Petition — Sepulveda v. United States

Supreme Court, yg

a"

FI LE D

79-5584

NOV 2 1979

‘

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 79-

SANTOS SEPULVEDA,

Petitioner,

-V. —

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

_ FOR THE SECOND CIRCUIT

STEVEN LLOYD BARRETT

PHYLIS SKLOOT BAMBERGER

WILLIAM E. HELLERSTEIN

The Legal Aid Society

Federal Defender Services Unit

531 United States Courthouse

Foley Square

New York, New York 10007

(212) 732-2971

Attorneys for the Petitioner.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 79-

SANTOS SEPULVEDA,

Petitioner,

-Vv. =

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

TO THE HONORABLE, THE CHIEF JUSTICE OF THE UNITED STATES

AND THE ASSOCIATE JUSTICES OF THE UNITED STATES SUPREME COURT.

Petitioner, Santos Sepulveda, respectfully prays that a

writ of certiorari issue to review the judgment of the United

States Court of Appeals for the Second Circuit entered in this

proceeding on June 26, 1979, affirming the denial by the United

States District Court for the Eastern District of New York of a

motion made pursuant to 28 U.S.C. §2255 challenging the legality

of a special parole term imposed against petitioner upon his

conviction under 21 U.S.C. §846.

OPINIONS BELOW

The Court of Appeals affirmed the judgment below in a sum-

mary Opinion included in the judgment and order dated June 26,

1979, which is annexed hereto as Appendix A. The district

court filed three unpublished opinions relevant to petitioner's

claim, which are reproduced as Appendices D, E, and F hereto.

JURISDICTION

The judgment of the Court of Appeals was entered on June

26, 1979; as noted, a copy of the judgment is annexed hereto as

Appendix A. A timely petition for rehearing with suggestion

for rehearing en banc was filed, and both the panel and the

full court denied that application on October 5, 1979; the

orders thereupon are annexed as Appendices B and C.

QUESTION PRESENTED

Whether petitioner's sentence of a special parole term in

addition to imprisonment upon his conviction under 21] U.S.C.

§846 was illegal, in that this section authorizes only a fine

and/or imprisonment as punishment.

STATUTES INVOLVED

1. 21 U.S.C. §846. ATTEMPT AND CONSPIRACY

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 the

conspiracy. 5

2. 21 U.S.C. §841(b) (1) (A). PROHIBITED ACTS A -- UNLAWFUL

ACTS: Penalties

In the case of a controlled substance in

schedule I or II which is a narcotic drug,

such person shall be sentenced to a term of

imprisonment of not more than 15 years, a fine

of not more than $25,000, or both. If any per-

son commits a violation after one or more prior

convictions of him for an offense punishable

under this paragraph, or for a felony under

any other provision of this subchapter or

subchapter II of this chapter or other law

of the United States relating to narcotic

drugs, marihuana, or depressant or stimulant

substances, have become final, such person

shall be sentenced to a term of imprisonment

of not more than 30 years, a fine of not more

than $50,000, or both. Any sentence imposing

a term of imprisonment under this paragraph

shall, in the absence of such a prior convic-

tion, impose a special parole term of at

least 3 years in additio»s to such term of

imprisonment and #hall, if there was such a

prior conviction, impose a special parole

term of at least 6 years in addition to such

term of imprisonment.

36 21 U.S.C. §84l(c). PROHIBITED ACTS A -- UNLAWFUL ACTS:

Special Parole Term

A special parole term imposed under this

section or section 845 of this title may be

revoked if its terms and conditions are vio-

lated. In such circumstances the original

term of imprisonment shall be increased by

the period of the special parole term and

the resulting new term of imprisonment shall

not be diminished by the time which was spent

on special parole. A person whose special

parole term has been revoked may be required

to serve all or part of the remainder of the

new term of imprisonment. A special parole

term provided for in this section or section

845 of this title shall be in addition to,

and not in lieu of, any other parole provided

for by law.

STATEMENT OF THE CASE

On May 7, 1976, in the United States District Court for

the Eastern District of New York, petitioner Santos Sepulveda

was sentenced, upon his plea of guilty to conspiring to vio-

late the narcotics laws, 21 U.S.C. §846, to a prison term of

five years to be followed by a special parole term of five

years.

On April 25, 1978, petitioner filed a pro se motion pur-

Suant to 28 U.S.C. §2255 seeking relief from the five-year

special parole term. In this and his later-filed petition

for rehearing (June 28, 1978), petitioner contended that the

inclusion of a special parole term in a sentence under 21

U.S.C. §846 is illegal because a special parole term, as dis-

tinct from fine or imprisonment, is not specified as a proper

3

form of punishment in that conspiracy statute. He argued that

the reference for purposes of sentencing inthat statutory sec-

tion to 21 U.S.C. §841 was limited to the authorized fine or

imprisonment, and did not encompass the special parole provi-

sion of 21 U.S.C. §841. Thus, the inclusion of special parole

in a sentence under 21 U.S.C. §846 was unathorized and illegal.

