Cite as Pruitt v. U.S., 364 F.2d 826 (6th Cir. 1966)

              Arthur Pruitt, Petitioner-Appellant,

                               v.

         United States of America, Respondent-Appellee,

                           No. 16746.

         United States Court of Appeals, Sixth Circuit.

                         Aug. 18, 1966.

     Arthur Pruitt, in pro. per.

     Merle M. McCurdy, U. S. Atty., James L. Oakar, Asst. U. S.
Atty., Cleveland, Ohio, on the brief, for appellee.

     Before WEICK, Chief Judge, PHILLIPS, Circuit Judge, and CECIL,
Senior Circuit Judge.

     PER CURIAM.

     This appeal is from an order of the District Court denying
appellant's motion to vacate sentence filed under Title 28, Sec.
2255, U.S.C.

     Appellant had entered a plea of guilty in the District Court
to an indictment charging that he did possess a firearm which was
not registered according to law in violation of Title 26, Sections
5851 and 5861, U.S.C. He was sentenced to imprisonment for three
years and ten months.

     Pruitt claims that when he entered his plea of guilty, he was
unaware that the section of the Code providing for registration of
firearms (Title 26 U.S.C., section 5841) had been declared
unconstitutional as requiring one in his situation to incriminate
himself. Russell v. United States, 306 F.2d 402 (9th Cir. 1962). He
also relies on Dugan v. United States, 341 F.2d 85 (7th Cir. 1965);
United States v. Fleish, 227 F.Supp. 967 (D.C. Mich. 1964); McCann
v. United States. 217 F.Supp. 751, 752 (D.C.Colo. 1963).

     Russell and the other cases relied on by Pruitt charged
violation of the registration section, section 5841. Pruitt was
charged in the present case with possession of an unregistered
firearm in violation of Section 5851. Section 5861 merely
prescribes the penalty. The gist of Pruitt's offense was not that
he failed to register the firearm, but that he possessed a firearm
which had not been registered.

     This distinction was pointed out in later decisions by the
Ninth Circuit, which had decided Russell. They upheld convictions
under Section 5851. Frye v. United States, 315 F.2d 491 (9th Cir.
1963); Starks v. United States, 316 F.2d 45 (9th Cir. 1963). In
Sipes v. United States, 321 F.2d 174 (8th Cir. 1963) the Court
followed Frye and Starks.

     We applied the same rule to an indictment under Section 5855
charging unlawful transportation of unregistered firearms in
interstate commerce. United States v. Forgett, 349 F.2d 601 (6th
Cir. 1965), cert, denied, 383 U.S. 926, 86 S.Ct. 929, 15 L.Ed.Sd
845 (1966). See also Lovelace v. United States, 357 F.2d 306 (5th
Cir. 1966).

     Since Pruitt was charged with violation of Section 5851, he is
not in position to attack the constitutionality of Section 5841.
The decisions on which he relies are inapplicable.

     The judgment of the District Court is affirmed.