509 U.S. 602 (1993)
The appellant was convicted by a jury on two counts of an indictment charging him with bank robbery in violation of 18 U.S.C. § 2113(a) and (d).1 He was sentenced to twenty-five years imprisonment.2
Count One charged that Austin, by force and violence and by intimidation, took from the person and presence of a bank teller approximately $10,000.00.3 Count Two charged that in committing the offense he assaulted the teller and put her in jeopardy by the use of a dangerous weapon, to-wit, a pistol.4
The sole question presented on this appeal is whether the lesser offense proscribed by 18 U.S.C. § 2113(a) is included in the offense proscribed by 18 U.S.C. § 2113(d), so that a defendant may not be convicted and punished for both.5 The statute defines the basic robbery offense in subsection (a) and provides an enhanced penalty in subsection (d) for committing any offense defined in subsections (a), (b), and (c) by assaulting a person or putting a life in jeopardy with a dangerous weapon or device.6
The Government argued that the two counts state separate and distinct offenses for which the defendant may be convicted and punished.7 It relied on the principle that a single transaction may give rise to a violation of more than one statute as in Blockburger v. United States and Gore v. United States.8 The court noted that the question is one of legislative intent.9
The court cited Prince v. United States, where the Supreme Court held that a defendant could not be validly sentenced on both a count charging entry into a bank with intent to rob and a count charging robbery.10 The Government sought to distinguish Prince on the ground that the two offenses there involved were proscribed by separate subsections of the statute, while here both offenses are embraced within a single subsection, namely (d).11 The court rejected this distinction.
The plain meaning of the language in (d) is that the use of a dangerous weapon must occur in the course of the commission of one of the offenses defined in the earlier subsections.12 Subsection (d) does not define a separate and distinct offense but provides for an increased penalty.13 This interpretation was confirmed by the legislative history of the statute.14 The original bank robbery statute was enacted in 1934.15 It contained what is now subsection (a) and a subsection (b) which is now (d).16 House reports from 1934 and 1935 treated the use of a dangerous weapon as an aggravation of the offense of taking by force and violence or by intimidation.17 The statute was amended in 1948 to its present form.18 The Reviser's Note stated that the section consolidates the earlier statutes without change of substance.19 The court concluded that Congress at no time intended to provide for cumulative penalties for the single offense of bank robbery.20
The judgment of the District Court is reversed and the case is remanded with directions to vacate the conviction and sentence on Count One of the indictment.21
Whether the lesser offense proscribed by 18 U.S.C. § 2113(a) is included in the offense proscribed by 18 U.S.C. § 2113(d), so that a defendant may not be convicted and punished for both?22
The question is one of legislative intent. When a single transaction gives rise to violations of multiple statutes, cumulative punishment is not permitted if Congress did not intend it, as when subsection (d) provides an enhanced penalty for committing the basic offense defined in subsection (a) by use of a dangerous weapon rather than defining a separate offense.23
Yes. The plain meaning of the language in (d) is that the use of a dangerous weapon or the assault must occur in the course of the commission of one of the offenses defined in the earlier subsections.24 The later subsection does not define a separate and distinct offense, but provides for an increased penalty where the offense defined in the earlier subsection is committed by the use of a dangerous weapon.25 The offense described in (d) necessarily includes the offense described in (a).26
This interpretation is confirmed by the legislative history of the statute, as the original 1934 statute and 1935 amendment treated the use of a dangerous weapon as an aggravation of the basic offense, and the 1948 revision consolidated the statutes without change of substance.27
Related opinions on this issue
Senior Circuit Judge Bastian concurred in the opinion and the remand.31 He wished to add the following few words for emphasis.32 No one should equate our action in this case with an intention to take a step in the direction of holding that we have the power of review of sentences imposed by the District Court.33
As Judge Leventhal points out, appellate courts have no power to alter a lawful sentence in the absence of express authority.34 Judge Leventhal has asked me to note that he endorses both the content and form of this concurrence-for-emphasis.35
Circuit Judge Danaher dissented.36 He disagreed that the trial court erred by not granting the motion for acquittal on the first-degree murder charge.37 In his view the Government's evidence was sufficient to warrant submission to the jury of the issue of premeditation and deliberation.38
The trial judge properly submitted the issues to the jury.39 On the same evidence the majority found a fair adjudication of guilt on all elements of murder in the second degree, but Danaher concluded the evidence supported first-degree murder.40