In decisions and orders filed on June 15 and August 1, 1978,

the district judge denied the requested relief and dismissed the

petition. The court found that the reference in 21 U.S.C. §846

to the substantive statute -- here, 21 U.S.C. §841 -- author-

ized any sentence legal under the provisions of the referenced

section, and 21 U.S.C. §841 required, in the case of a Schedule

I narcotic, a special parole term of at least three years in

addition to any prison sentence. Petitioner appealed and sought

permission to proceed in forma pauperis. In a decision and

order entered December 6, 1978, the district judge granted the

petitioner leave to proceed in forma pauperis in the Court of

Appeals.

The Legal Aid Society, Federal Defender Services Unit,

was thereafter appointed as counsel to petitioner. In the

brief for petitioner on appeal, it was argued that the inclu-

sion in petitioner's sentence of a special parole term under

21 U.S.C. §846 was illegal. Before petitioner's case was

argued, the Court of Appeals decided Bifulco v. United States,

F.2d » No. 79-2024, slip op. 2845 (2d Cir. May 30, 1979),

certiorari granted, U.8. » 48 U.S.L.W. 3241, No. 79-5010

(October 9, 1979). That case considered the precise issue pre-

sented in petitioner's appeal and reached a decision, adverse

to petitioner's claim, that a sentence under 21] U.S.C. §846

included a special parole term. See id., slip op. at 2847-

2852.*

*A copy of the Court of Appeals' decision in Bifulco is

annexed hereto as Appendix G.

Petitioner's case was thus affirmed on appeal on con-

straint of the Court of Appeals' recent decision in Bifulco.

In its summary opinion within the judgment of affirmance dated

June 26, 1979, the court held:

This is an appeal from an order denying a

motion made pursuant to 28 U.S.C. §2255

challenging the legality of a special parole

term that [the district court] imposed as

part of appellant's sentence on a plea of

guilty to conspiracy to distribute and pos-

sess with intent to distribute heroin in

violation of 21 U.S.C. §846. The only ques-

tion on appeal is whether the district court

had the power under that statute to impose a

special parole term. That question has been

answered in the affirmative by a recent de-

cision of this court, which was filed after

the submission of appellant's brief on this

appeal. See Alphonse Bifulco v. United

States, No. 79-2024, slip op. at 2845, 2847-

52 (2d Cir. May 30, 1979). That case is

entirely dispositive of this appeal, and we

therefore affirm the order of the district

court.

Application was thereupon made for rehearing, with sug-

gestion for rehearing en banc. It was argued that the deci-

sion in Bifulco failed to address the plain statutory language

of 21 U.S.C. §846, was decided incorrectly, and should be over-

ruled. The application for rehearing was denied on October 5,

1979.

While petitioner's rehearing application was pending, Mr.

Bifulco filed a pro se petition for writ of certiorari, and

certiorari was granted on October 9, 1979.

REASONS FOR GRANTING THE WRIT

| This Petition Presents The Question Identical To That

Raised in Bifulco v. United States, Which Is Currently

Pending Before This Court. ‘

That this petition raises an important question is manifest

from the fact that certiorari has already been granted on this

question in Bifulco v. United States, (Docket No. 79-5010, certio-

rari granted, October 9, 1979). Therefore, the petition for a

writ of certiorari should be granted; or alternatively, consider-'

5

1]

ation of this petition should be postponed until the Bifulco case

has been decided to allow disposition of this case in accordance

with that decision.

y There Is A Split Of Authority Among The Circuits With

Regard To The Applicability Of The Special Parole Term

Provision To Sentences Imposed Under 21 U.S.C. §846.*

A number of Circuit Courts of Appeals have concluded, as

did the Second Circuit in Bifulco, that special parole must be

included in a sentence imposed under 21 U.S.C. §846. See, e.g.,

United States v. Burman, 584 F.2d 1354 (4th Cir. 1978); United

States v. Jacobson, 578 F.2d 863 (10th Cir.), cert. denied, 99 S.

Ct. 324 (1978); United States v. Dankert, 507 F.2d 190 (5th Cir.

1975).

The Third Circuit has reached the opposite conclusion.

United States v. Mearns, F.2d (3d Cir. June 15, 1979).

And the District Court for the Central District of California

has issued the same ruling. Fassette v. United States, 444 F.

Supp. 1245 (C.D.Cal. 1978).

