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UNITED STATES v. DOWNING

July 1, 1982

UNITED STATES OF AMERICA
v.
LOWELL R. DOWNING



The opinion of the court was delivered by: MARSH

 The defendant, Lowell R. Downing, on June 3, 1982, filed a Motion to Vacate Sentence because the presentence report "was not accurate" on November 17, 1978, "the date the trial judge read the report." The motion will be denied.

 Downing was convicted on an indictment charging him and co-defendant, Robert J. Solomon, with possession of cocaine with intent to distribute it.

 Both Downing and Solomon pleaded guilty on June 27, 1978. A presentence report as to Downing was ordered.

 In October, 1978, Downing withdrew his plea. He was tried to a jury and was found guilty.

 Following the verdict, the presentence report, prepared by the probation officer dated September 8, 1978 was read by the court, and on November 17, 1978, the defendant was sentenced to 8 years imprisonment, fined $2,000, and a special parole term of 3 years was imposed.

 Following the sentence, the defendant appealed to the Court of Appeals at 615 F.2d 1354 (3d Cir. 1980); filed a motion to vacate sentence on March 12, 1980; filed a motion to reduce sentence on June 12, 1980; filed an appeal from the order denying the motion to vacate to the Court of Appeals at 672 F.2d 905 (3d Cir. 1981); sought certiorari to the Supreme Court of the United States at 455 U.S. 950, 102 S. Ct. 1452, 71 L. Ed. 2d 664 (1982); and filed a motion to vacate or reduce sentence on March 17, 1982. He was not successful in any of these proceedings.

 Included in the presentence report was the following information:

 Prior Record: Juvenile -- none.

 Adult: Age 30. 12/7/77.

 Offense: Possession of marijuana.

 Place: Pittsburgh, Pennsylvania.

 Disposition: Sentence pending.

 According to the defendant's motion:

 
"7. The information in the report was not accurate when read. On September 18, 1978 the state court judge entered a judgment of probation without verdict ...

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