United States v. Harold Leroy Lewis
227 F.2d 524
2d Cir.
1956
Check Treatment

*1 America, UNITED STATES of Appellee, Leroy LEWIS, Appellant. Docket 23393. United States Court of Second Circuit. Argued 4,Oct. 21, 1955.

Decided Nov. of Certiorari Denied Writ 27, 1956. Feb. See 76 S.Ct. 451. pro brief, M. Shotkin Bernard filed

se. Griffin, Gen., Atty. of Colo- Omer Atty. (Duke Gen., Dunbar, W.

rado Deputy Colorado, Hickey, and Frank E.

Atty. Gen., Colorado, with him brief), Black, Dr. on the William Rymer Charles A. A. Barn- Dr. Clark

acle. Toll,

Grant, Toll, Henry Shafroth & Shafroth, Denver, Colo.,

and John F. filed Company.

a brief General Electric George, Colo., Denver, Ora H. filed Henry

brief Tull. Westa, Denver, (John M. R. G. Colo.

Turnquist. Denver, Rovira, and Luis D.

Colo., brief), were with him on the Edison,

Thomas A: Inc. PHILLIPS, HUXMAN,

BRATTON and Judges. Circuit n . CURIAM.

PER appeal from an order is an This for the Dis- District Court States appellant’s dismissing Colorado trict two above-entitled action cause prosecute failure cases An examination trial in the compels conclusion record amply in enter- warranted was trial appealed from. order

Affirmed.

525 years. five more than than two nor less of- provides “For second a also that It fense, fined not shall be the offender imprisoned not $2,000 and more than years” ten five nor more than less than subsequent of- “For third or and that punishment a fine of shall be fense” the imprisonment $2,000 and not more than nor more than less ten not than twenty years. this “For the subdivision, an offender shall be consid- offender, subsequent ered a or second previously be, has case if he the any penalty Leroy Lewis, pro se. been convicted of offense the provided for which is in this subdivision Hartford, Cohen, Atty., U. S. Simon S. or in [certain other sections].” Jr., (Harry Hultgren, U. Conn. counsel), Conn., Boggs Hartford, to the Act amendment Atty., S. Prior appellee. $5,000 the maximum were years imprisonment. fine and There ten ME- and provisions no minimum Judges. LUMBARD, Circuit DINA and tence or for different for sec- subsequent ond or offenders. Judge. LUMBARD, Circuit represented It is defendant, of course well settled that who was counsel, impose the court can and on cumulative sen indictment waived indictment, guilty 28, pleaded tences on each count six of an December to 1953 proof charging necessary support where the him to counts of an information drugs different, Blockburger count each is on v. six with sale of narcotic the July States, 1932, 299, June, United 284 52 U.S. in different occasions 180, August Hartford, S.Ct. opinions 76 L.Ed. 306. our in See also of 1953 Connecti- Pagano, in United States v. now that District cut. He claims the Cir., 1955, 2 power F.2d 682 and no sentence him Court had to 224 Chiarella, 1950, Cir., 25, years States v. 2 January five 184 F. it did on 1954 to 2d 903. imprisonment five each of the on first concurrently run and to two counts to exactly Since that is what the years imprisonment on the sixth count here, ap did defendant’s sentence consecutively. to run clearly pears to be within the The defendant contends the sentencing argues, the Defendant Boggs Act, 21 in 1951 to amend enacted enacting however, Boggs in the Act 174, places a on U.S.C.A. maximum Congress abrogated the rule of the imposed on which be sentence Blockburger respect case to nar a first offender and therefore he could nothing cotics violations. We find in lawfully not have been sentenced more language legis statute or the years imprisonment. five than history argument. support lative this no There words to provides indicate that the 174 that who- 21 U.S.C.A. § year conceals, buys maximum receives, five sentence for knowingly a first ever any knowingly pun is now a limit on offender the total sells, manner or or imposed that can at transportation, ishment one time conceal- facilitates ment, punishment limit any on than a im- rather narcotic or sale single Congress brought States, offense. each If ported into the United or impose such knowing import- chosen to a limit it same to have been had easy law, contrary been do so shall be fined not would ed any imprisoned explicitly. can we Nor derive aid not $2000 more than general aims of from the defendant HARVEY, Fred M. Petitioner, Re- as stated in Senate amendment port Congress, 1st Ses- 82nd Congressional sion, 1951, 1951 Code U.S. COMMISSIONER INTERNAL OF *3 p. Service, 2602: and Administrative REVENUE, Respondent. No. 12400. “The is to bill stringent uni- make more and more States Court of penalties form the imposed upon persons which would be Sixth Circuit. violating Nov. Federal narcotic and marihuana laws. Enactment of more severe vio-

sentences would enable narcotic lators, frequently who addicts are subjected themselves, to be

longer period and ob- of treatment

servation, and would at important effect of

time have the removing participation from active traffic those offenders susceptible

who not be to cor-

rective treatment.” making intention The stringent

more would not served give depriving the courts of

separate separate sentences for offenses. judgment

The of the District Court denying

and its order the motion to judgment modify

amend or

affirmed. Judge (concurring). governing statute, 21 U.S.C. 174 ambiguous amended, seems to me argument to afford some basis for an restriction on maximum applies convictions,

tences merely rather than judge If, to offenses. as the here given might

pointed out, he a sen- years, up

tence accomplishment to 30 there is dubious v expressed intent to make the “more uniform”

and to curtail normal discretion of sentencing judge. IBut have been agree my brothers, constrained to

perhaps doubt, with somewhat more however, that there is not show- vary of such intent the literal language of the statute and cause re- jection of the usual rule. If the stat- again amended, Llewellyn pending Luce, to be A. Washington, ute is C.,D. suggest, proposals petitioner. Llewellyn the law-makers Luce„ up ambiguity. Washington, C., to clear all well wish D. on the brief.