UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
IGNACIO ESTRADA OLVERA, DEFENDANT-APPELLANT
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The court held that the sentence must be vacated and the cause remanded for resentencing under the applicable federal statute, not the Assimilative Crimes Act and Texas law.
Appellant was charged with possession of amphetamine under the Assimilative Crimes Act and Texas law, which made the offense a felony. A federal statu…
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PER CURIAM:
The appellant was charged with possession of amphetamine, in violation of the Assimilative Crimes Act, 18 U.S.C. A. § 13, which made applicable the provisions of Art. 726d, Vernon’s Ann.Penal Code of Texas. He entered a plea of guilty and was sentenced to two years confinement.
There is a federal statute, 21 U.S.C.A. § 844(a), which is applicable to the offense. Violation of that statute is only a misdemeanor, and the maximum eon- finement under it is one year. The government concedes that the federal statute is controlling rather than the Assim-ilative Crimes Act and the Texas statute, violation of which is a felony.
The sentence must be vacated and the cause remanded for the entry of a new judgment imposing sentence under the federal statute. Hockenberry v. United States, 422 F. 2d 171 (CA9, 1970); Dunaway v. United States, 170 F. 2d 11 (CA10, 1948). Cf. Kniess v. United States, 413 F. 2d 752 (CA9, 1969); Moorman v. United States, 389 F. 2d 27 (CA5, 1968).
There is no merit to appellant’s other claims.
Vacated and remanded.
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United States v. Blue, 722 F.2d 383 (8th Cir. 1983)
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Isbell Enters., Inc. v. Citizens Cas. Co. OF NEW York, 431 F.2d 409 (5th Cir. 1970)
- Hockenberry v. United States, 422 F.2d 171 (9th Cir. 1970)
- Kniess v. United States, 413 F.2d 752 (9th Cir. 1969)
- Dunaway v. United States, 170 F.2d 11 (10th Cir. 1948)
- Moorman v. United States, 389 F.2d 27 (5th Cir. 1968)