Unpublished Disposition, 931 F.2d 898 (9th Cir. 1984)
Annotate this CaseUNITED STATES of America, Plaintiff-Appellee,v.Ronald Gene CONGELLIERE, Defendant-Appellant.
No. 87-5198.
United States Court of Appeals, Ninth Circuit.
Submitted April 29, 1991.* Decided May 2, 1991.
Before CANBY, KOZINSKI and FERNANDEZ, Circuit Judges.
MEMORANDUM**
Ronald Gene Congelliere appeals the district court's denial of his Fed. R. Crim. P. Rule 35(a) motion to correct an illegal sentence following his guilty plea to one count of possession with intent to distribute 1000 grams of cocaine in violation of 21 U.S.C. § 841(a) (1). Congelliere contends that the district court erred by imposing a special parole term because the relevant provision for special parole was abolished by the Comprehensive Crime Control Act of 1984, Pub. L. 98-473, 98 Stat. 1976 (October 12, 1984), making the imposition of such a parole term on him illegal. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
We review the legality of a sentence de novo. United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir. 1986).
The repeal of a statute, unless otherwise stated, does not extinguish liability for pre-repeal conduct. 1 U.S.C. § 109; see also United States v. Rewald, 835 F.2d 215, 216 (9th Cir. 1987). The Comprehensive Crime Control Act of 1984, Pub. L. 98-473, 98 Stat.1976 (October 12, 1984) (the Act), revised the penalty provisions of 21 U.S.C. § 841 which were previously codified as sections 841(b) (1) (A) and 841(b) (1) (B). The Act created a new subsection (b) (1) (A); the former (b) (1) (A) became the new (b) (1) (B); and the former (b) (1) (B) became a new subsection (b) (1) (C). Prior to October 12, 1984, the effective date of the Act, section 841(b) (1) (A) required that a violation of section 841(a) result in a sentence of not more than 15 years, a fine of up to $25,000, and a mandatory special parole term of at least 3 years. The new section 841(b) (1) (A), as created by the Act, increased the potential penalties for violations of section 841(a) involving a kilogram or more of cocaine to a maximum of 20 years imprisonment and a $250,000 fine, and eliminated the 3 year mandatory special parole term. Comprehensive Crime Control Act of 1984, Pub. L. 98-473, ch. V, section 502, 98 Stat.1976, 2068 (1984).
Here, Congelliere committed his offense on May 12, 1984. He was sentenced under 21 U.S.C. § 841(b) (1) (A), which at the time of his offense required that his sentence include a mandatory special parole term of at least three years. Because the new section 841(b) (1) (A) eliminating the required special parole term was not enacted until five months after Congelliere committed his offense, the district court properly sentenced him to a 30 year special parole term under the old section 841(b) (1) (A). See 1 U.S.C. § 109; Rewald, 835 F.2d at 216.1
AFFIRMED.
The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Congelliere relies on United States v. Torres, 880 F.2d 113 (9th Cir. 1989) to support his contention that the provision for a mandatory special parole term under the old section 841(b) (1) (A) does not apply to him. In Torres, however, the defendant committed his offense in February 1987 and was sentenced in May 1987 and thus it was clear that because the mandatory special parole provision of section 841(b) (1) (A) was removed from the statute in October 1984, the defendant could not be sentenced to a special parole term. Torres, 880 F.2d at 114
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