
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 97-1559                                    UNITED STATES,                                      Appellee,                                          v.                                 GUISEPPE PELLERITO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                              Cyr, Senior Circuit Judge,                                   ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            George F. Murphy on brief for appellant.            ________________            John C. Keeney,  Acting Assistant Attorney General, and Corbin  A.            ______________                                          __________        Weiss, Trial Attorney,  Department of Justice,  on Motion for  Summary        _____        Disposition and Memorandum in Support for appellee.                                 ____________________                                  December 19, 1997                                 ____________________                 Per Curiam.    Appellant Giuseppe Pellerito  appeals the                 __________            denial of his motion to correct an illegal sentence, pursuant            to Fed. R. Crim P. 35(a).  We affirm.                 Pellerito raises two arguments in support of this claim.            First, he asserts that his involvement in the  conspiracy for            which he  was sentenced  ended before  1984 and therefore  he            should  have been  sentenced  in  accord  with  the  pre-1984            penalty provisions  of 21  U.S.C.   846.   Second,  he claims            that,  even if his  involvement lasted beyond  November 1984,            the  penalty provisions of section 846 were not changed until            1988.  Neither argument has merit.                 Pellerito  claims that the  indictment to which  he pled            guilty only  referred to  his involvement  in the  conspiracy            during  the  years  of  1978  and  1979.  However, while  the            indictment  is not entirely clear  as to when his involvement            in  the  conspiracy  ended,  the government  stated,  without            objection, at  the change  of plea  hearing that  Pellerito's            involvement  lasted  "through   1985"  and  the   presentence            investigation  report  states  that  Pellerito's  involvement            lasted at least until the summer of 1985.                 Pellerito also claims  that, even if his  involvement in            the  conspiracy  lasted  beyond November  1984,  the  penalty            provisions of section 846 were  not changed until 1988.  This            claim is without merit.                                         -2-                 In 1970  Congress enacted  the Comprehensive  Drug Abuse            and Control Act.   One section of the act, now codified as 21            U.S.C.   841, provided for up to 15  years imprisonment and a            $25,000  fine  or   both,  for  possession  with   intent  to            distribute  or the distribution  of narcotic drugs.   Another            section, now 21  U.S.C.   846,  provided that conspiracy  for            "any offense 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 .  . .  conspiracy."   While  the language  of            section  846 was  not  changed until  1988,  section 841  was            amended in 1984  to increase the punishments to  a maximum of            20 years and a  fine of $250,000 or  both.  Pellerito  claims            that,  since section  846  was not  amended  until 1988,  its            penalty  provisions remained the same as those originally set            in 1970, i.e.,  a maximum of 15 years imprisonment  or a fine                     ____            of $25,000 or both.                 According  to the Supreme  Court, "[a]s a  general rule,            where the  legislation  dealing  with  a  particular  subject            consists of  a system of  general provisions indicative  of a            settled policy,  new enactments  of a  fragmentary nature  on            that subject are  to be  taken as  intended to  fit into  the            existing system and to be carried into effect  conformably to            it,  excepting  as  a different  purpose  is  plainly shown."            United  States v. Jefferson  Electric Co., 291  U.S. 386, 396            ______________    _______________________                                         -3-            (1933)  (citing   cases).  In  the  instant   case,  Congress            originally  enacted  sections  841  and 846  as  "part  of  a            comprehensive  legislative  scheme  [the  Comprehensive  Drug            Abuse and Control Act of 1970] designed to halt drug abuse in            the United  States."  United  States v. Baker, 609  F.2d 134,                                  ______________    _____            137 (5th Cir.  1980).  Pursuant to that comprehensive scheme,            the  punishment for  conspiracies  was  not  to  "exceed  the            maximum punishment  prescribed for the offense."  21 U.S.C.              846.  The 1984 amendment, increasing penalties for violations            of  the offense, was clearly a "fragmentary" enactment which,            in turn, was designed to  halt drug trafficking.  Since there            is no indication that Congress intended in 1984 to modify the            prior  relation between the punishment scheme for the offense            and  that for conspiracy, the amendment  must be carried into            effect conformably with that scheme, i.e., the punishment for                                                 ____            conspiracy must still  be limited to the  "maximum punishment            for the offense" which would now be 20 years imprisonment and            a $250,000 fine, or both.   Cf. United States v.  Layton, 509                                        __  _____________     ______            F.Supp. 212, 225 (N.D.Cal.) (18 U.S.C.   1117, which provides            punishment  for those who "conspire to violate sections 1111,            1114 or 1116 of this title," incorporates amendments to those            sections), appeal dismissed,  645 F.2d 681 (9th  Cir.), cert.                       ______ _________                             _____            denied, 452 U.S. 972 (1981)            ______                 Pellerito reliance on Bifulco v. United States, 447 U.S.                                       _______    _____________            381 (1980) is misplaced.  In Bifulco, the court held that the                                         _______                                         -4-            penalty  provisions of   846 did not incorporate the "special            parole" provisions of   841.   The court reasoned that, since              846  referred only to  "imprisonment or fines," it  did not            authorize other penalties, such as special parole, which were            neither.   This  reasoning,  however, does  not apply  to the            instant  case  since  the issue  here  is  "imprisonment" and            "fines" which are specifically authorized in   846.                 Affirmed.  See 1st Cir. Loc. R. 27.1.                 ________   ___                                         -5-