Thus, justice is not being dispensed uniformly in the vari-

ous federal courts. A ruling by this Court deciding whether or

not special parole is to be included in a sentence under 21 U.S.C,

§846 is therefore necessary and proper.

Ze The Second Circuit's Decision In Bifulco, Upon Con-

Straint Of Which Petitioner's Claim On Appeal Was

Rejected, Failed To Address The Plain Statutory

Language of 21 U.S.C. §846.**

*In its brief in response to Mr. Bifulco's pro se petition

for writ of certiorari, in which it acquiesced to the granting

of certiorari, the Office of the Solicitor General noted that

the current split of authority among the Circuits constituted

grounds for issuing the writ.

**Because this Court has agreed to review the Second Cir-

cuit's decision in Bifulco, petitioner will not herein advance

in full those claims which will be presented in the Bifulco case

respecting the proper interpretation of 21 U.S.C. §846, but in-

stead will outline only the most apparent anomoly in the Second

Circuit's decision relating to the plain statutory language.

Having been convicted on a plea of guilty to participating

in a narcotics conspiracy (21 U.S.C. §846), petitioner was sub-

ject to punishment which, in the words of that section, was to

consist of "imprisonment or fine or both which may not exceed

the maximum punishment prescribed for the offense, the commis-

sion of which was the object of the attempt or the conspiracy."

This statutory expression is sufficiently clear in its con-

text to warrant reliance on the language itself as the primary

determinant of Congressional intent in 21 U.S.C. §846.* The

express lanauage provides that a person convicted of conspiracy

under that section faces punishment consisting of a fine or im-

prisonment or both; special parole, which constitutes a third

form of punishment under 21 U.S.C. §841 (the substantive stat-

ute) is not enumerated. Accordingly, giving the words of the

provision their ordinary meaning for interpretative purposes, **

the only form of punishment authorized for violating 21 U.S.C.

§846 is a fine or imprisonment; a special parole term, not being

a fine, may be imposed only if it constitutes imprisonment.

That special parole is not considered imprisonment under

this statutory scheme is evident from its description in 21

U.S.C. §841(b) (1) (A). Special parole is there discussed sepa-

rately from fines and imprisonment, and is said to be “in addi-

tion to, and not in lieu of, any other parole provided for by

law." Consequently, special parole and imprisonment are intended

to be distinct and separate punishments. By its express refer-

ence to “imprisonment,” 21 U.S.C. §846 incorporates only that

*See, e.g., Greyhound Corp. v. Mt. Hood Stages, Inc., 437

U.S. 322, 536 (13985 Ernst and Ernst v. Hochfelder, 425 U.S.

185, 197 (1976); United States v. Bass, 407 U.S. 336, 339

(1971); G.A.F. Corp. Vv. Milstein, 453 F.2d 709, 716 (2d Cir.

1971), cert. denied, 406 U.S. 910 (1972).

**See, e.g., Burns v. Alcala, 420 U.S. 575, 580-581 (1975);

Banks v. Chicago Grain Trimmers Ass'n., 390 U.S. 459, 465 (1968);

Malat v. Riadet 363 U.s. 569, 571 (1966); Bouie v. City of

Columbia, 378 U.S. 347, 355-356 (1964); Kelly vy United states,

B31 F.2d 1144, 1148-1149 (2d Cir. 1975); United States v. Bla-

sius, 397 F.2d 203, 205-206 (2a Cir. 1968), cert. denied, 393

U.S. 1008 (1969).

which is imprisonment in the referenced section, 21 U.S.C. §841

-- an imprisonment separate and distinct from special parole.

Therefore, under the language of these sections alone, there is

no basis for imposing a term of special parole in connection with

a 21 U.S.C. §846 sentence.

Moreover, there is additional evidence in the statutory

language that special parole was not intended to be applicable

to 21 U.S.C. §846 sentences, but is to be imposed only under 21

U.S.C. §841 or §845 (distribution to persons under age 21). In

describing the operation of a special parole term, 21 U.S.C.

§84l1(c) makes specific reference to special parole only with

respect to 21 U.S.C. §§841 and 845:

A special parole term imposed under this sec-

tion or section 845 of this title may be re-

voked if its terms and conditions are violated.

--- A special parole term provided for in this

section or section 845 of this title shall be

in addition to, and not in lieu of, any other

parole provided for by law.

This conclusion is furthered by the fact that both 21 U.S.C.

