454 F2d 273 Mauney v. United States

454 F.2d 273

Sidney A. MAUNEY, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 71-1589.

United States Court of Appeals,
Sixth Circuit.

Jan. 26, 1972.

Sidney A. Mauney, in pro. per.

John L. Bowers, Jr., U. S. Atty., Robert E. Simpson, Asst. U. S. Atty., Knoxville, Tenn., on brief for appellee.

Before PHILLIPS, Chief Judge, and CELEBREZZE and MILLER, Circuit Judges.

PER CURIAM.

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1

This is an appeal from an order dismissing Mauney's petition to vacate sentence. We affirm.

2

In 1970 Mauney was convicted in the United States District Court for interstate transportation of a firearm after having been convicted of a crime punishable by imprisonment for more than one year. He was sentenced to a three year term of imprisonment. The conviction was affirmed on direct appeal. (No. 20,705, 6th Cir., March 25, 1971, unpublished.)

3

In June 1971 Mauney filed the instant action, asserting that his sentence exceeded the statutory maximum.

4

Mauney asserts that he should have been sentenced under 18 U.S.C. App. Sec. 1202(a).1 The Government contends that he was indicted, tried, and convicted under 18 U.S.C. Sec. 922(g)2 and was properly sentenced under 18 U.S.C. Sec. 924(a).3

5

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7

The record shows that Mauney was tried and convicted for violation of 18 U.S.C. Sec. 922(g). The sentence was within the maximum provided by 18 U.S.C. Sec. 924(a). Where two statutes proscribe identical conduct, the Government may elect to prosecute under the statute providing the more severe penalty. See Berra v. United States, 351 U.S. 131, 134-135, 76 S.Ct. 685, 100 L.Ed. 1013 (1956).

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8

Affirmed.

1

"Sec. 1202. Receipt, possession, or transportation of firearms-Persons liable; penalties for violations

"(a) Any person who-

(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, . . . and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both."

2

"Sec. 922. Unlawful acts

"(g) It shall be unlawful for any person-

(1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; . . .

to ship or transport any firearm or ammunition in interstate or foreign commerce."

3

"Sec. 924. Penalties

"(a) Whoever violates any provision of this chapter . . . shall be fined not more than $5,000, or imprisoned not more than five years, or both, and shall become eligible for parole as the Board of Parole shall determine."