Petition — Cates v. United States

79-5555

IN THE

COURT OF THE UNITED STATES

SUPREME

ocTO % TERM 1979

NO.

ALBERT IRVIN CATES,

petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

———

tion for a Writ of Certiorari to the

Peti

Untied States Court of Appeals for the Fifth Circuit

——————

Albert Irvin Cates, Pro Se

P.O. Box 5949

Austin, Texas 78763

SUBJECT INDEX

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APPENDIX B-Order on Petition for Rehearing..........

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TABLES OF CASES

Fassette v. U.S., 444 F.Supp. 1245 (C.D. CA 1978)

.S. v. Burman, (4th Cir. 1979)

. v. Dankert, 507 F.2d 190 (5th Cir. 1975)

. v. Jacobson, 578 F.2d 863 (10th Cir. 1978)

. Jacquinto, 464 F.Supp. 728 (E.D. Penn. 1979)

. v. Mearns, 461 F.Supp. 641 (Del. 1978)

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. v. Ortiz, 488 F2d 175 (C.D. Cal. 1973)

Other Authorities

21 U.S.C. §963

28 U.S.C., Section 1254(1)

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RECEIVED

OCT 23 1979

-———

IN THE

OFFICE OF THE CLERK

SUPREME COURT, U.S.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1979

NO. fa - 264

ALBERT IRVIN CATES,

Petitioner

Vv.

UNITED STATES OF AMERICA

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ALBERT IRVIN CATES, prays that a writ of certiorari

issue to review the judgement of the United States Court of

Appeals for the Fifth Circuit entered in this cause July 3,

1979, petition for rehearing denied September 24, 1979.

REFERENCE TO OPINION BELOW

The opinion and order of the United States Court of

Appeals for the Fifth Circuit are not reported. Copies of

the opinion and the order denying rehearing are appended

hereto in Appendix, infra, A and B.

JURISDICTION

The opinion and judgement of the United States Court

of Appeals for the Fifth Circuit sought to be reviewed was

entered on July 3, 1979; timely filed Motion for Rehearing

was denied September 24, 1979. The jurisdiction of this

Court is involed under 28 U.S.C., Section 1254(1).

QUESTIONS PRESENTED

Ba Is it permissible to impose a special parole term as

part of punishment for conviction under 21 U.S.C. §963?

ai If imposition of such a special parole term is permis-

sible, is it mandatory to impose such a parole term in the

event a criminal defendant is sentenced to a prison term

under 21 U.S.C. §963?

oh

STATUTORY PROVISIONS INVOLVED

21 U.S.C. §960 (b)(1): In the case of a violation under

subsection (a) of this section with respect to a narcotic

drug in schedule I or II, the person committing such violation

shall be imprisoned not more than fifteen years, or fined

not more than $25,000, or both. If a sentence under this

paragraph provides for imprisonment, the sentence shall

include a special parole term of not less than three years

in addition to such term of imprisonment.

21 U.S.C. §963: Any person who attempts or conspires to

commit any offense defined in this subchapter is punishable

by imprisonment or fine or both which may not exceed the

maximum punishment prescribed for the offense, the commission

of which was the object of the attempt or conspiracy.

STATEMENT OF THE CASE

Petitioner was indicted in a multi-count indictment

from the Northern District of Texas. Upon a Rule 20 Motion,

the case was transferred to the Western District of Texas,

Austin Division, wherein the Petitioner pled guilty to one

(1) count alleging a violation of 21 U.S.C. 963. A sentence

of two (2) years imprisonment was imposed; in addition, the

Court imposed a three (3) year special parole term, which

the Court characterized as mandatory (Trans. B.. £5).

REASONS FOR GRANTING WRIT

I, SPECIAL PAROLE TERMS ARE NOT PERMISSIBLE

Three Circuit Courts of Appeal have addressed the issues

presented here for review. United States v. Dankert 507 F2d

190 (5th Cir. 1975); United States v. Jacobson 578 F2d 863

(10th Cir. 1978 ), U.S. cert. den. in 99 S.Ct. 324 (1978) ;

United States v. Burman (4th Cir. 1979). (These cases either

address themselves to 21 U.S.C. §963 or else 21 U.S.C. §846;

however, these are analagous statutes. Thus, as analysis of

one is tantamount to analysis of the other, cases involving

either statute will be employed in this petition without

further reference to the particular statute.) All three

Courts of Appeal have concluded that a imposition of special

parole term under 21 U.S.C. §963 is permissible. Neverthe-

less, all three of these decisions are set forth in summary

opinions; the rationale and legal bases for the conclusions

of the Courts are not enunciated.

This lack of rationale can be attributed to the fact

that ne logical foundation premises these decisions. None

of the opinions examine Congressional intent; none examine

the grammatical and syntactical construction of the statutory

language.. Findings of fact in these areas would indeed un-

dermine the conclusions of the Courts of Appeal.

Such findings of fact have been made by a competent

Court of Law, however. The seminal case in this regard is

Fassette v. United States 444 F.Supp.1245 (C.D.Cal.1978).

In Fassette, the Court examined both Congressional intent

and statutory construction, finding that imposition of a

special parole term was illegal. Relying on Fassette, two

ether Courts have reached the same conclusion on identical

findings of law ans fact. See: United States v. Mearns 461

F.Supp. 641 (Del. 1978). and United States v. Jacquinto 464

F.Supp. 728 (E.D. Penn. 1979). The opinions from these Bis-

trict Courts are articulate and well-reasoned, each striking

deeply into the inadequacies of the decisions from the various

Courts of Appeal previously mentioned.

