Gaspar Cisneros, Appellant-petitioner, v. United States of America, Appellee-respondent, 322 F.2d 948 (9th Cir. 1963)

On October 3, 1960, an indictment was returned against Cisneros in the above named district court charging him with conspiring with others to violate § 174 of Title 21 U.S.C. relating to importation, receiving, concealing or otherwise dealing in narcotic drugs which had been imported into the United States. The indictment referred to "Title 21 U.S.C. 174 — conspiracy to violate narcotic laws." It set forth overt acts pursuant to the conspiracy charged to have been committed on October 22, 1959.

Upon trial Cisneros was found guilty of the offense as charged and he was sentenced to 15 years imprisonment. Thereafter Cisneros sought to have his sentence modified or corrected by petition filed pursuant to Title 28 U.S.C. § 2255. The ground assigned for this motion was that the indictment had merely made reference to Title 21 § 174 and did not refer to that section "as amended."

Prior to the amendment of this section on July 18, 1956, 70 Stat. 570, § 174 of Title 21, provided for a penalty by imprisonment for a period not exceeding two years. The 1956 amendment increased the penalty under that section so as to provide for imprisonment from 5 to 20 years. Cisneros contended that not only was the indictment itself fatally defective in not referring to the section "as amended" but that his conviction under this indictment would not authorize the imposition of the sentence which he received.

The petition for § 2255 relief was denied and the appeal before us is from that order.

The appellant's contentions are wholly without merit. Johnson v. United States, 14 Alaska 380, 206 F.2d 806, 808; Steffler v. Johnston, 9 Cir., 121 F.2d 447; United States v. Poindexter, 6 Cir., 293 F.2d 329, 333.

The order appealed from is affirmed.