United States v. Ignacio Estrada Olvera

488 F.2d 607

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 5, 1974
• Docket: 73-2712
• Status: Published

Opinion

PER CURIAM:

The appellant was charged with possession of amphetamine, in violation of the Assimilative Crimes Act, 18 U.S.C. A. § 13, which made applicable the provisions of Art. 726d, Vernon’s Ann.Penal Code of Texas. He entered a plea of guilty and was sentenced to two years confinement.

There is a federal statute, 21 U.S.C.A. § 844(a), which is applicable to the offense. Violation of that statute is only a misdemeanor, and the maximum eon- finement under it is one year. The government concedes that the federal statute is controlling rather than the Assim-ilative Crimes Act and the Texas statute, violation of which is a felony.

The sentence must be vacated and the cause remanded for the entry of a new judgment imposing sentence under the federal statute. Hockenberry v. United States, 422 F.2d 171 (CA9, 1970); Dunaway v. United States, 170 F.2d 11 (CA10, 1948). Cf. Kniess v. United States, 413 F.2d 752 (CA9, 1969); Moorman v. United States, 389 F.2d 27 (CA5, 1968).

There is no merit to appellant’s other claims.

Vacated and remanded.