Jose Manuel Quijada Gaxiola v. United States

435 F.2d 264 Jose Manuel QUIJADA GAXIOLA, Appellee, v. UNITED STATES of America, Appellant. No. 25774. United States Court of Appeals, Ninth Circuit. Nov. 27, 1970. Richard Burke, U.S. Atty., Morton Sitver, Asst. U.S. Atty., Phoenix, Ariz., for appellant. Jose Manuel Quijada Gaxiola, in pro. per. Before HAMLEY, ELY and WRIGHT, Circuit Judges. HAMLEY, Circuit Judge: 1 In this proceeding under 28 U.S.C. 2255, Jose Manuel Quijada Gaxiola wants the court to set aside his conviction, under 26 U.S.C. 4744(a), for failure to pay the marihuana transferee taxes provided for in 26 U.S.C. 4741 and 4771. The district court granted the application and the United States appeals. 2 On September 27, 1967, appellee was indicted at Phoenix, Arizona, in Cause No. C-17829 Phx., for importation of heroin in violation of 21 U.S.C. 174, and importation of marihuana in violation of 21 U.S.C. 176a. On April 1, 1968, after he waived indictment, appellee was informed against at Phoenix, in Cause No. C-18013 Phx., for failing to pay the marihuana transferee tax imposed by 26 U.S.C. 4741 and 4771, in violation of 26 U.S.C. 4744(a). 3 Plea bargaining then took place with regard to all three charges. As a…

(concurring):

Under the compulsion of United States v. Weber, 429 F.2d 148 (9th Cir. 1970), and its progeny, I concur in the majority opinion. I cannot do so, however, without recording my disagreement with the reasoning of the Weber court. It held, as my Brother Hamley points out, that since Weber’s plea occurred after the Supreme Court’s Marchetti, Grosso, and Haynes decisions in 1968, Weber “had ample reason to foresee the Leary decision” which followed on May 19, 1969. In so holding, the Weber court apparently endowed Weber with a degree of legal expertise and prophetic wisdom not possessed by many of our Nation’s ablest jurists, including some of the members of our own court. In Daniels v. United States, 402 F.2d 30 (9th Cir. 1968), we upheld a conviction under 26 U.S.C. § 4744 (a). We issued that decision after the Grosso, Marchetti, and Haynes decisions and before it was declared, in Leary, that the statute was unconstitutional. Obviously we did not then anticipate the Leary decision on the point in question, and neither, apparently, did some of the distinguished judges of the Fifth Circuit. See, e. g., Thompson v. United States, 403 F.2d 209 (5th Cir. 1968). I would most…

In this proceeding under 28 U.S.C. § 2255 , Jose Manuel Quijada Gaxiola wants the court to set aside his conviction, under 26 U.S.C. § 4744 (a), for failure to pay the marihuana transferee taxes provided for in 26 U.S.C. §§ 4741 and 4771. The district court granted the application and the United States appeals.

*265 On September 27, 1967, appellee was indicted at Phoenix, Arizona, in Cause No. C-17829 Phx., for importation of heroin in violation of 21 U.S.C. § 174 , and importation of marihuana in violation of 21 U.S.C. § 176a. On April 1, 1968, after he waived indictment, appellee was informed against at Phoenix, in Cause No. C-18013 Phx., for failing to pay the marihuana transferee tax imposed by 26 U.S.C. §§ 4741 and 4771, in violation of 26 U.S.C. § 4744 (a).

Plea bargaining then took place with regard to all three charges. As a result, appellee pleaded guilty on April 1, 1968, to the section 4744(a) charge filed in Cause No. C-18013 Phx. On April 22, 1968, based upon this plea, the district court adjudged appellee guilty and sentenced him to an eight-year term of imprisonment, pursuant to 18 U.S.C. § 4208 (a) (2), the sentence to run concurrently with a state sentence he…