553 F.2d 991
UNITED STATES of America, Plaintiff-Appellee.v.Martin W. HOULTIN, Robert Burke, Duane Morrison, MichaelFrancis, Kenneth B. Phillips, and Kenneth J.Croucher, Defendants-Appellants.
No. 74-4144.
United States Court of Appeals,Fifth Circuit.
June 13, 1977.

Lee A. Chagra, El Paso, Tex., for Houltin, Burke, Morrison & Francis.
Malcolm McGregor, El Paso, Tex., for Croucher.
Bill Ravkind, Dallas, Tex.  (Court-appointed), for Phillips.
William S. Sessions, U. S. Atty., Jeremiah Handy, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before JONES, WISDOM and AINSWORTH, Circuit Judges.

BY THE COURT:

1
The Supreme Court of the United States vacated the judgment of the Court of Appeals in this cause and remanded the cause "for reconsideration in light of the position presently asserted by the government".  That position is set forth in a memorandum of the Solicitor General, filed with the Supreme Court, in which he stated:


2
After reviewing the facts of this case, we have concluded that the offense of conspiracy to import marijuana into this country does involve a compelling federal interest that is distinct from any interest vindicated by petitioners' prior state convictions on the charge of simple possession of the drug.  Accordingly, petitioners' federal prosecution for conspiracy to import marijuana has been approved by the Attorney General pursuant to Departmental guidelines and there is thus no basis for disturbing their convictions on the importation count.


3
We believe, however, that petitioners' prosecution for conspiracy to possess marijuana was not supported by an independent compelling federal interest in light of the substantial similarity between that charge and the offense of which petitioners were convicted in state court.  We therefore respectfully request the Court to permit the effectuation of this governmental policy by granting the petition, vacating the judgment of the court of appeals only as to the charge of conspiracy to possess marijuana (count two), and remanding the case to the district court with instructions to grant the government's motion to dismiss that count.  In all other respects the petition should be denied.


4
This Court has reconsidered the cause in light of the Solicitor General's representation.


5
The judgment of this Court as to the charge of conspiracy to possess marijuana (count two) is withdrawn.  The case is remanded to the district court with instructions to grant the government's motion to dismiss that count.  In all other respects this Court's judgment and that of the district court are reaffirmed.

