Henry Thomas v. United States

431 F.2d 940

Opinions

PER CURIAM:

This appeal is taken from an order of the district court denying the motion of a federal convict to vacate sentence pursuant to 28 U.S.C. § 2255. We affirm.

On March 26, 1951, appellant was convicted of obtaining marijuana without paying the transfer tax, a violation of 26 U.S.C. § 2593(a), now 26 U.S.C. § 4744 (a). He was sentenced to 18 months imprisonment which has been served.

On January 27, 1966, appellant was convicted by a jury on a two-count indictment of selling narcotics not in or from the original stamped package and of selling narcotics without a written order form from the buyer, violations of 26 U.S.C. §§ 4704(a) and 4705(a). He was sentenced on February 2, 1966, as a second offender to concurrent terms of 5 years and 10 years.

In his motion to vacate sentence, appellant contends that his 1951 conviction was unconstitutional under Leary v. United States, 1969, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, and United States v. Covington, 1969, 395 U.S. 57, 89 S.Ct. , 23 L.Ed.2d 94, and was therefore an invalid basis for a second offender sentence. The district court denied relief without an evidentiary hearing.

Selling narcotics not in or from the original stamped package is punishable by imprisonment for 2 to 10 years for a first offender and 5 to 20 years for a second offender under 26 U.S.C. § 7237(a). Appellant was sentenced to five years imprisonment. Selling narcotics without a written order is punishable by 5 to 20 years imprisonment for a first offender and 10 to 40 years for a second offender under 26 U.S.C. § 7237 (b). Appellant was sentenced to ten years imprisonment on this count. Even if appellant’s first convictions were invalid under Leary, his sentences are well within the maximum provided for a first offender, and as these sentences were made to run concurrently, it is unnecessary to consider the Leary question, as there is no specific detriment to the appellant here. See United States v. Barsaloux, 5 Cir., 1969, 419 F.2d 1299.

The judgment below is

Affirmed.