This is an appeal in forma pauperis from the denial of a motion to vacate sentence pursuant to 28 U.S.C. 2255. The motion filed was in the alternative; i.e., likewise to correct an illegal sentence under Rule 35, Federal Rules of Criminal Procedure.

To understand this appeal, we must note its background. We quote from appellee's brief:

'Appellant, Laurence Frederick Anthony, was indicted by the Federal Grand Jury on March 27, 1957, for violations of Title 21, United States Code, Section 176a for selling 5 ounces of marihuana on Feb. 23, 1957 and 2 pounds, 5 ounces of marihuana on March 11, 1957, and was convicted on May 23, 1957. On June 10, 1957, the Honorable William C. Mathes, United States District Judge sentenced the appellant, Laurence Frederick Anthony, to the custody of the Attorney General for a period of 20 years and a fine of $5,000 to be paid to the United States for the offense charged in Count One of the indictment and 20 years for the offense charged in Count Four of the indictment, said two 20 year sentences to run consecutively for a total period of 40 years.

'A timely notice of appeal was filed and the judgment of conviction was affirmed by this Honorable Court in Anthony v. United States, 256 F.2d 50 (Ninth Cir. 1958). On June 9, 1959, appellant filed in the United States District Court a motion to vacate his sentence pursuant to Title 28, United States Code, Section 2255, alleging insufficiency of the evidence as grounds therefore and said motion was denied on August 25, 1959. On November 9, 1959, appellant again filed a motion pursuant to Title 28, United States Code, Section 2255, to vacate the sentence of the District Court imposed on June 10, 1957, alleging basically the same reasons as in his first 2255 motion and his second motion to vacate sentence was denied on December 31, 1959.

'Counsel was appointed by this Honorable Court for the appellant on May 7, 1960. Thereafter, a motion for leave to appeal in forma pauperis and to proceed on typewritten briefs was denied by this court on December 6, 1960. In February of 1961, the appellee, United States of America, moved this court to dismiss the appeal from the denial of the 2255 motion for failure to prosecute the appeal as provided in Rule 39(a) of the Federal Rules of Criminal Procedure. Said motion was granted on March 6, 1961. Certiorari was denied by the United States Supreme Court on October 9, 1961, which is reported in Anthony v. United States, 368 U.S. 852 (82 S. Ct. 85, 7 L. Ed. 2d 49) (1961).'

Jurisdiction below rested on 18 U.S.C. 3231; 21 U.S.C. 176a; 28 U.S.C. 2255; Rule 35, Fed.R.Crim.P. Jurisdiction here exists under 28 U.S.C. 1291 and 1294.

Counsel for appellant accepts and adopts the court's statement of facts appearing in 256 F.2d 50, when his conviction was affirmed. (Op. Brf. p. 3.) We note here, as we noted there, that the insufficiency of the evidence to convict on either count was not previously raised, but rather four alleged errors in the introduction of evidence. For that reason, it was not necessary for the entire evidence in detail to be summarized in our previous opinion, nor even to attempt to summarize its important features. For that reason it becomes necessary to state the facts, and we adopt the statement made by the government as appears in the margin.1

Three alleged errors are raised, which we will consider in turn:

I-- The trial court lacked jurisdiction because of the absence of any substantial evidence of possession of marijuana.

From the recital in note 1, there exists ample evidence from which a proper and lawful inference of control and dominion over, and hence possession of, the marijuana involved, by the appellant may be drawn by the trier of fact.

' It is true,' admits appellant, 'that there is a possible inference that he (appellant) indeed delivered the marijuana, prior to the two sales, in brownpaper bags; that he carried his supply in his car (etc).' This being so, the possible inference becomes a proper inference of the fact of possession-- of dominion and control of the marijuana-- and once made by the trier of fact, and determined by him to be substantial, clear and convincing proof, such a determination of fact is binding on us. Williams v. United States, 9 Cir. 1961, 290 F.2d 451. The fact that all evidence might be circumstantial (though such state of facts does not here exist) would not prevent the finding of the jurisdictional fact of possession. Rodella v. United States, 9 Cir. 1960, 286 F.2d 306, and cases cited, p. 312, cert. den. 365 U.S. 889, 81 S. Ct. 1042, 6 L. Ed. 2d 199.

Appellant urges that the only two decisions of the Supreme Court ever to uphold the validity of the statutory presumption established defendant's possession by 'direct proof' as 'actual and physical,' not 'constructive' possession. We cannot agree.