The effect of the decisions allowing the imposition of

a special parole term under 21 U.S.C. §963 is to permit, with-

out statutory guidance, the same punishment for conspiracy as

for the substantive offense which was the object of the con-

spiracy. In other words, this allows punishment for a crime

which was never alleged or tried; such judicial findings of

guilt erode the most basic concepts of due process.

Further, the Government has apparently adopted a policy

of "no appeal" from those district court decisions which have

aie

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found the special parole term illegal. Therefore, this has

created a de facto conflict between the Circuits; this in-

equitable and uneven distribution of justice demands resolu-

tion in the form of review by this Honorable Court.

II. EVEN IF PERMISSIBLE A SPECIAL PAROLE TERM IS NOT MANDA-

TORY UNDER 21 U.S.C. §963

Even if it is accepted that a special parole term is

permissible if imposed together with a prison term under 21

U.S.C. §963, it does not follow that such a special parole

term is mandatory. Although a special parole term is mandatory

under sentence for the offense of importation, punishment for

the inchaote offense of consporacy to import under 21 U.S.C.

§963 merely "may not exceed the maximum punishment" for the

substantive offense; this is not the equivalent of stating

that sentencing for conspiracy must be identical to the punish-

ment for the substantive offense. No Court has ever directly

confronted this issue.

In the present case, the trial judge sentenced petitioner

under the misapprehension that a special parole term was manda-

tory (Trans. p.15). Sentencing under such conditions is illegal

because the judge's discretion is unduly fettered by this mis-

comprehension of state of law. (United States v. Ortiz 488

F2d 175 (C.D. Cal. 1973).

CONCLUSION

For the reasons set forth above, petition for writ of

certiorari should be granted and a further hearing on the merits

the judgment of the United States Court of Appeals for the Fifth

Circuit should be reversed.

Respectfully submitted,

ld He, /, rca (sles

P.O. Box 5949

Austin, Texas 78763

Petitioner, Pro Se

oe

APPENDIX A Ci.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 78-3664

- “ Summary Calendar*

ALBERT IRVIN CATES,

FIle

OCT 4 4979

Dd RT

PUBLISH

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent~Appellee.

Appeal from the United States District Court for the

Western District of Texas

( JULY 3, 1979 )

BEFORE CLARK, GEE and HILL, Circuit Judges.

PER CURIAM:

We affirm for the reasons stated in the trial court's order

of yvunc 29, 1978. Cates, a pro-se appellant, urges us to

disregard our earlier opinion in United States v. Dankert,

507 F.2d 190 (5th Cir. 1975).

he may be unaware, one panel of our court does not overrule

another.

AFFIRMED.

It is squarely in point and, as

) FO URIT s’ TATES COURT OF A

FOR “1a FIFTH CIRCULY

_ . U.S. COURT OF APPEALS

NO. 78-3664 FILED

SEP 2 * 1979

GILBERT, F. GANUCHEAU

ALBERT IRVIN CATES, CLERK

*

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens

Casualty Co. of New York, et al., 5 Cir. 1970, 431 F.2d

409, Part I.

A true copy

CURT ET oe Geese, cones

haste U.S. 69, od 38 base gis

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court for the

Western District of Texas

ON PETITION FOR REHEARING

( September 24, 1979 )

before CLARK, GEE and HILL, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the same is

hereby d sured °

ENTERED FO er a THE COURT:

a

ied

pre ae ea |

YP Ieeesssa 4

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXA;3

sd AUSTIN DIVISION

UNITED STATES OF’ AMERICA *

*

V. * CRIMINAL NO. A-77-CR-4

*

ALBERT IRVIN CATES “ RECEIVED

NOV 19 1979

ORDER

Came on before the Court Defendant's motion to correct an eg

sentence alleging that Defendant was improperly assessed a special

parole term of three years in addition to his sentence of two years’

confinement in the penitentiary. Defendant alleges that he was con-

victed and sentenced under 21 U.S.C. § 846, when in fact the record

reflects that he was convicted and sentenced under 21 U.S.C. § 963.

Defendant relies on a case out of the Central District of Cali-

fornia that holds that special parole terms are not assessable as

part of the permissible range of punishments under 21 U.S.C. § &6.

Fassette v. United States, 444 F. Supp. 1245 (C.D. Calif. 1978).

Defendant's reliance on the Fassctte case is misplaced.

In the first place, the Court emphasizes that Defendant was

convicted and sentenced under 21 U.S.C. § 963, not § 846. With

regard to 21 U.S.C. § 963, the Fifth Circuit has explicitly held

that a special parole term may be assessed under that statute.

United States v. Dankert, 507 F.2d 190 (Sth Cir. 1975). The Dankert

case is, of course, a binding precedent upon this Court.

The Court notes in passing that the validity of the Fassette

holding is in doubt even with regard to 21 U.S.C. § 846 given the

number of reported cases which have upheld, although perhaps not

explicitly addressing the question, sentences under § 846 which

included special parole terms. United States v. DeLaFuente, 550

F.2d 309 (5th Cir. 1977). §S also, United States v. Armedo-Sar-

miento, 545 F.2d 785 (2d Cir.g1976), cert. denied, 430 U.S. 917

(1977); United States v. Wiley, 519 F.2d 1348 (2a Cir. 1975);

Timmreck v. United States, 423 F. Supp. 537 (E.D. Mich. 1976);

United States v. Merlino, soar. Supp. 533 (E.D. Pa. 1975).

Accordingly, the motion €o vacate an illegal sentence is DENIED.

Entered this 29 day of June 1978, at Austin, Texas.

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