
    UNITED STATES of America, Plaintiff and Appellee, v. William Earl JOHNSTON, Appellant.
    No. 71-1347.
    United States Court of Appeals, Ninth Circuit.
    April 13, 1971.
    Rehearing Denied May 25, 1971.
    George P. Eshoo, Redwood City, Cal., for appellant.
    Harry Steward, U. S. Atty., San Diego, Cal., for appellee.
    Before CHAMBERS, HUFSTEDLER and WRIGHT, Circuit Judges.
   PER CURIAM:

The judgment of conviction is affirmed.

This was a conviction for smuggling and transporting marijuana (21 U.S.C. § 176a). Johnston was caught at the Mexican border.

Here he contends he was entitled to an instruction on “lesser included offense,” to-wit: 18 U.S.C. § 545: smuggling merchandise (without invoicing) into the United States with intent to defraud.

In another case, the contention might be correct. But here it was marijuana that was smuggled or nothing. Defendant could not be guilty of 18 U.S.C. § 545 without having violated 21 U.S.C. § 176a. So it was no error to not instruct about a lesser offense. See Olais-Castro v. United States, 9 Cir., 416 F.2d 1155.

The mandate will issue forthwith.  