
    Henry DAVIS, Appellant, v. UNITED STATES of America, Appellee.
    No. 17037.
    United States Court of Appeals Eighth Circuit.
    July 23, 1962.
    Rehearing Denied Sept. 6, 1962.
    Henry Davis, pro se.
    D. Jeff Lance, U. S. Atty., St. Louis, Mo., filed motion to dismiss.
    Before JOHNSEN, Chief Judge, and MATTHES, Circuit Judge.
   PER CURIAM.

The United States has filed a motion to dismiss as frivolous the appeal taken by appellant from the denial of his motion under 28 U.S.C.A. § 2255, for vacation of the sentences imposed upon him on his pleas of guilty to all the counts of an indictment.

The counts of the indictment were eight in number, seven of them charging sales of heroin in violation of 26 U.S.C. § 4705(a), and the eighth charging conspiracy with a third party to violate said section by engaging in selling heroin contrary to its provisions. Appellant was given a sentence of 5 years imprisonment on each count, with the sentences on counts 1, 2, and 3 to run consecutively to each other, and with the sentences on the rest of the counts to run concurrently with those on the first three counts. The term of appellant’s imprisonment thus amounted to a total of 15 years.

P. ^ „ ,, ,, [1,2] The first basis of appellant s motion to vacate was a contention that all the counts m the indictment were fatally defective m that they failed to charge that, m making the sales or in conspiring to effect them, appellant had knowingly and wilful y undertaken to violate the statute. We long ago held, however, under the Harrison Narcotics Act, that criminal intent is not an element of the offense of selling narcotic drugs m violation of the statute. Daugherty v. United States, 8 Cir 2 F 2d 691, reversed on other grounds 269 U.S. 360, 46 S.Ct. 156, 70 L.Ed. 309. The motive with which one may have engaged m such forbidden selling, or in conspiring to effect such forbidden sales as have been completed, is wholly immaterial. Guilbeau v. United States, 5 Cir., 288 F. 731, 733.

The provision of the Harrison Narcotics Act, 38 Stat. 786, that “it , ,, , , „ , » , „ shall be unlawful for any person to sell, , , , . I barter, exchange, or give away any of „ ., r ,. , , . the aforesaid [narcotics] drugs except m „ ... , „ ,, pursuance of a written order of the per- . , , , . ,, , . , son to whom such article is sold, bartered, ... „ , , or exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue”, was ... , , . , , , , without material change made a part „ T , it. ^ , p o of the Internal Revenue Code of 1939, § s of tt a n a s orka/ ^ j -p 2554(a), 26 U.S.C.A. § 2554(a) and of ., T , , t, n ■, ¿im-. o the Internal Revenue Code of 1954, § 4705 / \ of tt c< n a mi.- , (a), 26 U.S.C.A. This prohibition has judicially been regarded, through the years, in the numerous prosecutions which have been made under it, as involving no question of intent. Neither the language of the statute nor any existing decision affords any possible basis for appellant’s contention.

The second ground of appellant’s motion was a statement that he had «entered a plea of guiLy with the under- , v • p , • .. , tt n standing by information that the U. S. ... .i, .. ,, , i . Attorney told him that he would receive more than the minimum, but it would be (the counsel’s advice) from seven to ten years (See Exhibit A) but received fifteen years”. Exhibit A referred to in appellant’s statement and attached by Hm ag a bagig fop big motion> contained nothing that eould be contended to con-fltitute an improper inducement in regard tQ ^ lengtb of hig sentence. To ^ contrary; it demonstrated that all ^ had occurred in the situation was tbat the United gtateg Attorney and ap.. pellant,g appointed counsel had each ven. tured an opinion Qr prediction as to what gentence tbe courfc mig.ht impose> and that appellant>s counBel had made it clear that thege were merely personal estimates Qr gueggeg without implication of bagig for relianee on tbem ag far as the court wag concerned.

The exhibit consisted of a letter to appellant from his counsel in which it was stated:

“With respect to your inquiry concerning my statement that you would re“ive than a seven year f1S°n s®íen*e f0r P^ding guilty, I remember that matter quite dis- ,. ,, TT ., , , ... tmctly. The United States Attorney , ... ,, , , . ,, , ., handling the case stated that it was . . ,, . his opinion that you would receive ,, ,, more than the minimum because of . , your prior record, and that it was ; . ,,,,,, ,,, hls gUeSS thatTth<? seate?.ce "°u d b,® years‘ a 1S iac y *e([a stating to you that, although the TT -x j cu , . , ’ , United States Attorney was much . ... ... , ° more familiar with such matters, it ,. was my estimation that your sen- . ,,, p J „ tence would be for ten years. J

Mere prediction as to the court’s likely attitude on sentence, whether made by the United States Attorney or by defendant’s appointed counsel, is not a ground for having a sentence vacated and a plea of guilty withdrawn, where it has been indicated or otherwise is manifest that the expression is one of personal opinion> witb n0 bagig for the defendant to regard it as involving any agreement or , , ,. ,, , understanding with the court. Cf. Domenica v. United States, 1 Cir., 292 F.2d 483, 48 .

Appeal dismissed as frivolous.  