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26 F3d 134 United States v. Rapalo

26 F.3d 134

UNITED STATES of America, Plaintiff-Appellee,
v.
Albert Sergio RAPALO, Defendant-Appellant.

No. 93-50628.

United States Court of Appeals, Ninth Circuit.

Submitted May 16, 1994.*
Decided May 25, 1994.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: CHOY, SKOPIL, and FERGUSON, Circuit Judges.

1

MEMORANDUM**

2

Albert Sergio Rapalo appeals his sentence imposed by the district court following his guilty plea to possession of heroin in prison, 18 U.S.C. Sec. 1791(a)(2). Rapalo argues that because heroin is both a "narcotic drug" and a "controlled substance," the statutory prohibition of the possession of both narcotic drugs and controlled substances is ambiguous as applied to heroin. Rapalo argues that the rule of lenity requires that he be charged only with possession of a controlled substance, which carries a lesser penalty.

3

Rapalo's argument is without merit. According to the plain language of the statute, narcotics are excluded from the prohibition of controlled substances. 18 U.S.C. Sec. 1791(d)(1)(D). Heroin is thus prohibited only as a narcotic under 18 U.S.C. Sec. 1791(d)(1)(C). The indictment charging Rapalo with possession of a narcotic drug was entirely proper, and the district court had jurisdiction to convict Rapalo.

4

AFFIRMED.

*

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a), Ninth Circuit Rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3