Everett v. United States, 12485.

• Decision Date: 28 November 1955
• Docket Number: No. 12485.,12485.
• Citation: 227 F.2d 457
• Parties: Harry Lee EVERETT, alias Harry Lackey, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

227 F.2d 457 (1955)

Harry Lee EVERETT, alias Harry Lackey, Appellant, v. UNITED STATES of America, Appellee.

No. 12485.

United States Court of Appeals Sixth Circuit.

November 28, 1955.

Harry Lee Everett, pro se.

Richard H. Pennington, Cincinnati, Ohio (Hugh K. Martin, U. S. Atty., George S. Heitzler, Asst. U. S. Atty., Cincinnati, Ohio, on the brief), for appellee.

Before SIMONS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

Harry Lee Everett appeals from denial of a motion to correct sentence. He was found guilty and sentenced on each of three counts of an indictment for violation of the Narcotics Act, Title 21 U.S.C.A. § 174. Appellant was a first offender. The offenses charged took place on three different days and the district court sentenced appellant to the custody of the Attorney General for a period of five years on each of the three counts, the sentence on Count 2 to begin at the expiration of the sentence on Count 1, and the sentence on Count 3 to begin at the expiration of the sentence on Count 2. It was also provided that the sentence on Count 3 be suspended and appellant placed on probation for said period, five years.

Appellant contends that inasmuch as he was a first offender, the sentences on the various counts aggregating ten years of imprisonment were excessive and in violation of the applicable statute. He bases his contention on claimed limitations upon sentences to imprisonment contained in the so-called Boggs Act, Title 26 U.S.C.A. § 2553 et seq. This Act provides imprisonment of not more than five years for a first offender. Appellant was not, however, sentenced under the Boggs Act, but under Title 21 U.S.C.A. § 174. This court has heretofore held that a violation of Title 21 U.S.C.A. § 174, is an entirely separate offense from that created by Title 26 U.S.C.A. § 2553. McDade v. United States, 6 Cir., 206 F.2d 494. As far as this case goes, however, our conclusion would be the same whether appellant were sentenced under Title 21 U.S. C.A. § 174, as was the case, or under the Boggs Act, Title 26 U.S.C.A. § 2553.

Title 21 U.S.C.A. § 174, provides that whoever "fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported contrary to law, * * * shall be fined not more than $2,000 and imprisoned not less than two or more than five years. * * *" It is further provided that where a person who, after having been convicted under the Narcotics Act, again violates it, he shall, upon conviction of such second offense, be fined not more than $2,000 and imprisoned in a Federal penitentiary for not less than five years or more than ten years, whenever the fact of such previous conviction is established in the manner prescribed in the statute; and it is further provided that a person who, after having been two times convicted of violation of the Act, again violates it, for a third time, he shall, upon conviction of such third offense, or any offense subsequent thereto, be fined not more than $2,000 and imprisoned not less than ten or more than twenty years, whenever the fact of such previous convictions is established in the manner prescribed in the statute.

Although appellant was a first offender within the language of the statute, he had been convicted on three counts for three different offenses committed on different days. Sentences under different counts charging distinct offenses may, in the discretion of the trial court, be made to run consecutively. Parmagini v. United States, 9 Cir., 42 F.2d 721. There is no question that the offenses charged in the indictment in this case were different offenses. They were committed on different days; and the test of identity of offenses is whether the same evidence is required to sustain them. Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153; Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505; Newman v. United States, 6 Cir., 212 F.2d 450. Here, different evidence was required to prove each of the three offenses.

However, it might appear, on first consideration, as argued by appellant, that Congress had intended that a first offender under the Narcotics law could not receive a sentence of more than five years, and that a conviction on additional counts of an indictment charging other and different offenses against the Narcotics law could not carry additional sentences to run consecutively aggregating more than five years of imprisonment. The statutory classification of sentences for first, second, and third offenders conceivably lends color to the idea.

An examination of the law as it existed before the enactment of the statutes providing for increasing sentences for second and third offenders, and a consideration of the legislative history of those statutes, serve to dispel such an impression.

Under the former statutes, it was held that violators of the Narcotics Act were subject to sentences on each of several counts — such as sales of narcotics on different days — and that such sentences might properly run consecutively. United States v. Daugherty, 269 U.S. 360, 46 S.Ct. 156, 70 L.Ed. 309; Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306.

The purpose of the sections of the statutes relating to increased sentences for second and third offenders "is to stamp out the existence of narcotics in this country except for legitimate medical purposes." Pitta v. United States, 9 Cir., 164 F.2d 601, 602. The House Committee on Ways and Means, to whom the bill enacting present Title 21 U.S.C.A. § 174, was referred, reported that the intent of Congress was to provide additional punishment for second, third, and subsequent offenses for selling, importing, or exporting, or conspiring to sell, import, or export narcotic drugs; House Report No. 254, March 6, 1945, U. S. Code Congressional Service, 79th Congress, Second Session 1946, p. 1083. With the Congressional purpose, as expressed in the statute, to increase the penalties imposed on persons violating the Narcotics laws over those penalties previously in effect — including consecutive sentences of imprisonment on different counts of an indictment — it cannot be...