§841 and §845, in distinction to §846, make explicit reference

to the inclusion of a special parole term to be imposed in con-

junction with any prison sentence. 21 U.S.C. §841(b) (1) (A) pro-

vides: "Any sentence imposing a term of imprisonment under this

paragraph shall ... impose a special parole term...." While 21

U.S.C. §846 refers to this section to determine the fine and/or

imprisonment limits, punishment for violating 21 U.S.C. §846 is

imposed under that paragraph itself, not under §841. Thus, the

quoted statement in §841(b) (1) (A) indicates an intention to -in-

clude a special parole term for a violation specifically of $841. |

As to §845, the contrast with §846 is perhaps even more reveal-

ing. 21 U.S.C. §845 separately incorporates the sentencing

limits of 21 U.S.C. §841 as to imprisonment and/or fine on the

one hand (21 U.S.C. §845(a) (1) and §845(b)(1)) and special parole

on the other (21 U.S.C. §845(a)(2) and §845(b)(2)). Thus, in the

section immediately preceding 21 U.S.C. §846, Congress explicitly

distinguished between imprisonment and/or fine and special parole,

enter .

; : . Gnited States Court of Appeals ' i

FOR THE

SECOND CIRCUIT

thereby indicating that reference to imprisonment and/or fine

i i t ial . _ Ata stated Term of the United States Court of Appeals for the Second

ee ee ee en ee ee ene POTERE Fee Circuit, held at the United States Courthouse in the City of New York, on the

vision. 26th day of June,

one thousand nine hundred and seventy-nine.

Present:

CONCLUSION

HONORABLE STERRY R. WATERMAN

For the foregoing reasons, a writ of certiorari should is- HONORABLE WILFRED FEINBERG

sue; alternatively, consideration of this petition should be HONORABLE WILLIAM H. TIMBERS

postponed until decision is rendered in Bifulco v. United States. Circuit Judges,

Respectfully submitted,

SANTOS SEPULVEDA,

STEVEN LLOYD BARRETT

PHYLIS SKLOOT BAMBERGER

WILLIAM E. HELLERSTEIN ‘ia -

The Legal Aid Society —— 78-2164

Federal Defender Services Unit 5 UNITED STATES OF AMERICA

531 United States Courthouse ;

Foley Square

New York, New York 10007

(212) 732-2971

Attorneys for the Petitioner.

Petitioner-Appellant,

Respondent-Appellee.

Appeal from the United States District Court forthe Eastern

District of New York.

This cause came on to be heard on the transcript of record from the

United States District Court for the Eastern District of

New York » and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged,

and decreed that the judgment of said District

Court be and it hereby is AFFIRMED.

This is an appeal from an order denying a motion made pursuant to

28 U.S.C. § 2255 challenging the legality of a special parole term

that Judge Bramwell imposed as part of appellant's sentence on a plea

of guilty to conspiracy to distribute and possess with intent to dis-

tribute Lerote in violation of 21 U.S.C. § 846. The only question on

appeal is whether the district court had the power under that statute

to impose a special parole term. That question has been answered in

the affirmative by a recent decision of this court, which was filed

after the!’ submission of appellant's brief on this appeal. See

Alphonse Bifulco v. United States, No. 79-2024, slip op. at 2845,

2847-52 (2d Cir. May 30, 1979). That case is entirely dispositive of

this appeal, and we therefore affirm the order of the district court.

11/1/1979 9

ee

TE y - WATERMAN

ULL. Veuulre

ILFRED FEINBERG

4

[Ad A ee

_ e

WILLIAM H. TIMBE

Circuit Judges

‘Gnited States Court of Appeals

SECOND CIRCUIT

At a Stated Term of the United States Court of Appeals, in and for the Second Circuit,

held at the United States Court House, in the City of New York, on the fifth

day of October , one thousand nine hundred and seventy-nine.

Present: HON. STERRY R. WATERMAN

HON. WILFRED FEINBERG

HON. WILLIAM H. TIMBERS

Circuit Judges.

Santos Sepulveda

Petitioner-Appellant

Vv.

United States of America and Warden, 78-2164

United States Penitentiary, Lewisburg, Pal.

Respondent-Appellee

A petition for a rehearing having been filed herein

by counsel for the appellant Santos Sepulveda

Upon consideration thereof, it is

Ordered that said petition be and it hereby is denied.

fe Bawsh Zivere

A. DANIEL FUSARO

Clerk

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of Appeals, in

; FILED

and for the Second Circuit, held at the United States Court House, U.s N CLERK'S OF pic

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in the City of New York, on th fifth * UW | 5 179

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aay of october . oe eee eee aes UNITED STATES DISTRICT COURT a ; IMD:

EASTERN DISTRICT OF NEW YORK 7 "eee tceateeceesees

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Santos Sepulveda,

SANTOS SEPULVEDA, |

|

t - llant

ate ianciee aime Petitioner, DECISION ;

v 78-2164

-against-

78 C 814

(75 CR 976)

AND_ORDER |

United States of America and Warden, United States

Penitentiary, Lewisburg, Pa UNITED STATES OF AMERICA and

WARDEN, United States Penitentiary,

Lewisburg, Pa.

