Sylvester Atkins, Appellant, v. United States of America, Appellee, 591 F.2d 470 (8th Cir. 1979)

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.