Appeal from the United States District Court for the Eastern District of Illinois, Benton Division. No. 76-Cr-13 -- William G. Juergens, Judge.
Before Pell, Sprecher and Wood, Circuit Judges.
This is an appeal from the denial of a motion for reduction of sentence. We affirm.
On August 31, 1976, Henry Lee Fleming and two others were indicted by the Grand Jury sitting for the Eastern, now Southern, District of Illinois. The three-count indictment charged Fleming and his co-defendants with aggravated bank robbery in violation of 18 U.S.C. § 2113(d), the killing of a person while attempting to avoid apprehension for the robbery in violation of 18 U.S.C. § 2113(e), and conspiracy to commit bank robbery in violation of 18 U.S.C. § 371.
On November 18, 1976, following a three-day trial, Fleming and his co-defendants were convicted on all three counts of the indictment. They received identical consecutive sentences of 25 years for the robbery, 200 years for the killing, and five years for the conspiracy.
All three of the defendants jointly appealed their convictions to this court, which affirmed as to Fleming and one of the co-defendants but reversed as to the other. United States v. Fleming, 594 F.2d 598 (7th Cir. 1979). Although the defendants had not challenged their sentences as excessive, then Chief Judge Fairchild wrote in a footnote to the court's opinion:
This court is inclined to disfavor sentences for a fixed number of years which are wholly unrealistic and truly beyond the power or discretion of the sentencing court. No one raised any objection on this ground and we do not deal with it.
Fleming subsequently sought certiorari to the Supreme Court but was denied on June 11, 1979. 442 U.S. 931, 99 S. Ct. 2863, 61 L. Ed. 2d 299 (1979).
Returning to the district court, Fleming filed a motion for reduction of sentence, pursuant to Rule 35 of the Federal Rules of Criminal Procedure, on July 18, 1979. In support of his motion, Fleming referred the district court to the comment concerning his sentence which had appeared in this court's earlier opinion. He also claimed that the sentence imposed by the court was inconsistent with the spirit of our system of criminal justice in that it deprived him of all hope of eventual release and robbed him of any incentive for improvement.
Noting that it was aware of this court's comment concerning his sentence, the district judge nevertheless denied Fleming's motion. He stated:
The seriousness of the crimes and the dastardly, cruel, inhuman and malicious nature thereof are such that petitioner should not be released back into society as it is the opinion of this court that the petitioner can never be rehabilitated. It was and is the Court's intent, as recited by defendant, " * * * to ...