Pursuant to new Rule 18 of the Rules of this court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir., 1969,
This appeal involves an attack upon the imposition of a sentence of five years imprisonment and a denial of probation and parole pursuant to Title 26, Section 7237, 1 United States Code, for possession of marihuana, as cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
The appellant John Drotar was convicted on December 13, 1968, by a plea of guilty in the Southern District of Florida for possession of a quantity of marihuana which he acquired and obtained without paying the tax imposed by 26 U.S.C. Sec. 4741(a), in violation of 26 U.S.C. Sec. 4744(a) (1) and 18 U.S.C. Sec. 2. At the sentence proceedings, Drotar admitted that he had previously been convicted of possession of marihuana in the Southern District of Texas in July, 1966. Drotar was sentenced to a term of 5 years in the custody of the Attorney General, the minimum sentence permissible under 26 U.S.C. Sec. 7237 (a) upon the second conviction for possession.
The appellant makes two contentions: first, that the minimum mandatory sentence of 5 years and the denial of probation and parole imposed in this case *916 as a result of the conviction for possession of marihuana is cruel and unusual punishment violative of the Eighth Amendment to the U. S. Constitution; and, second, that it is unconstitutional under the First Amendment for the federal government to make the possession of marihuana in the privacy of a person’s home a criminal offense.
In support of his first contention, the appellant argues that, according to current scientific knowledge, marihuana is non-addictive and is less harmful than cigarettes or alcohol, and that, in the light of this knowledge, a minimum mandatory sentence of 5 years and a denial of probation and parole for the possession of marihuana is excessive and constitutes cruel and unusual punishment. Ordinarily, a court of appeals may not review the imposition of a sentence by a trial court which is within the maximum and minimum terms provided by the sentencing statute, Rogers v. United States, 5 Cir., 1962,
In any event, the progress of scientific research in the whole area of narcotics and drug abuse, during the eleven years since the first enactment of the relevant statute, § 7237, under review, has not resulted in the establishment of scientific knowledge .to the extent that would enable us to nullify § 7237(a) and (b), supra, on constitutional grounds, even if we deemed it appropriate to do so. At 848.
The past two years have not produced any conclusive scientific evidence to undermine the position taken in Ward.
The appellant also argues that even if marihuana is addictive and harmful, Section 7237 constitutes cruel and unusual punishment because it imposes criminal sanctions on acts which, are incident to the
status of
being a drug addict, relying on Robinson v. California,
This statute, [Section 11721, California Health & Safety Code] therefore, is not one which punishes a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration. It is not a law which even purports to provide or require medical treatment. Rather, we deal with a statute which makes the “status” of narcotic addiction a criminal offense, for which the offender may be prosecuted “at any time before he reforms”.370 U.S., at 666 ,82 S.Ct., at 1420 ,8 L.Ed.2d at 762 . (Emphasis supplied).
The appellant’s contention that Section 7237 imposes cruel and unusual punishment in violation of the Eighth Amendment is therefore without merit, and, as was pointed out in United States v. Ward, supra,
• [4] In contending that it is violative of the First Amendment to the United States Constitution to make possession of marihuana in the privacy of one’s own home a criminal offense, the appellant relies on the recent case of Stanley v. Georgia,
What we have said in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms, or stolen goods, a crime. Our holding in the present case turns upon the Georgia statute’s infríngement of fundamental liberties protected by the First and Fourteenth Amendments. No First Amendment rights are involved in most statutes making mere possession criminal. (Emphasis supplied).
The appellant’s second contention is thus without merit.
The judgment of the district court is hereby
Affirmed.
Notes
. The relevant parts of Section 7237 provide :
(a) Where no specific penalty is otherwise provided. — Whoever commits an offense, or conspires to commit an offense, described in part I or part II of sub-chapter A of chapter 39 for which no specific penalty is otherwise provided, shall be imprisoned not less ' than 2 or more than 10 years and, in addition, may be fined not more than $20,000. For a second offense, the offender shall be imprisoned not less than 5 or more than 20 years and, in addition, may be fined not more than $20,000. For a third or subsequent offense, the offender shall be imprisoned not less than 10 or more than 40 years and, in addition, may be fined not more than $20,000.
(d) No suspension of sentence; no probation; etc. — Upon conviction — * *
(2) of any offense the penalty for which is provided in subsection (a) of this section, if it is the offender’s second or subsequent offense,
the imposition or execution of sentence shall not be suspended, probation shall not be granted and in the case of a violation of a law relating to narcotic drugs, section 4202 of title 18, United States Code, and the Act of July 15, 1932 (47 Stat. 696; D.C.Code 24-201 and following), as amended, shall not apply.