Branch appeals his conviction for possession of marihuana in violation of 21 U.S.C. § 844, a misdemeanor under federal laws. Because of a tip from a reliable informer that appellant possessed “a cеrtain quantity of marihuana or hashish” in his car and had just “ ‘smoked a joint’ . . . with another рerson [the informer],” he was stopped by rangers upon entering Yosemitе National Park. Both his vehicle and person were searched, the latter yielding the marihuana.
The only substantial issue raised contests the legality of the warrantless arrest of Branch. The argument seeks to distinguish an arrest and sеarch for a suspected misdemeanor from an arrest and search for a suspected felony. According to this argument, the informer’s tip was аmbiguous as to whether, under federal law, appellant was committing a felony (possession of marihuana or hashish with intent to distribute, 21 U. S.C. § 841), or a misdemeanor (simple possession, 21 U.S.C. § 844). Turning to the state law of wairantless arrests, see Unitеd States v. DiRe,
Assuming appellant is correct in his premises that section 836 is applicable, and that, for purposes of that section, 21 U.S.C. § 841 defines a “felony” while 21 U.S.C. § 844 defines only a “misdemeanor,” we nonetheless do not agree with his conclusion that the arrest was invalid under section 836(3).
Even if the information reсeived by the officer as to the quantity of controlled substance involved was not sufficient to support an inference of distribution or intent to distribute, thе additional information that appellant had “ ‘smoked a joint’ . . . with another person [the informer]” was. That information brought appellant’s conduсt within the “distribution” ban of 21 U.S.C. § 841(a). See 21 U.S.C. § 802(11).
It was possible that appellant’s conduct might eventually be found to have been only a misdemeanor in view of subsection (b) (4) оf 21 U.S.C. § 841. According to that subsection, “any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall bе treated as provided in subsections (a) and (b) of section 844 of this title.” Thus, if it turned оut that appellant had “distributed” only this one illegal cigarette, that it contained no controlled substance other than marihuana and marihuana derivatives, that appellant had not intended to distribute any more marihuаna, and that he had not been paid, it might eventually appear that he had not “committed a felony” within the meaning of California Penal Code § 836(3). But thе possibility of subsection (b)(4)’s applicability was one of mitigation only. At least absent some affirmative reason apparent at the time of arrest to believe that subsection *957 (b)(4) would apply to appellant’s “distributional” activities, the rangers were entitled to treat him under 21 U.S.C. § 841.
Affirmed.