Haynes v. United States, 21540.
| Decision Date | 01 March 1965 |
| Docket Number | No. 21540.,21540. |
| Citation | 339 F.2d 30 |
| Parties | Robert Lee HAYNES, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert Lee Haynes, pro se.
Andrew L. Jefferson, Jr., Asst. U. S. Atty., Ernest Morgan, U. S. Atty., San Antonio, Tex., for appellee.
Before HUTCHESON, RIVES and BROWN, Circuit Judges.
Certiorari Denied March 1, 1965. See 85 S.Ct. 926.
This appeal is from a judgment denying the appellant's motion to correct his sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure, and his motion to vacate and set aside his sentence pursuant to 28 U.S.C. § 2255, and from a judgment denying rehearing.
In October 1962, the appellant was convicted on a two-count indictment. The first count charged him with having knowingly and with intent to defraud the United States received, concealed and facilitated the transportation and concealment of approximately 42 pounds of marihuana when he knew that the marihuana had been imported and brought into the United States contrary to law, a violation of 21 U.S.C. § 176a. The second count charged him with being the transferee of marihuana required to pay the transfer tax imposed by 26 U.S.C. § 4741(a), and with having transported and concealed and facilitated the transportation and concealment of approximately 42 pounds of marihuana without having paid such tax, in violation of 26 U.S.C. § 4744(a).
On the judgment of conviction the district court sentenced the defendant to fifteen years imprisonment under the first count of the indictment and to ten years under the second, the sentences to run concurrently. The judgment of conviction was affirmed by this Court and certiorari denied by the Supreme Court. Haynes v. United States, 5 Cir.1963, 319 F.2d 620, cert. denied, 375 U.S. 885, 84 S.Ct. 161, 11 L.Ed.2d 115.
The appellant contends that his fifteen-year sentence under the first count was excessive by five years in the light of 26 U.S.C. § 7237. By its terms, however, that section applies to offenses "for which no specific penalty is otherwise provided." The maximum penalty provided by 21 U.S.C. § 176a is twenty years for a first offender. The ten-year sentence under the second count was the maximum that could have been imposed under 26 U.S.C. § 4744(a). The sentences were to run concurrently. There is no merit in the appellant's motion to correct his sentence under Rule 35.
Many of the appellant's contentions under his section 2255 motion present questions which might have been raised on direct appeal but which are not available on a section 2255 motion. As said in Killebrew v. United States, 5 Cir.1960, 275 F.2d 308, 309: "Only such basic errors as absence of jurisdiction and denial or infringement of constitutional rights can render the judgment subject to collateral attack." We briefly refer, however, to some of the appellant's contentions.
(1) The indictment was not fatally defective. Count One is almost in the language of the count held sufficient in United States v. Davis, 7 Cir.1959, 272 F.2d 149, 150.
(2) The contention that the appellant was required to incriminate himself by registration and payment of taxes and, hence, that the statutes under which he was convicted are unconstitutional
has been ruled against the appellant. Yee Hem v. United States, 1925, 268 U.S. 178, 183, 45 S.Ct. 470, 69 L.Ed. 904; Claypole v. United States, 9 Cir.1960, 280 F.2d 768, 771; Caudillo v. United States, 9 Cir.1958, 253 F.2d 513, 515.
(3) The appellant claims that he was not allowed to subpoena certain witnesses in his favor from Mexico. On his criminal trial the appellant was represented by an attorney of his own choice and he was so represented on his appeal to this Court. If the appellant was wrongfully refused subpoenas for witnesses, that point should have been raised on direct appeal and is not available on a section 2255 motion.
(4) The appellant insists that he was exempt from the requirements of registration and taxation because, at the...
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...and denial or infringement of constitutional rights can render the judgment subject to collateral attack. Haynes v. United States, 339 F. 2d 30 (5th Cir. 1964), cert. denied, 380 U.S. 924, 85 S.Ct. 926, 13 L.Ed.2d Additionally, in regard to points 13 and 14, the question of whether or not t......
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