In Roviaro v. United States, 1957, 353 U.S. 53, 57, 77 S. Ct. 623, 1 L. Ed. 2d 639, the government agent saw just what the government agent here saw-- there the defendant carrying a small package (here a brown paper bag). In Yee Ham v. United States, 1925, 268 U.S. 178, 182, 45 S. Ct. 470, 471, 69 L. Ed. 904, the facts merely show: 'The plaintiff * * * at the time of his arrest * * * was found in possession of and concealing a quantity of smoking opium.' Here, at the time of appellant's arrest in an auto, marked money used previously to buy marijuana was found on him,2 two bags of marijuana were found in his automobile.

But even were the distinction urged by appellant to be accepted, it would not prove that because actual physical possession existed in two cases before the Supreme Court, a different rule would be expected were the possession only a constructive possession.

Appellant also requests us to consider Harris v. United States, 1959, 359 U.S. 19, 79 S. Ct. 560, 3 L. Ed. 2d 597, reh. den. 359 U.S. 976, 79 S. Ct. 873, 3 L. Ed. 2d 843. In Harris the Supreme Court merely states: 'The Government introduced into evidence the heroin itself, and testimony that petitioner had been in possession of it.' (359 U.S. p. 20, 79 S.Ct. p. 562, 3 L. Ed. 2d 597) But a review of the facts disclosed in the opinion of the court of appeals (8 Cir. 1957, 248 F.2d 196) reveals no 'actual, physical' possession of the heroin in defendant Harris, but merely that he was identified by one of two police officers as being physically present in a room; in which room were two other persons (Robinson and Stamps); one of whom (Robinson) 'had his hand in the white powder (on a mirror) on the bed.' (248 F.2d p. 198) Harris claimed an alibi, supported by the testimony of one Mason (allegedly the true third man in the room); one of the two codefendants, and his commonlaw wife. Yet the court of appeals stated there was competent evidence Harris 'was present with the other defendants in the room at 4567 McMillan where unstamped heroin was being handled, that Harris was 'shown to have had possession of it,' and to be a 'person in whose possession it was found' within the meaning of the sections of the statute on which the indictment was rested.'

These facts disclosed by the court of appeals' opinion, plus the Supreme Court's affirmance relying on the presumption based on defendant's failure to explain his constructive possession, strongly indicate that the Supreme Court will require 'direct evidence,'3 but not necessarily require actual proof of physical possession before it will sanction the application of the presumption.4

We hold there was clear and convincing proof by substantial evidence of appellant's possession of the prohibited drug.

II-- The trial court lacked jurisdiction because there was no evidence of unlawful importation.

Here appellant raises the question as to whether the presumption created by the fact of possession, under the terms of the second paragraph of 21 U.S.C. 176a5 can logically be applied to marijuana, known to occasionally grow in the United States, as it has been applied to the products of the opium poppy,6 known not to be grown in the United States.

In Caudillo v. United States, 9 Cir. 1958, 253 F.2d 513, cert. den. sub nom. Romero v. United States, 357 U.S. 931, 79 S. Ct. 1375, 2 L. Ed. 2d 1373, we avoided ruling on the question here again raised by finding sufficient evidence in the record from which an inference could logically be drawn that the marijuana had come from outside the United States, i.e., that there existed a rational connection between the fact proved and the ultimate fact presumed. That was because the marijuana was 'unmanicured,' i.e., 'it had seeds and stems and sticks mixed with the marihuana leaves.' (Cf. discussion in Caudillo, 253 F.2d pp. 515-516.)

There are four reasons why we conclude that here competent evidence existed of unlawful importation, and hence there was jurisdiction:

First: There was evidence in the record that on February 23, 1957, when the first sale was consummated (Count I) the marijuana allegedly brought by defendant in the paper bag was examined in codefendant Landry's bedroom. When the second purchase was made on February 27, 1957 (in which defendant Anthony was not seen to have had any connection and with which sale he was not charged), Landry referred to the previous February 23rd sale, and that 'the last time in the bedroom marijuana seed and debris had been scattered everywhere and (Landry) * * * didn't want that to happen again.' It could have been reasonably inferred that the seed and debris would come only from 'unmanicured' marijuana.

Thus, if we assume the trial court could take judicial knowledge of the kind of marijuana grown in the United States (and how it differs from the imported marijuana, and defendant requests the court to take judicial knowledge that marijuana sometimes grows in the United States), there exists sufficient competent evidence to call the presumption into play on behalf of the government.

In Butler v. United States, 9 Cir. 1959, 273 F.2d 436, we relied (p. 439) upon the same type of evidence.

