Unpublished Disposition, 911 F.2d 739 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 911 F.2d 739 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Francisco ORNELAS, Defendant-Appellant.

No. 89-10496.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 20, 1990.* Decided Aug. 22, 1990.

Before TANG, ALARCON and WIGGINS, Circuit Judges.


Francisco Ornelas, appearing pro se, appeals the denial of his Fed. R. Crim. P. 35(a) motion for correction of his sentence. Ornelas was convicted of possession, importation, and conspiracy to possess with intent to distribute over 100 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a) (1), 841(b) (1) (B) (vii), 846, 960(a) (1), and 960(b) (2) (G). He contends that the district court erred by amending his sentence to impose two concurrent terms of supervised release in lieu of special parole terms because the relevant statutes precluded any term of post-incarceration supervision. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.1 

We review the legality of a sentence de novo. United States v. Marco L., 868 F.2d 1121, 1123 (9th Cir.), cert. denied, 110 S. Ct. 369 (1989).

Under sections 1002 and 1302 of the Anti-Drug Abuse Act of 1986 (Act),2  a district court, in sentencing a first-time drug offender under 21 U.S.C. §§ 841(b) (1) (B) or 960(b) (2) must also "include a term of supervised release of at least four years." Unlike other provisions of the Act which took effect on November 1, 1987, sections 1002 and 1302 do not carry an express provision for their effective dates. See United States v. Torres, 880 F.2d 113, 115 (9th Cir. 1989), cert. denied, 110 S. Ct. 873 (1990).

In the absence of an express effective date, section 1002 took effect on the date of the statute's enactment, October 27, 1986. Id.; United States v. Meyers, 847 F.2d 1408, 1415 (9th Cir. 1988). Under general principles of statutory construction, we also construe the effective date of section 1302 to be October 27, 1986. See Torres, 880 F.2d at 115.

Ornelas committed his crimes on or about January 16, 1987, and was originally sentenced on August 12, 1987. All of these events occurred after the Act's effective date.3  Therefore, the district court did not err by imposing the statutorily mandated four-year terms of supervised release. See Torres, 880 F.2d at 115.



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


The government contends that this court lacks jurisdiction over Ornelas' appeal because he filed his notice of appeal more than ten days after the denial of his motion to correct sentence. Ornelas' motion for reconsideration was denied on September 8, 1989. He filed his notice of appeal on September 27, 1989. The district court entered an order finding excusable neglect and extending the time to appeal on April 12, 1990. Therefore, this court has jurisdiction over the appeal. See Fed. R. App. P. 4(b)


Pub. L. No. 99-570, Secs. 1002, 1302 (1986), 100 Stat. 3207-2 to 3207-4, 3207-15 to 3207-18 (codified at 21 U.S.C. §§ 841(b) (1) and 960(b)


Ornelas appears to be relying on Pub. L. No. 98-473 (1984), which amended earlier versions of 21 U.S.C. §§ 841(b) (1) and 960(b) by deleting the provisions for special parole terms. This amendment was superseded by the Act, which further amended sections 841(b) (1) and 960(b) to include mandatory terms of supervised release