United States v. Herbert David Neff

LAY, Circuit Judge

(concurring).

I concur in Judge Stephenson’s well written opinion, however, I would not endorse the language concerning the applicability of the concurrent sentence rule if this case were presented to us on direct appeal. In Entrekin v. United States, 508 F.2d 1328, 1330 (8th Cir. 1974), a postconviction case, we stated:

In the future, absent direction from the United States Supreme Court, we do not propose to consider collateral challenges to concurrent sentences that do not affect the length of the sentence to be served.

This statement was limited to a collateral attack on a concurrent sentence, and as we indicated by prefacing that language with a short statement from Benton v. Maryland, 395 U.S. 784, 793 n. 11, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969):

A stronger case for total abolition of the concurrent sentence doctrine may well be made in cases on direct appeal, as compared to convictions attacked collaterally by suits for post-conviction relief.

*365In United States v. Belt, 516 F.2d 873, 876 (8th Cir. 1975) a direct appeal, we commented: “We seriously question the efficacy of the concurrent sentence rule where the crimes charged in the various counts are serious and differing in substance.” We relied upon the following language from United States v. Tanner, 471 F.2d 128 (7th Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972):

[T]he Supreme Court’s decision in Benton v. Maryland, 395 U.S. 784 [791, 89 S.Ct. 2056, 23 L.Ed.2d 707] (1969), constitutes a reevaluation of the “concurrent sentencing doctrine.” Benton holds that there is no jurisdictional bar (stemming from the requirement of justiciability) to a consideration of all counts 'under concurrent sentences. The Court points out that an unreviewed count could increase an appellant’s future sentencing under an habitual offender statute, or adversely affect his chances for parole, or be used to impeach his testimony at a future trial. Benton suggests that review is desirable where adverse collateral consequences of this nature may flow from conviction. See Davie v. United States, 447 F.2d 480 (7th Cir. 1971); United States v. Febre, 425 F.2d 107 (2d Cir. 1970), cert. denied, 400 U.S. 849 [91 S.Ct. 40, 27 L.Ed.2d 87] (1971). Since we cannot say that there is no possibility of undesirable collateral consequences attendant upon these convictions, we choose to consider the validity of all the challenged counts.

471 F.2d at 140.