Fred Patrick Meyers, Appellant, v. United States of America, Appellee, 388 F.2d 307 (9th Cir. 1968)

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US Court of Appeals for the Ninth Circuit - 388 F.2d 307 (9th Cir. 1968) January 22, 1968

Russell E. Parsons, David C. Marcus, Los Angeles, Cal., for appellant.

William Gargaro, Jr. (argued), William Mathew Byrne, Jr., U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Chief, Criminal Division, Michael D. Nasatir, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES and KOELSCH, Circuit Judges, and BELLONI,*  District Judge.

PER CURIAM:


Appellant was indicted and convicted on various counts covering the possession, concealing and sale of heroin and marijuana.

The sole question on this appeal is procedural: namely, should appellant have been sentenced for the sale and concealment of the narcotics under 21 U.S.C. § 174, rather than 18 U.S.C. § 4251, et seq. There is no merit in appellant's contention by the precise terms of the statute. Only "eligible offenders" are subject to the discretionary action of the trial judge. 18 U.S.C. § 4252. Further, the appellant was not an "eligible person" toward whom any discretion could be exercised by the terms of 18 U.S.C. § 4251(f) (4), which excludes persons convicted of two or more felonies. Here it was proved that appellant had been convicted of three felonies.

The judgment of conviction is affirmed.

 *

Hon. Robert C. Belloni, United States District Judge, Portland, Oregon, sitting by designation