
USCA1 Opinion

	




          February 15, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1888                               JAIME TORO-ARISTIZABAL,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Jaime Toro-Aristizabal on brief pro se.            ______________________            A.  John  Pappalardo,  United  States  Attorney,  and  Stephen  P.            ____________________                                   ___________        Heymann, Assistant United States Attorney, on brief for appellee.        _______                                 ____________________                                 ____________________                      Per Curiam.   Appellant Jaime  Toro-Aristizabal was                      __________            charged,  in  a multi-count  indictment,  with  conspiracy to            possess  with  intent  to distribute  and  distribution  of a            quantity of  cocaine between August  1986 and March  1988, in            violation  of 21  U.S.C.    846  (count  1), possession  with            intent  to distribute and  distribution of cocaine  in August            1986, in  violation of  21 U.S.C.    841(a)(1) (count  3) and            eleven  separate  incidents  of  possession  with  intent  to            distribute  cocaine (counts 4  through 14) during  the period            November 1986 through  July 1987.  He was convicted of all of            these  violations  after  a  jury trial.    We  affirmed  his            conviction on direct appeal.  See United States v. David, 940                                          ___ _____________    _____            F.2d  722, 739  (1st  Cir.),  cert. denied,  112  S. Ct.  605                                          ____________            (1991).                      In  this     2255   motion,  appellant  raises  his            inability to pay the $20,000 fine  he received on the count 3            conviction.   He  also,  in  other  pleadings  filed  in  the            district court, alluded  to the  following issues:   (1)  the            court  should not have considered, in determining appellant's            sentence under the sentencing  guidelines, any quantities  of            cocaine  involved in transactions which occurred prior to the            effective  date of the  guidelines; (2) the  sentencing court            incorrectly sentenced  him to  a term  of imprisonment  which            included  a term  of supervised  release in  violation  of 21            U.S.C.     846  and  contrary  to the  policy  of  lenity  in            construing   ambiguous   statutes;   and  (3)   he   received            ineffective assistance of counsel.                      Subsequently,   an   attorney  was   appointed   to            represent appellant.  He filed a new memorandum in which only            the issue concerning the fine was raised.  The district court            then  denied the  petition.   This  appeal ensued.   We  have            reviewed  the parties' briefs  and the record  and affirm the            judgment of  the district  court as to  the $20,000  fine for            essentially  the  reasons stated  in the  court's memorandum,            dated July 26, 1993.  We only add that the fine comports with            the factors listed  in 18 U.S.C.   3622(a),  which applied to            the count 3 conviction.                      As  for appellant's  assertion that  he  should not            have  received a  term  of parole  or supervised  release, we            first note  that this argument  is relevant only to  counts 3            and 4 to  14.   On Count  1, he was  sentenced to  a term  of            imprisonment;  this  sentence  did  not  include  a  term  of                                                ___            supervised  release  or parole.    Second,    846  applies to            conspiracies.  The remaining counts did not charge violations            of    846.   In  any event,  the sentences  imposed on  these            counts were not illegal.                      Under count  3 --  the August  1986 conviction  for            possession and distribution -- the  court sentenced appellant            to 15  years imprisonment.   In  August 1986,    841(b)(1)(B)            provided that "[a]ny sentence imposing a term of imprisonment                                         -3-            under this paragraph shall . . . impose a special parole term            of at least 3  years in addition to such term of imprisonment            . . .  ."  Thus, the  special parole portion of  the sentence            under count 3 is correct.                      The court  sentenced  appellant  on  the  remaining            eleven  counts  to  concurrent   terms  of  imprisonment   of            seventeen years and six months and concurrent five-year terms            of  supervised  release.   These  counts  covered  the period            November  13, 1986  to July 15,  1987.   Section 1002  of the            Anti-Drug Abuse  Act of  1986, enacted on  October 27,  1986,            replaced "special  parole term"  with a  "term of  supervised            release" for narcotic  offenses committed in violation  of 21            U.S.C.   841(b)(1)(A), (B) and (C).  In the Sentencing Reform            Act of  1984, however,  Congress had  deferred the  effective            date for  the elimination  of special  parole to November  1,            1987.          In  Gozlon-Peretz v.  United States,  498 U.S.                               _____________     _____________            395  (1991), the  Supreme  Court  held  that  the  supervised            release provisions of the ADAA applied for the interim period            October 27,  1986 to November 1, 1987.   Id. at 410.  Because                                                     ___            the  dates  of counts  4  to 14  fall  in  this time  period,            appellant  was correctly  sentenced  to  terms of  supervised            release.                      Because appellant's sentences were legal, his claim            of ineffective assistance of counsel fails.  As for his claim            that the  court  erred in  calculating  his sentence  on  the                                         -4-            conspiracy  count  by  referring  to  conduct  predating  the            effective  date  of  the  sentencing guidelines,  we  already            rejected this argument in appellant's direct appeal.  See 940                                                                  ___            F.2d at 740.  Finally, because the grounds presented in the              2255 motion  turned on  legal issues,  we reject  appellant's            claim that he was entitled to an evidentiary hearing.                      The judgment of the district court is affirmed.                                                            ________                                         -5-