Respondents.

A petition for rehearing containing a suggestion that the BRAMWELL, D. J.

action be reheard in banc having been filed herein by counsel for After pleading guilty to a charge of conspiring to

i i g ;s i > S |

the appellant Santos Sepulveda, and no active judge or judge who was a distribute and to possess with intent to distribute heroin

in violation of 21 U.S.C. §846 (1970), Santos Sepulveda was

member of the panel having requested that a vote be taken on said suggestion.

sentenced by this Court to a five year imprisonment term plus

a five year special parole term. Thereafter, by application

| filed on April 25, 1978, Mr. Sepulveda (hereinafter “petitioner")

Upon consideration thereof, it is moved for a writ of habeas corpus pursuant to 28 U.S.C. §2255

Ordered that said petition be and it hereby is denied.

|

(1970) on the ground that said sentence is illegal in that it |

is in excess of the maximum sentence authorized by law. |

Specifically, the petitioner attacks the imposition

ft of a five year special parole term, He claims that since 21

U.S.C. §846 (1970) makes no mention of a special parole term, |

Loniy 2 feafrovon

Chief Judge ne

the Court erred in imposing one as a sentence. He thus |

concludes that his sentence is illegal and the relief requested

< ' ‘

must issue. This Court disagrees with such a conclusion. .,/ | Y

See

veg © fet vetoetra

Pow

A reading of section 846 reveals that punishment

under that section is limited by the “maximum punishment

prescribed for the offense, the commission of which was the

object of the attempt or conspiracy." 21 U.S.C. §846 (1970).

In this case, the petitioner plead guilty to a charge of

conspiring to distribute and to possess with intent to dis-

tribute heroin. Thus, the object of the conspiracy was a

violation of 21 U.S.C. §841 (1970). Accordingly, it was

proper to sentence the petitioner pursuant to the provisions

of section 841. See United States v. Wiley, 519 F.2d 1348,

1349, 1351 (2d Cir. 1975), cert. denied, 423 U.S. 105 (1976).

Since heroin is a Schedule I narcotic drug, see 21 U.S.C. §81

(1970), under section 841 (b)(1) (A), a minimum special parole

term of at least three years in addition to any term of

imprisonment had to be imposed as a sentence. Therefore, the

imposition of a five year special parole term in the instant

case was clearly not illegal and was not imposed in contra-

vention to the laws of the United States. See 28 U.S.C.

§2255 (1970).

With this conclusion in mind, neither the issuance

of an order to show cause nor a hearing on the petitioner's

claim is warranted. See Rule 4, Rules Foll. 28 U.S.C. §2255

(1970). Accordingly, the petitioner's request for relief

pursuant to 28 U.S.C. §2255 is hereby denied and this action

ori ai we BE Te bom trae

2(c)

is hereby dismissed.

of this Decision and Order to the petitioner and the respon-

The Clerk of this Court is directed to send a copy

dents named herein.

Dated:

Brooklyn, New York

June pe 1978

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42. 76-608 Sree

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SANTOS SEPULVEDA,

Petitioner, vo Bis

C 75 CR 976)>:,

-against- 5 nal

DECISION

UNITED STATES OF AMERICA and AND ORDER

WARDEN, United States Penitentiary

Lewisburg, Pa.

Respondents,

BRAMWELL, D. J.

By application filed on April 25, 1978, Santos

Sepulveda, the petitioner herein, moved this Court for relief

pursuant to 28 U.S.C. §2255 (1970) on the ground that his

sentence is illegal and in excess of the maximum sentence

authorized by law. Specifically, Mr. Sepulveda argued that

since 21 U.S.C. §846 (1970) makes no mention of a special

parole term, the sentencing court erred in imposing one as

part of his sentence. After due consideration of this claim,

by Decision and Order dated June 14, 1978, Mr. Sepulveda's

motion was denied and his petition dismissed.

