UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
March 20, 1979
CHARLES EDWARD MARTIN, PETITIONER-APPELLANT,
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE.
Appeal from the United States District Court for the Eastern District of New York.
Present: HONORABLE IRVING R. KAUFMAN, Chief Judge.
HONORABLE MURRAY I. GURFEIN, Circuit Judge.
HONORABLE JACOB MISHLER, District Judge, sitting by designation.
This cause came on to be heard on the transcript of record from the United States District Court for the Eastern District of New York, and was submitted.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the order of said District Court be and it hereby is affirmed.
1. Since it is well established that the substantive crime of bank robbery is separate and distinct from the offense of conspiracy to commit that crime, it was not improper for Judge Bartels to sentence Martin separately for his violations of 18 U.S.C. § 2113(d) and 18 U.S.C. § 371. See, United States v. Vasquez, 504 F.2d 555 (5th Cir. 1975); United States v. Welty, 426 F.2d 615, 619 n.15 (3d Cir. 1970).
2. Assuming that Martin's presentence report erroneously stated that the cache of armaments discovered in his apartment included a machine gun, such an error was not material when the district judge stated that he would have imposed the same sentence in any event because of the seriousness of the offense and the defendant's prior criminal record. Ferranto v. United States, 507 F.2d 408, 409 (2d Cir. 1974) (per curiam). See United States v. Needles, 472 F.2d 809, 816 (2d Cir. 1970). Nor was it necessary for Judge Bartels to hold an evidentiary hearing before ruling as he did. Id.
3. Assuming arguendo that the alleged misinformation in his presentence report will, as Martin contends, affect the future decisions of the Parole Commission, it is nevertheless clear that the sentencing court does not have authority to revise a lawful sentence solely for this reason. See Dioguardi v. United States, 587 F.2d 572 (2d Cir. 1978).
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