
Transcript, October 14, 1975, p. 37, lines 3-12.
In deciding the appropriate sentence to impose, we inquired extensively into McClain's background and placed on the record the following statement:
THE COURT: . . . I will be glad to tell you the factors and the only factors that I am considering with regard to the defendant as a human being, aside from the act with which we must deal. You know he pled guilty to each of three counts.
DEFENDANT'S LAWYER: Yes, your Honour.
THE COURT: He is thirty-four. You know his prior criminal record. He was even a delinquent child. He got kicked around when he was growing up, and like a lot of children without the benefit of guidance he got himself into drugs and was held to account.
On one occasion he resisted arrest and struck a New York City Police Officer about the eye, causing his injury which required hospital treatment. He violated parole twice. His school record is miserable.
Scholarship, behaviour, attendance poor; low I.Q. Addicted to heroin and cocaine. At the time of his arrest ...