United States of America, Plaintiff-appellee, v. Bob Bullard, Defendant-appellant.united States of America, Plaintiff-appellee, v. Jeffrey Lee Hunt, A/k/a Jim Hunt, A/k/a Bubby, Defendant-appellant.united States of America, Plaintiff-appellee, v. Herbert Dean Oxendine, Defendant-appellant, 867 F.2d 609 (4th Cir. 1989)Annotate this Case
Todd Clark Conormon, Assistant Federal Public Defender (William E. Martin, Federal Public Defender, on brief), for appellants.
Joseph Douglas Wilson (Deborah Watson, Samuel Rosenthal, Chief, Appellate Section, Criminal Division, U.S. Department of Justice; Margaret P. Currin, United States Attorney, on brief), for appellee.
Before DONALD RUSSELL and WILKINSON, Circuit Judges, and TERRENCE WILLIAM BOYLE, United States District Judge for the Eastern District of North Carolina, sitting by designation.
Appellants Bullard, Hunt and Oxendine were convicted of cocaine distribution under 21 U.S.C. § 841(a) (1) and sentenced under 21 U.S.C. § 841(b) (1) (C). Under Sec. 841(b) (1) (C), defendants received not only prison terms and fines, but special parole terms. Appellants claim that after Congress deleted the provisions for special parole as part of the Sentencing Reform Act of 1984, there was no provision for special parole under Sec. 841(b) (1) (C) and thus that their three year special parole terms must be vacated.
Appellants were indicted for acts occurring before November 1, 1987. Because the provisions repealing special parole did not become effective until November 1, 1987, we affirm the sentences imposed by the district court.
Appellants entered guilty pleas to charges of cocaine distribution. They also agreed to sentences including varying prison terms, fines, and respective three-year special parole terms. At the November, 1987 sentencing hearing, however, appellants argued that the special parole term was no longer a sentencing option under 21 U.S.C. § 841(b) (1) (C) because the offenses occurred after October 27, 1986, the date on which Congress passed the Anti-Drug Abuse Act of 1986.
Before passage of the Sentencing Reform Act of 1984 and the Anti-Drug Abuse Act of 1986, 21 U.S.C. § 841(b) (1) (C), then Sec. 841(b) (1) (B), provided for the mandatory imposition of special parole terms for convictions involving the distribution of cocaine, regardless of the amount. A special parole term is a form of parole administered by the United States Parole Commission. See 28 C.F.R. Sec. 2.57 (1988). On October 12, 1984, Congress, through the Sentencing Reform Act of 1984, abolished the Parole Commission. See Sen.Rep. No. 225, 98th Cong., 2d Sess. 56 (1984), reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3239. Congress also amended Sec. 841(b), under which defendants were sentenced, to delete all references to the special parole term. Pub. L. No. 98-473, 224(a), reprinted in 1984 U.S.Code Cong. & Ad.News (98 Stat.) 1987, 2030. Congress provided that the effective date of these deletions was to be November 1, 1986. Pub. L. No. 98-473, 235(a) (1), reprinted in 1984 U.S.Code Cong. & Ad.News (98 Stat.) 1987, 2031-2032. This date was later extended to November 1, 1987. Sentencing Reform Act of 1985, Pub. L. No. 99-217, Sec. 4, reprinted in 1985 U.S.Code Cong. & Ad.News (99 Stat.) 1728.
On October 27, 1986, Congress again amended the code by striking out the term "special parole" whenever it appeared and replacing it with the term "supervised release." Supervised release is imposed by the court at the time of sentencing, either at the discretion of the court or pursuant to statute. Decisions as to the appropriateness and length of supervised release are based on the same guidelines the court considers in imposing any sentence.
Appellants were indicted for acts occurring before November 1, 1987. The issue in this case is thus whether, between October 27, 1986 and November 1, 1987, the statute provided for a three-year special parole term for distribution of less than one kilogram of cocaine.
We hold that the terms of mandatory special parole were proper in this case. On October 12, 1984, when Congress deleted the sentences pertaining to special parole terms, it explicitly stated that the effective date of the deletions was November 1, 1986. Congress later extended this date to November 1, 1987. Similarly, supervised release was not an option before November 1, 1987. U.S. v. Whithead, No. 87-5093 (4th Cir. May 24, 1988). The effect of the repeal of the special parole term, therefore, was not immediate. It did not become effective until thirty-six months after the Sentencing Reform Act of 1984, P. Law 98-473, was enacted. U.S. v. Fernandez-Dilone, 668 F. Supp. 245, 247-8 (S.D.N.Y. 1987). The repeal was not operative at the time of appellants' offenses.
The legislative history of the Sentencing Reform Act of 1984 supports this interpretation of the statute. The Senate Report states that "The title will apply to any offense or other event occurring on or after the effective date. A sentence imposed before the effective date of the guidelines as to an individual imprisoned or on probation or parole on that date would not be affected by this title." Sen.Rep. No. 225, 98th Cong., 2d Sess. 189 (1984), reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3372. Appellants' sentences are therefore not affected.1
The judgment of the district court is
Appellants' reliance on United States v. Byrd, 837 F.2d 179 (5th Cir. 1988) and United States v. De Los Reyes, 842 F.2d 755 (5th Cir. 1988) is misplaced. Although in Byrd the court held that Congress had authorized supervised release only for violations of Sec. 841(a) (1) occurring after November 1, 1987, imposition of special parole, not supervised release, is at issue in this case. In De Los Reyes the court did comment in footnote 3 that it was not clear whether under subsection 841(b) (1) (A), which governs sentences for distribution of one kilogram or more of cocaine, a special parole term could be imposed. However, appellants were sentenced under Sec. 841(b) (1) (C), not Sec. 841(b) (1) (A). Unlike Sec. 841(b) (1) (A), which was added in 1984 and never authorized special parole, Sec. 841(b) (1) (C) prior to 1984 had been Sec. 841(b) (1) (B) which authorized special parole