Full opinion text
PER CURIAM: Appellant was indicted and convicted on various counts covering the possession, concealing and sale of heroin and marijuana. The sole question on this appeal is procedural: namely, should appellant have been sentenced for the sale and concealment of the narcotics under 21 U.S.C. § 174, rather than 18 U.S.C. § 4251, et seq. There is no merit in appellant’s contention by the precise terms of the statute. Only “eligible offenders” are subject to the discretionary action of the trial judge. 18 U.S.C. § 4252. Further, the appellant was not an “eligible person” toward whom any discretion could be exercised by the terms of 18 U.S.C. § 4251(f) (4), which excludes persons convicted of two or more felonies. Here it was proved that appellant had been convicted of three felonies. The judgment of conviction is affirmed.