Opinion
No. 325, Docket 27437.
Submitted April 4, 1962.
Decided April 30, 1962.
Louis Soviero, pro se.
Joseph P. Hoey, U.S. Atty., and Jerome C. Ditore, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y., for appellee.
Before CLARK, HINCKS, and FRIENDLY, Circuit Judges.
Defendant pleaded guilty to a count charging him with conspiring with others to rob a bank and to a second count charging him with aiding and abetting the commission of that robbery. He was sentenced to five years' imprisonment under the first count, and eight years' imprisonment under the second count. He now claims that the second sentence must be vacated as double punishment for the same offense. His objection is only to the punishment, since he concedes that he could be convicted of the two offenses. His appeal is therefore frivolous, since the longer sentence can stand; the fact that it was actually the second sentence announced by the court in what was a single proceeding is of no consequence. See Smith v. United States, 9 Cir., 287 F.2d 270, 273-274, certiorari denied 366 U.S. 946, 81 S.Ct. 1676, 6 L.Ed.2d 856. Hence we do not need to consider the government's further contention that the two offenses are not identical. Defendant's separate motion for judgment because of late filing of the government's brief is also denied.
Affirmed.