Appellant, on September 27, 1968, was arrested, in his automobile, at a border inspection station as he attempted to enter the United States from Mexico with approximately 40 pounds of marihuana in his possession. He was indicted on *149 two counts: (I) a violation of 21 U.S.C. § 176a (smuggling) and (II) a violation of 26 U.S.C. § 4744(a) (the marihuana stamp tax). Plea bargaining resulted in the government’s dropping the jj. 17.6a charge in exchange for Weber’s plea of guilty to the tax violation. * On October 28, 1968, Weber’s guilty plea was-accepted and Count I dismissed. On June 26, 1969, appellant filed a 28 U.S.C'. § 2255 motion to vacate the sentence. His motion was denied October 8, 1969, the trial judge specifically finding that the motion' and the files and records of the case conclusively demonstrated that appellant wa's entitled to no relief.
The issues presented are (1) whether Leary v. United States,
(1) In United States v. Scott,
(2) Both
Leary
and
Scott
hold that the Fifth Amendment, if asserted, is
a
■ complete defense, unless that defense had been waived. Generally, a Fifth Amendment defense is waived by a plea of-guilty. McCarthy v. United States,
, Additionally, in United States v. Ingman,
supra,
this court held that there was no waiver of the Fifth Amendment -defense to § 4744(a) in a case where the defendant failed to assert such a . defense at his trial, even though the "trial was held
subsequent
to the decisions in Marchetti v. United States,
Aside from the fact that Brady v. United States,
In Meadows, a guilty plea was entered January 20, 1966, over two years before the decisions in the Marchetti group. Those decisions were not available to Leary at the time of his trial, nor were they available to Meadows at the time of the entry of his plea of guilty. Inasmuch as neither Meadows nor Leary had the advantage of those cases, it requires no stretch of the imagination to hold that neither should have anticipated the Leary decision. But Weber’s guilty plea was entered on October 28, 1968, some eight months after Marchetti, Grosso and Haynes were decided. Thus, his case is readily distinguishable from Meadows in that he had ample reason to foresee the Leary decision.
In Ingman, the court found no waiver despite the fact that the Marchetti trilogy had been decided prior to Ingman’s trial. However, that case involved the failure to raise the Fifth Amendment defense at trial, rather than a plea of guilty as is present here. In Ingman, the court reasoned that since the defendant had gone to court in order to avoid conviction, “The only imaginable explanation for Ingman’s failure to raise the defense, either at trial or on appeal, is that he believed it was not available to him, or was ignorant of it.” Ingman, supra, p. 975. There would be no strategic or other basis, aside from ignorance, for a defendant’s failure to raise a complete defense at trial. Thus, in Ingman the presumed waiver by silence yielded to the more logical presumption that the defendant in fact did not know of the existence of the defense.
Here, however, there exists a strong inference that the defense was not raised for reasons other than ignorance of its existence. The record shows that Weber entered his guilty plea to the § 4744(a) charge pursuant to a plea bargaining agreement which called for the dismissal of a charge of smuggling marihuana in violation of 21 U.S.C. § 176a. The latter carries a penalty of from 5 to 20 years, without the possibility of either a suspended sentence or probation, whereas the former carries the lesser penalty of from 2 to 10 years and probation is possible. Thus, we cannot conclude that ignorance was the only possible explanation for Weber’s failure to assert his Fifth Amendment defense to the § 4744 (a) charge as was done in Ingman 2
Appellant’s case can be further distinguished from Ingman on the basis that he entered a plea of guilty, whereas Ingman contested his guilt at trial. A plea of guilty is regarded as an affirmative waiver of the Fifth Amendment’s protection, as distinguished from the passive waiver arising from mere silence at trial. Both Leary and Scott take notice of this distinction. This is not a distinction without a difference, for where a defendant goes to trial in order to establish his innocence his failure to raise a complete defense militates against a presumption that he knew the defense was available, whereas when a defendant pleads guilty subsequent to plea bargaining, under which the most offensive count is dismissed, his failure to assert the same defense does not lead to the conclusion that he was unaware of its availability. He may well be aware of his rights, having waived them in order to avoid prosecution on the more serious of the two counts.
In these circumstances, we hold that appellant, by his plea of guilty, waived *151 his right to a trial before a jury or a judge. His act of entering the plea, of guilty was knowingly and intelligently done with sufficient awareness of the • relevant circumstances and all of , the likely consequences. On this record, we are required to apply Justice White’s views so ably expressed in Brady that “ * * * a voluntary plea -of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.”
Affirmed.
Notes
He was represented by an attorney.
. The reasoning of the Supreme Court in Haynes, in its treatment of the firearms registration law, is similar to that employed by this court in United States v. Scott concerning § 4744(a). Each found that the statute concerned was not unconstitutional on its face, but that the Fifth’ Amendment, if asserted, afforded a complete defense to prosecution.
. The record indicates that appellant may well have had powerful motivation to avoid prosecution under § 176a since he was apprehended while crossing the border into the United States with 40 pounds of marihuana in his possession. Under these circumstances, the government would have had no need to rely upon the § 176a presumption, invalidated in Leary. Appellant was sentenced, on October 26, 1968, as a youth offender pursuant to the enlightened provisions of the Youth Corrections Act, 18 U.S.C. § 5010(b). The provisions of this Act regarding suspension of sentence and probation are not available to one convicted under 21 U.S.C. § 176a.