Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1984)

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US Court of Appeals for the Ninth Circuit - 924 F.2d 1063 (9th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,v.Gilbert Dewitt ISOM, Defendant-Appellant.

No. 90-50231.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 21, 1990.* Decided Feb. 4, 1991.

Before HUG, WILLIAM B. NORRIS and NOONAN, Circuit Judges.


MEMORANDUM** 

Pro se defendant-appellant Gilbert Dewitt Isom pled guilty on November 30, 1982 to distribution of cocaine and to aiding and abetting the distribution of cocaine, in violation of 21 U.S.C. §§ 841(a) (1) and 18 U.S.C. § 2(a) (1982). On December 17, 1982, Isom was sentenced to six years incarceration and received a five-year term of special parole. On appeal, Isom challenges the denial of his Fed. R. Crim. P. 35 motion to strike the special parole portion of his sentence. We affirm.

Isom's principal argument is that section 841(b) (1) (A) does not mandate a term of special parole. It is true that Congress repealed the requirement of a special parole term under the provision effective October 12, 1984. See, e.g., United States v. Torres, 880 F.2d 113, 114 (9th Cir. 1989) (per curiam) (discussing amendments to section 841(b) (1) (A)), cert. denied, 107 L. Ed. 2d 956 (1990); United States v. Brickell, 872 F.2d 307, 308-09 (9th Cir. 1989) (per curiam) (same). Because subsequent amendments to section 841(b) (1) (A) have not been given retroactive effect, see United States v. Garcia, 877 F.2d 23, 24-25 (9th Cir. 1989), we must apply section 841(b) (1) (A) as it existed at the time of Isom's sentence. In 1982, section 841(b) (1) (A) provided for a mandatory special parole term.1  We therefore conclude the district court properly imposed a five-year term of special parole. We find Isom's reliance on United States v. Phungphiphadhana, 640 F. Supp. 88 (D. Nev. 1986), unpersuasive as that case did not involve the 1982 version of section 841(b) (1) (A).

Finally, Isom argues the district court erroneously ruled on his Rule 35 motion before he could file a reply brief. Isom does not cite any authority that he was entitled to file a reply brief on the motion. We conclude that he was not denied any meaningful opportunity to present his contentions.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and 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

 1

The 1982 version of section 841(b) (1) (A) provided in pertinent part:

Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a special parole term of at least 3 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a special parole term of at least 6 years in addition to such term of imprisonment.