Sylvester Atkins v. United States

Eighth Circuit

Sylvester Atkins v. United States

591 F.2d 470, 1979 U.S. App. LEXIS 17204

CourtCourt of Appeals for the Eighth Circuit

DecidedJanuary 31, 1979

Docket78-1794

StatusPublished

This text of 591 F.2d 470 (Sylvester Atkins v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Sylvester Atkins v. United States, 591 F.2d 470, 1979 U.S. App. LEXIS 17204 (8th Cir. 1979).

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Opinion

PER CURIAM.

Sylvester Atkins was convicted of two counts of distribution of heroin in violation of 21 U.S.C. § 841(a)(1) and was sentenced to serve consecutive prison terms of 12 years on each count and consecutive special parole terms of three years each. His conviction was affirmed by this court, United States v. Atkins, 487 F.2d 257 (8th Cir. 1973). On May 8, 1975, Atkins filed a motion for a new trial on the ground of newly discovered evidence. After an evidentiary hearing the motion was denied. The order denying a new trial was affirmed by this court, United States v. Atkins, 545 F.2d 1153 (8th Cir. 1976).

On September 29, 1978, Atkins filed this § 2255 motion alleging that his conviction and sentence on two counts violated the double jeopardy clause of the fifth amendment, because he committed only a single offense. The district court, 462 F.Supp. 618, rejected his contention on the basis that he committed two separate offenses in making two distributions of heroin, one on August 2,1972, and one on August 16,1972.

We affirm. The transactions underlying the two counts of the indictment were separate and distinct. See United States v. Noel, 490 F.2d 89, 90 (6th Cir. 1974); United States v. Whitlock, 442 F.2d 1061, 1063 (8th Cir. 1971). Thus, there was no violation of the double jeopardy clause.

Judgment affirmed.

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PER CURIAM.

Sylvester Atkins was convicted of two counts of distribution of heroin in violation of 21 U.S.C. § 841(a)(1) and was sentenced to serve consecutive prison terms of 12 years on each count and consecutive special parole terms of three years each. His conviction was affirmed by this court, United States v. Atkins, 487 F.2d 257 (8th Cir. 1973). On May 8, 1975, Atkins filed a motion for a new trial on the ground of newly discovered evidence. After an evidentiary hearing the motion was denied. The order denying a new trial was affirmed by this court, United States v. Atkins, 545 F.2d 1153 (8th Cir. 1976).

On September 29, 1978, Atkins filed this § 2255 motion alleging that his conviction and sentence on two counts violated the double jeopardy clause of the fifth amendment, because he committed only a single offense. The district court, 462 F.Supp. 618, rejected his contention on the basis that he committed two separate offenses in making two distributions of heroin, one on August 2,1972, and one on August 16,1972.

We affirm. The transactions underlying the two counts of the indictment were separate and distinct. See United States v. Noel, 490 F.2d 89, 90 (6th Cir. 1974); United States v. Whitlock, 442 F.2d 1061, 1063 (8th Cir. 1971). Thus, there was no violation of the double jeopardy clause.

Judgment affirmed.

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591 F.2d 470, 1979 U.S. App. LEXIS 17204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sylvester-atkins-v-united-states-ca8-1979.

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