Unpublished Disposition, 937 F.2d 614 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 614 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Wuthichai KACHANON, aka: Bill, aka: Ming, Defendant-Appellant.

No. 87-5087.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 14, 1990.Submission Vacated Nov. 29, 1990.Resubmitted June 13, 1991.Decided July 5, 1991.

Before FLETCHER, WIGGINS and RYMER, Circuit Judges.


SUPPLEMENTAL MEMORANDUM* 

By an order filed on November 29, 1990, we vacated submission of the sentencing issue in this case pending decision by the United States Supreme Court in Gozlon-Peretz v. United States, 111 S. Ct. 840 (1991). The Supreme Court having decided that case, the sentencing issue is submitted. We affirm Wuthichai Kachanon's sentence, including the special parole term.

The date of the offense determines the law under which a defendant is sentenced. See id. at 846. Wuthichai Kachanon committed the crime in question in April 1986, so we need not consider the supervised release provisions of either the Sentencing Reform Act of 1984, the effective date of which was November 1987, nor Sec. 1002 of the Anti-Drug Abuse Act of 1986, which Gozlon-Peretz tells us went into effect in October 1986. 111 S. Ct. at 846-47.

The relevant version of the statute, then, is the one codified in Supplement III of the United States Code (1985). It authorizes the imposition of a special parole term for offenses involving less than 100 grams of heroin, 21 U.S.C. § 841(b) (1) (B) (Supp. III 1985), but not for offenses involving 100 grams or more, 21 U.S.C. § 841(b) (1) (A) (Supp. III 1985). The Court recognized this anomaly in Gozlon-Peretz, 111 S. Ct. at 844 (noting "peculiar situation in which small-time offenders were subject to special parole, while big-time offenders were not").

The dispositive issue is the quantity of heroin involved. The district court sentenced Wuthichai Kachanon on the basis of count 11 involving less than 100 grams of heroin.1  The amount involved, therefore, puts this case under Sec. 841(b) (1) (B), which mandates the imposition of a special parole term.

AFFIRMED.

 *

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

At trial, the parties stipulated to a quantity of 50.6 grams. The presentence report, to which Kachanon did not object, reflects the same quantity. Although the government represented at the sentencing hearing that the quantity was approximately 60 grams, the difference in quantities is immaterial here because both are less than 100 grams and Kachanon clearly had notice of that fact at both trial and sentencing