Secondly: In Costello v. United States, 9 Cir. 1963, 324 F.2d 260, cert. den. 376 U.S. 930, 84 S. Ct. 699, 11 L. Ed. 2d 650, we went further than we had in Caudillo and Butler, but concluded, on the record of that case, particularly where 'no attempt was made to make a record as to the conditions or restrictions under which the drug there involved * * * may lawfully be possessed or used,'7 presence of 'manicured' marijuana was not sufficient to render the statute invalid. As in Costello, we here go no further than to repeat 'on this record we cannot say that the statute is unconstitutional either on its face or as applied to this case.'

Third: This is before us as an appeal from a denial of a 2255 motion. Title 28 U.S.C. 2255 was not created to substitute for or take the place of an appeal. Fiano v. United States, 9 Cir. 1961, 291 F.2d 113, cert. den. 368 U.S. 943, 82 S. Ct. 380, 7 L. Ed. 2d 340; Perno v. United States, 9 Cir. 1957, 245 F.2d 60, cert. den. 362 U.S. 964, 80 S. Ct. 880, 4 L. Ed. 2d 878. The question now raised was not raised on the appellant's original appeal. (Cf. 256 F.2d 50.) Labeling the constitutionality of the presumption clause a matter of 'jurisdiction' does not make it one. There is sufficient evidence in this record to make the applicability of the second paragraph of 176a one of law, and not a question of jurisdiction. There are no facts to demonstrate a lack of jurisdiction, and counsel cites us no cases to demonstrate the lack. 'The presumption created is 'a rule, not of substantive law at all, but merely of evidence.' Ng Choy Fong v. United States, 9 Cir., 1917, 245 F. 305, 307; Stein v. United States, 9 Cir., 1948, 166 F.2d 851, certiorari denied 334 U.S. 844, 68 S. Ct. 1512, 92 L. Ed. 1768.' Butler v. United States, 9 Cir. 1959, 273 F.2d 436, 438. Hernandez v. United States, 9 Cir. 1962, 300 F.2d 114, 118.

Fourth: Other courts of appeal have had no difficulty in upholding the application of the presumption to marijuana, despite its growth in the United States. United States v. Kapsalis, 7 Cir. 1963, 313 F.2d 875; United States v. Gibson, 2 Cir. 1962, 310 F.2d 79. And, for whatever it may be worth, we note the United States Supreme Court denied certiorari in the Kapsalis case, supra, 374 U.S. 856, 83 S. Ct. 1911, 10 L. Ed. 2d 1077.

III-- The forty year sentence is a denial of due process, and the infliction of cruel and unusual punishment.

There is no merit to this point. The sentence was within the term prescribed by the Congress. The punishments prescribed, fine and imprisonment, are and always have been customary punishments for crime in this country, and cannot be said to be either cruel or unusual. The defendant was convicted of two sales on two different days and under different circumstances. Appellant's argument with respect to hypothetical consecutive maximum sentences for (a) receiving, (b) concealing, (c) buying, (d) selling, (e) transporting, (f) facilitating the concealment, (g) facilitating the transportation, etc., etc., ad infinitum, 'on one or perhaps two occasions immediately connected with one another' makes no sense. 'Punish the incorrigible recidivist as Congress intended,' urges appellant, 'and not the first offender.' Appellant was convicted of two separate offenses which occurred on two separate occasions. The punishment fixed for each offense was within the limit prescribed by Congress for that offense, and the court had the discretion to order the sentences to run consecutively rather than concurrently.

Nor does it aid appellant to urge upon us the problem of disparate sentences. That is a problem which will someday doubtless be solved by statutory enactment of some system for the federal courts similar to the indeterminate sentence law of California and other states. It is the duty of the judiciary to study the problem, and to aid in solving it, but not by judicial legislation.

It is urged that the punishment imposed is excessive. On the record that is before us (which, for example, does not include the presentence report), the punishment imposed, while within limits of permitted discretion, does appear to be severe. We note that the judge who denied the motion here on appeal was also the sentencing judge, and he suggested to counsel that Anthony should seek executive clemency.8 This seems to be appellant's only present remedy.

'If there is one rule in the federal criminal practice which is firmly established, it is that the appellate court has no control over a sentence which is within the limits allowed by a statute.' Gurera v. United States, 8 Cir. 1930, 40 F.2d 338, 340-341; Brown v. United States, 9 Cir. 1955, 222 F.2d 293, 298; Pependrea v. United States, 9 Cir. 1960, 275 F.2d 325, 330.

The denial of the motion to vacate sentence is affirmed.