By application filed on June 28, 1978, Mr. Sepulveda

now approaches this Court for a reconsideration of this |

petition and its subsequent dismissal. In support of this |

\ ‘ .

motion, he directs this Court's attention to Fassette v =~"

ee 3

United States, 444 F.Supp. 1245 (C.D. Cal. 1978), a case which

he cites for the proposition that the imposition of a rs

parole term for a violation of 21 U.S.C. §846 is illegal. |

Initially, it must be noted that Fassette v. United

States is a case arising in a California district court not

a New York court, and, although noteworthy, it is not ypc!

on this court. This court, however, is bound by the decisions

of the United States Court of Appeals for the Second Circuit

which continually has recognized the validity of the inclusign

of a special parole term in the sentence for a drug conspiracy

offense. In United States v. Wiley, 519 F.2d 1348 (2d Cir. |

1975), for example, the Second Circuit held that a sentence

of 7 years plus a 3 year special parole term for a violation

of 21 U.S.C. § 846 was well within the statutory limits and |

was fixed within the sound discretion of the trial court,

For these reasons , a rehearing in petitioner's

case would be an act without meaning. Accordingly, a rehearing

on this petition is,denied in all respects, and this petition

remains cismissed. , |

The Clerk of this Court is hereby directed to send

a,copy of this Decision and Order

dents named herein.

Dated: Brooklyn, New York

July OY ai J 1978

FPL. #ST--6-27-77

Fe ;

ee

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

er ce a ie) ee, i f

X P Pt,

SANTOS SEPULVEDA, _ sg Be

Petitioner, 78 C 814 |

-against- (75 CR 976)

|

UNITED STATES OF AMERICA and DECISION ;

WARDEN, United States AND ORDER i

Penitentiary, Lewisburg, Pa., eee

Respondents.

ese ee ee ee ee eee eee x l

BRAMWELL, D. J.

By application filed on April 25, 1978, Santos

Sepulveda, the petitioner herein, moved this Court for

relief pursuant to 28 U.S.C. §2255 (1976) on the ground that

his sentence is illegal and in excess of the maximum sentence

authorized by law. Specifically, Mr. Sepulveda argued that

Since 21 U.S.C. §846 (1976) makes no mention of a special |

parole term, the sentencing court erred in imposing one as

part of his sentence. After due consideration of this claim,

by Decision and Order dated June 14, 1978, Mr. Sepulveda's

motion was denied and his petition dismissed.

By application filed on June 28, 1978, Mr. Sepulveda

!

approached this Court for a reconsideration of the June 14,

ae 3

. .

1978 dismissal order. After due deliberation, by Decision |

|

i

\519 F.2d 1348, 1351 (2d Cir. 1975), cert. denied, 423 U.S.

‘1058 (1976) the Second Circuit approved sentences which '

P. 2

dated June 3lst, 1978, this Court declined to accept Mr,

Sepulveda's invitation to overturn the June decision and,

instead, reaffirmed the dismissal.

Mr. Sepulveda now requests this Court for permission

to proceed in forma pauperis to the Second Circuit Court of |

Appeals pursuant to Rule 24 of the Federal Rules of Appellate

Procedure. Of note in this respect is that the Court's

research has disclosed that only two courts have been pre- i

term can be imposed for a violation of 21 U.S.C. §846 (1976).

sented with the precise issue of whether a special parole

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

the Tenth Circuit found that a defendant who was convicted of

conspiracy under section 846 but not of any substantive

violation of section 841 was properly sentenced to a special!

|

parole term. Id. at 867-868. However, a California district

court reached the contrary conclusion in Fassett v. United

“States, 444 F.Supp. 1245 (C.D. Cal. 1978) wherein the Court

held that no special parole term could be imposed under

———--

section 846. Id. at 1247. Although in both United States

v. Armedo-Sarmiento, 545 F.2d 785, 794-95 (2d Cir. 1976),

cert. denied, 430 U.S. 917 (1977) and United States v. Wiley,

i

included special parole terms imposed for violation of

--bemwe - =

PPI—SST---6-27-77

section 846, the specific issue raised herein by Mr.

Sepulveda was not presented for decision. See also United

States, v. Madonna, No. 78-1131 (2d Cir. Sept. 1, 1978).

Nonetheless, this Court adheres to its June 14, 1978 Decision

and Order which agrees with the Tenth Circuit's resolution

of this issue. |

Returning to the instant application, after reviewing

the papers submitted therewith, this Court grants Mr. Sepulveda

leave to appeal in forma pauperis to the Second Circuit

Court of Appeals. The Clerk of this Court is hereby directed

to send a copy of this Decision and Order to the petitioner

and the respondents named herein.

Dated: Brooklyn, New York

ota arsed , 1978

© ORNL SSO RR co ry a RCO RR ora ed

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CORRECTED COPY

UNITED STATES COURT OF APPEALS

For tHe Seconp Circuit

a

No. 954—August Term, 1978.

(Submitted April 30, 1979 Decided May 30, 1979.)

Docket No. 79-2024

_——————

ALpHonNsE Brrvtco,

Petitioner-Appellant,

—<—_e

Unsrtep States or AMERICA,

Respondent-Appellee.

a nn

Before:

Gunrein and Mest, Circuit Judges, and

Wyzanskt, District Judge.*

——

Appeal pro se from an order of the United States Dis-

trict Court for the Eastern District of New York, Mark A.

