Unpublished Disposition, 884 F.2d 1396 (9th Cir. 1989)

MEMORANDUM^** 

Raul G. Villasenor appeals the sentence imposed by the district court after he pleaded guilty to distributing methamphetamine in violation of 21 U.S.C. § 841(a) (1) (1982). On July 1, 1988, the court sentenced Villasenor to a nine year prison term and a four year special parole term. Villasenor timely appealed. We have jurisdiction under 28 U.S.C. § 1291 (1982). Because we conclude that the penalty provisions in effect at the time Villasenor committed his offense did not authorize imposition of a special parole term, but instead required imposition of a term of supervised release, we vacate the sentence imposed and remand for resentencing.

DISCUSSION

Villasenor challenges the imposition of a four year special parole term. The Sentencing Reform Act of 1984 (SRA), Pub. L. No. 98-473, 98 Stat.1987 (codified as amended at 18 U.S.C. §§ 3551-3742 and 28 U.S.C. §§ 991-998 (Supp.V 1987)), was in effect on the date of Villasenor's sentencing. See United States v. Rewald, 835 F.2d 215, 216 (9th Cir. 1987) (the SRA became effective on November 1, 1987). The Sentencing Act of 1987, however, provides that the sentencing guidelines do not apply to conduct occurring prior to the effective date of the SRA. Pub. L. No. 100-182, Sec. 2, 101 Stat. 1266, 1266 (1987). The criminal conduct to which Villasenor pleaded guilty occurred on June 15, 1987, prior to the effective date of the SRA.

The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 801-970 (1982 and Supp.V 1987), established five schedules of controlled substances and specified the initial classification of substances in each schedule. Id. Sec. 812(a). The Act authorizes the Attorney General to transfer substances between schedules in accordance with certain criteria and procedures. Id. Sec. 811(a). In 1974, acting under authority delegated by the Attorney General, the Drug Enforcement Agency reclassified methamphetamine from a schedule III controlled substance to a schedule II substance. See 21 C.F.R. Sec. 1308.12(d) (1988). Thus at the time of Villasenor's criminal conduct, methamphetamine was a schedule II controlled substance.

21 U.S.C. § 841(b) contains the penalty provisions for violations of 21 U.S.C. § 841(a) (1). Prior to 1984, section 841(b) (1) (B) required that first time offenders like Villasenor receive a minimum special parole term of two years.¹  The Comprehensive Crime Control Act of 1984 amended the penalty provisions of section 841. Pub. L. No. 98-473, Sec. 502, 98 Stat.1976, 2068-69 (1984) (codified at 21 U.S.C. § 841(b) (Supp. III 1985)). The amended statute provided that offenders such as Villasenor receive a minimum special parole term of three years.²  See 21 U.S.C. § 841(b) (1) (B) (Supp. III 1985). The increased penalty provisions became effective upon their enactment on October 12, 1984. United States v. Meyers, 847 F.2d 1408, 1414 (9th Cir. 1988).

The penalty provisions were amended again by section 1002 of the Anti-Drug Abuse Act of 1986. Pub. L. 99-570, Sec. 1002, 100 Stat. 3207, 3207-2-07-4 (codified at 21 U.S.C. § 841(b) (Supp. IV 1986)). Section 841(b) was amended to provide that a person convicted of distribution of methamphetamine shall receive "a term of supervised release of at least three years in addition to" a term of imprisonment of not more than twenty years. 21 U.S.C. § 841(b) (1) (C) (Supp. IV 1986). We have previously held that "section 1002 took effect on the date of its enactment, October 27, 1986." United States v. Torres, No. 87-5342, slip op. 7847, 7851 (9th Cir. July 20, 1989); see also Meyers, 847 F.2d at 1415. This version of section 841(b) was in effect until the SRA took effect on November 1, 1987. The SRA, however, cannot be applied to conduct occurring prior to its effective date.

Villasenor's crime occurred on June 15, 1987. Under the version of section 841(b) in effect at that time, no statutory authorization existed for a special parole term for offenders such as Villasenor. Villasenor correctly argues that the special parole term of his sentence is not authorized and must be vacated. The 1986 amendments, however, required a supervised release term of at least three years for a first time offender. Therefore Villasenor's sentence should have included a mandatory term of supervised release, rather than a term of special parole.

Villasenor's remaining contentions on appeal are meritless. He is not entitled under Fed. R. Crim. P. 32 to discovery of materials provided to the probation officer for use in preparing the presentence report in this case. The district court properly disclosed the presentence report to Villasenor. Moreover, Villasenor has not shown that the district court relied on any improper or inaccurate information in making the sentencing determination. See United States v. Miller, 588 F.2d 1256, 1269 (9th Cir. 1978) (Browning, J., concurring), cert. denied, 440 U.S. 947 (1979).

CONCLUSION

We VACATE the sentence imposed and REMAND for resentencing.