Unpublished Disposition, 931 F.2d 60 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 931 F.2d 60 (9th Cir. 1987)

Benjamin Lee ROSE, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.

No. 89-16679.

United States Court of Appeals, Ninth Circuit.

Submitted April 19, 1991.* Decided April 23, 1991.

Before POOLE, D.W. NELSON and NOONAN, Circuit Judges.


Benjamin Lee Rose, a federal prisoner, appeals pro se the district court's order denying in part his 28 U.S.C. § 2255 motion to modify his sentence. We review de novo, United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989), and we reverse and remand.

Rose contends that the district court erred in sentencing him to a term of supervised release. The government properly concedes that Rose's contention has merit.

Section 1002 of the Anti-Drug Abuse Act of 1986 ("ADAA"), Publ.L. No. 99-570, 110 Stat. 3707-1, 3707-4 (1986), became effective on its date of enactment, October 27, 1986. United States v. Torres, 880 F.2d 113, 115 (9th Cir. 1989), cert. denied, 110 S. Ct. 873 (1990). Section 1002 deleted and rewrote sections 841(b) (1) (A) & (B) to provide for a term of supervised release rather than a term of special parole. Id.

Here, Rose was sentenced on August 25, 1987 for offenses committed in June and July 1986. As the government concedes, Rose's sentence should have included a term of special parole rather than a term of supervised release. Id. Accordingly, we reverse and remand for resentencing. Id.1 



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 panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


On appeal, the government contends that the district court erred in vacating the special assessment fee imposed against Rose pursuant to 28 U.S.C. § 3013. In vacating the fee, the district court relied on United States v. Munoz-Florez, 863 F.2d 654, 661 (9th Cir. 1988), where this court held that section 3013's special assessment provisions were unconstitutional. Because Munoz-Florez was overruled by the Supreme Court, United States v. Munoz-Florez, 110 S. Ct. 1964 (1990), imposition of a special assessment fee is proper. Because we remand for resentencing, the district court should address this issue