Costantino, Judge, denying motion for relief under 28

U.S.C. § 2255. The Court of Appeals held that the trial

court neither lacked subject matter jurisdiction over

appellant’s conviction under 21 U.S.C. $846 nor imposed

an illegal sentence under that section.

Affirmed.

a

od Hon, Charles E. Wyzanski, Jr., United States District Judge for

the District of Massachusetts, sitting by designation.

2845

Alphonse Bifuleco, Danbury, Connecticut

(Robert E. Winkle, Danbury, Connecticut,

on the brief), for Appellant Pro Se.

Edward R. Korman, United States Attor-

ney, Eastern District of New York, Harvey

M. Stone, Rodney G. Smith, Assistant

United States Attorneys, Eastern District

of New York, for Appellee.

inital tliblemmssiasioi

Per Curiam:

This is an appeal pro se from an order of the United

States District Court for the Eastern District of New

York, Mark A. Costantino, Judge, denying appellant

Alphonse Bifulco’s motion for relief pursuant to 28 U.S.C.

§ 2255. We regard appellant’s two claims on appeal as

meritless and we affirm the order entered below.

Appellant was indicted on three drug-related counts,

one count charging him under 21 U.S.C. $846 with con-

spiracy to manufacture, distribute, and possess with intent

to distribute substantial quantities of phencyclidine, a

Schedule III controlled substance, in violation of 21 U.S.C.

§ 841(a)(1), and the other two counts charging him with

substantive violations of 4 841(a)(1). After a jury trial,

appellant was convicted on the conspiracy charge and

acquitted on the substantive charges. On June 3, 1977, he

was sentenced to four years’ imprisonment, a special parole

term of five years and a $1,000 fine. This Court affirmed

his conviction without opinion on December 15, 1977. Sub-

sequently appellant, pro se, moved to vacate his sentence

under 28 U.S.C. § 2255. The motion was denied by the

district court and this appeal followed.

2846

Appellant presents two claims for our consideration.

The gist of the first argument is that the trial court lacked

subject matter jurisdiction over his trial and conviction

on the conspiracy count, in the absence of evidence prov-

ing a substantive offense as the object of the conspiracy,

on the theory that no offense against the United States had

been proven. As this argument attacks the jurisdiction of

the trial court, we will overlook appellant’s failure to raise

this objection in the § 2255 motion presented to the district

court. Reaching the merits, we must reject appellant’s

argument as utterly without foundation. Congress explic-

itly defined conspiracy under § 846, standing alone, as a

federal crime. A defendant need not be charged with any

other violation in order to be tried and convicted under

§ 846. See, e.g., United States v. Lyles, 593 F.2d 182 (2d

Cir.), cert. denied, 47 U.S.L.W. 3636 (U.S. Mar. 26, 1979).

Moreover, a defendant charged with both a § 846 conspiracy

and a substantive violation of § 841 may be lawfully con-

victed on the former and acquitted on the latter. See, e.g.,

United States v. Lubrano, 529 F.2d 633 (2d Cir. 1975),

cert. denied, 429 U.S. 818 (1976). See generally Callanan

v. United States, 364 U.S. 587 (1961) (noting distinctive-

ness of conspiracy to commit a particular offense and

actual commission of that offense).

Appellant’s second contention, which was raised below,

is that the imposition on him of a special parole term, in .

addition to inearceration, is an impermissible expansion

of the sentencing provisions of 21 U.S.C. $846. We dis-

agree.

Section 846 provides:

Any person who attempts or conspires to commit any

offense defined in this subchapter is punishable by

imprisonment or fine or both which may noi exceed

2847

a

the maximum punishment prescribed for the offense,

the commission of which was the object of the at-

tempt or conspiracy.

(emphasis added). Appellant argues in his brief that the

“maximum punishment” spelled out in § 846 refers to the

maximum imprisonment or fine prescribed for violations

of the substantive offenses covered by 21 U.S.C. § 841(b).

He claims that the legislative history demonstrates a con-

gressional intent to exclude the special parole mandated

by 21 U.S.C. §841(b). Therefore, he reasons, the addition

of a period of special parole to his sentence of imprison-

ment and fine was an illegal sentence under 21 U.S.C. § 846.

The only authority we have found that supports appellant’s

interpretation of the sentencing provisions of § 846 is

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

1978). The Fassette court interpreted § 846 as “not per-

mitting all of the types and kinds of punishment prescribed

for the substantive offense but permitting only fine and

imprisonment which shall not exceed the maximum fine

and imprisonment prescribed for the substantive offense.”

