212 F. 2d 87 - Russell v. United States

This is an appeal from an order denying a motion made under 28 U.S.C. § 2255 to vacate a sentence of imprisonment imposed upon a plea of guilty. The indictment charged in the first count that the appellant "being a person required to register and pay the special tax as provided by sections 3221 and 3220 of Title 26, United States Code" did have in his possession 2193 grains of heroin hydrochloride, without having registered and paid the special tax. A second count charged transportation of the drug from New York to Maryland. The appellant, being represented by counsel of his own choosing, voluntarily entered a plea of guilty to the indictment and was given a sentence of five years imprisonment and a fine of $2,000. The defendant contends that the second count of the indictment was dismissed, but an examination of the record shows that this is not true but that appellant was given a single sentence on both counts.

The appellant's sole ground for the motion to vacate and set aside the sentence is that he was not a person required to register and pay the special tax as provided by the statute; but he voluntarily pleaded guilty to an indictment charging that he was such a person, and he may not now controvert his guilt as established by that plea. Furthermore, whether appellant was a person required to register and pay the special tax or not, his plea of guilty admits the charge of the second count of the indictment that he transported the heroin from one state to another, which is made a crime by 26 U.S.C. § 3224(b) as amended, and the sentence imposed upon him is sustainable under that count.

Affirmed.