This is an appeal from an order of the court below denying appellant’s petition for writ of habeas corpus. The appellant *750presents the following points for review: “1. The Court erred in denying writ of habeas corpus. 2. The Court erred in not declaring statute attacked to be unconstitutional as shown. 3. The Court erred in denying petitioner law of the land.” We will consider petitioner’s second contention; if that falls, the others must fall.
It appears that the appellant was convicted on an undisclosed daté in the District Court of the United States for the Western District of Washington and sentenced to serve a term of imprisonment of forty-five years, under the Act of June 22, 1932, 47 Stat. 326, as amended May 18, 1934, 48 Stat. 781, 18 U.S.C.A. § 408a, which reads as follows: “Whoever shall knowingly transport or cause to be transported, or aid or abet in transporting, in interstate or foreign commerce, any person who shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away by any means whatsoever and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall, upon conviction, be punished (1) by death if the verdict of the jury shall so recommend, provided that the sentence of death shall not be imposed by the court if, prior to its imposition, the kidnaped person has been liberated unharmed, or (2) if the death penalty shall not apply nor be imposed the convicted person shall be punished by imprisonment in the penitentiary for such term of years as the court in its discretion shall determine: Provided, That the failure to release such person within seven days after he shall have been unlawfully seized, confined, inveigled, decoyed, kid-naped, abducted, or carried away shall create a presumption that such person has been transported in interstate or foreign commerce, but such presumption shall not be conclusive.”
Waley argues that “Congress did not have jurisdiction to delegate to the trial court authority to legislate the amount of punishment, to-wit: * as the court in its discretion may determine.’ ” He adds to this premise the contention that the statute does not fix the maximum penalty and that it is, by reason thereof, unconstitutional.
The appellant’s arguments bring the case, in its essential particulars, to a position identical with that of Bates v. Johnston, Warden, 9 Cir., 111. F.2d 966, decided by this court May 13, 1940, and upon the authority of that case and Bailey v. United States, 10 Cir., 74 F.2d 451, 452, cited therein, must be held unavailing.
There being no basis for issuance of a writ of habeas corpus, the order of the District Court denying appellant’s petition is
Affirmed.