Id. at 1247 (footnote omitted). The court’s expressed hope

that the Ninth Circuit would rule on the issue, id. at 1248,

has gone unfulfilled.

The weight of authority is to the contrary. In United

States v. Armedo-Sarmiento, 545 F.2d 785, 794-95 (2d Cir.

1976), cert. denied, 430 U.S. 917 (1977), and United States

v. Wiley, 519 F.2d 1348, 1351 (2d Cir. 1975), cert. denied,

423 U.S. 1058 (1976), we gave our implicit approval to

the type of sentencing challenged here without discussing

or ruling on the claim raised by the appellant here. The

Fifth Circuit in United States v. De La Fuente, 550 F.2d

309 (Sth Cir. 1977), similarly gave its tacit approval to

a sentence containing a special parole term for a violation

2848

of § 846 without considering the argument proffered here.

In addition, the two circuit courts that have directly

addressed this issue have both rejected the reasoning

adopted in Fassette and urged upon us here by appellant.

In United States v. Burman, 584 F.2d 1354, 1358 (4th Cir.

1978), the court stated:

We think that 2 special parole term for violation of

§ 846 was properly included in Burman’s sentence.

The conspiracy statute, § 846, is punishable by a sen-

tence which must be set by reference to the penalties

of the substantive offense statute. A special parole

term is automatically made part of the sentence pre-

scribed by the substantive offense statute, §841(b),

anytime imprisonment is included in the sentence. We

think that under this statutory scheme such a special

parole term is required as a penalty under § 846 when

a sentence of imprisonment is imposed because the sub-

stantive [offense] statute, §841(b), would so require

it and the terms “imprisonment or fine or both” only

have meaning by reference to the sentences imposed

under substantive offense statutes. Because we do not

find Burman’s special parole term of fifteen years to

be excessive, we hold that the imposition of a special

parole term of fifteen years by the district court for

violation of § 846 was proper.

The Tenth Circuit relied on a similar analysis in reject-

ing the interpretation pressed here by the appellant:

From the wording in § 841(b)-(c), it would appear

that Congress viewed the special parole term as being

a part of the term of imprisonment to which it was

appended. Paragraphs (1) to (3) of §841(b) all make

a special parole term mandatory whenever imprison-

ment is also imposed. Thus, a parole term may never

be imposed without imprisonment; it must always ac-

company imprisonment, Section 841(c) provides, in

addition, that violation of the special parole may re-

sult in an increase in the original term of imprison-

ment to the extent of the length of the special parole

term. It is impossible, therefore, to accept the argu-

ment that the parole term is to be imposed only where

the charge is violation of the substantive provision.

It is logical to view the reference to imprisonment in

§ 846 as intending to incorporate all of the imprison.

ment provision in § 841(b).

United States v. Jacobson, 578 F.2d 863, 868 (10th Cir.

1978).

We note too that in a closely analogous case, United

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

Cirenit upheld the imposition of a special parole term in

addition to imprisonment under 21 U.S.C. § 963. Section

963 prohibits conspiracy to import, rather than manufac.

ture, controlled substances; the corresponding substantive

sections, §§952(a)(1) and 960(b)(1), punish the actual

importation of these substances, and as such, they are com-

panion sections to the substantive offense section involved

in the instant appeal. In Dankert the appellant made the

argument, similar to that advanced by appellant Bifulco,

that $963 does not include the special parole term provi-

sion of §960(b)(2). Section 963 provides:

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 ex-

ceed the maximum punishment prescribed for the of-

fense, the commission of which was the object of the

attempt or conspiracy.

/ 2850

(emphasis added). The Dankert Court rejected the inter

pretation proffered by appellant:

The punishment provision of § 963 must be considered

in light of §§952(a) and 960, since it is these statutes

which define the offense which was the object of the

conspiracy, and provide for punishment therefor.

They provide:

§952(a) It shall be unlawful to import... [cer-

tain] controlled substance[s] ... .

§ 960(a) (1)

Any person who-—

contrary to section 952, 953, or 957 of this title,

knowingly or intentionally imports or exports a

controlled substance,

shall be punished as provided in subsection (b)

of this section,

§ 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 vio-

lation 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 im-

prisonment, the sentence shall include a special

parole term of not less than three years in addi-

tion to such term of imprisonment.

We have no trouble whatever in understanding the

language of § 963 to permit punishment not exceeding

that provided for an offense in violation of § 952(a).

Td. at 191.

We agree with the position taken by the Fourth, Fifth

and Tenth Cireuits on this issue. Therefore, we affirm the

order of the district court denying appellant’s § 2255

motion.

570—6-1.79 ° UBCA—4391

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