325 F2d 714 Aponte v. United States

325 F.2d 714

Marcos Iriarte APONTE, Appellant,
UNITED STATES of America, Appellee.

No. 20704.

United States Court of Appeals Fifth Circuit.

December 26, 1963.

Certiorari Denied March 9, 1964.

See 84 S.Ct. 803.

William A. Jackson, Asst. U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., Woodrow Seals, U. S. Atty., Houston, Tex., for appellee.

Before HUTCHESON, BREITENSTEIN,* and BELL, Circuit Judges.


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Aponte appeals from the denial of a petition brought pursuant to Title 28 U.S.C.A. § 2255 to vacate a sentence imposed on him as a second offender after a guilty plea under the narcotic drugs and marihuana laws. Title 26 U.S.C.A. §§ 4744(a) (2) and 7237(a) and (d).


The contention that his sentence on the first offense was void because of having been imposed by an associate justice of the Supreme Court of Puerto Rico sitting as a United States District Judge for the District of Puerto Rico under presidential order is without merit. Congress was empowered pursuant to Art. IV, § 3, Cl. 2 of the Constitution to, and did by statute in effect at the time of the first offense, create courts for Puerto Rico, and provide that a justice of its Supreme Court might be assigned to sit as a District Judge in that district. Puerto Rico Organic Act of 1917, §§ 40, 41. Title 48, U.S.C.A. §§ 861, 863, 39 Stat. 966. See Moreno Rios v. United States, 1 Cir., 1958, 256 F.2d 68; and cf. Despiau v. United States Casualty Company, 1 Cir., 1937, 87 F.2d 270.


Thus it is that the judgment appealed from should be and it is affirmed.



Of the Tenth Circuit, sitting by designation