Opinion
No. 116, Docket 27114.
Submitted November 27, 1961.
Decided December 21, 1961.
Joseph Frank Sierra, pro se.
Robert M. Morgenthau, U.S. Atty., S.D.N.Y., New York City, and Gerald E. Paley and Arthur I. Rosett, Asst. U.S. Attys., New York City, for appellee.
Before CLARK, FRIENDLY, and KAUFMAN, Circuit Judges.
Defendant appeals from the district court's refusal to set aside his sentence as a second offender for the sale of heroin. He was first convicted in 1954. In 1957 on his plea of guilty to another heroin sale, he was sentenced under 21 U.S.C. § 174 as a second offender to a 12-year term in prison on each of two counts, the sentences to run concurrently. This is the sentence here under attack. The statute had been amended in 1956 to increase the penalties for subsequent offenders provided in the initial Act of 1951.
All of the points now urged by defendant are well settled against him. The Narcotics Control Act of 1956 is not ex post facto as to the 1957 conviction and sentence. Cooper v. United States, D.C.S.D.N.Y., 114 F. Supp. 464, 465; Beland v. United States, 5 Cir., 128 F.2d 795, certiorari denied 317 U.S. 676, 63 S.Ct. 157, 87 L.Ed. 543; Wey Him Fong v. United States, 9 Cir., 287 F.2d 525, certiorari denied 366 U.S. 971, 81 S.Ct. 1937, 6 L.Ed.2d 1261. Denial of parole to a narcotics prisoner does not deprive him of the equal protection of the law. Lathem v. United States, 5 Cir., 259 F.2d 393; Gallego v. United States, 9 Cir., 276 F.2d 914. A previous conviction may be considered as a prior offense, even if it resulted in only a suspended sentence. United States v. Rivera, 2 Cir., 224 F.2d 88, 89; Tanzer v. United States, 9 Cir., 278 F.2d 137, certiorari denied 364 U.S. 863, 81 S.Ct. 103, 5 L.Ed.2d 85. And the concurrent sentences on the two counts did not place defendant in double jeopardy as even consecutive sentences would not. Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405; United States v. Johnson, 2 Cir., 208 F.2d 404, certiorari denied Johnson v. United States, 347 U.S. 928, 74 S.Ct. 531, 98 L.Ed. 1080.
Order affirmed.