United States v. Albert Sergio Rapalo

26 F.3d 134 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. 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. 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…