457 F.2d 797 | 9th Cir. | 1972
UNITED STATES of America, Plaintiff-Appellee,
v.
Jesus DIAZ-ROJAS, Appellant.
No. 71-1677.
United States Court of Appeals,
Ninth Circuit.
March 6, 1972.
Richard S. Henderson, San Diego, Cal., for appellant.
Michael Quinton, Brian E. Michaels, Asst. U. S. Attys., Harry D. Steward, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty. & Chief, Criminal Div., San Diego, Cal., for plaintiff-appellee.
Before CHAMBERS and WRIGHT, Circuit Judges, and BYRNE*, District Judge.
PER CURIAM.
The judgment of conviction in this marijuana smuggling (plus receiving, concealing and facilitating) case is affirmed.
The district court could and did properly find that the search was consented to by all of the interested parties.
The lesser included offense point has no merit. United States v. Johnston, 440 F.2d 389 (9 Cir. 1971).
The defendant-appellant can present his point on sentencing by a motion in the trial court under Rule 35, F.R.Cr.P. The mandate will issue now.
The Honorable William M. Byrne, Senior District Judge, Central District of California, sitting by designation