
USCA1 Opinion

	




          September 22, 1993    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1250                                             MICHAEL J. KINGSLEY,                                     Petitioner,                                          v.                              UNITED STATES OF AMERICA,                                     Respondent.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Frank H. Freedman, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ___________________               Michael J. Kingsley on brief pro se.               ___________________               A.  John  Pappalardo,  United  States  Attorney,  and  Kevin               ____________________                                   _____          O'Regan, Assistant United States Attorney, on brief for appellee.          _______                                  __________________                                  __________________                                         -2-                 Per Curiam.  Petitioner  Michael Kingsley challenges the                 __________            legality  of special  parole  terms imposed  as  part of  his            sentence  for  multiple  drug violations.    He  argues that,            because such sanctions were abolished between the time of his            offenses  and the time of his  sentencing, the district court            should have applied the law in effect on the latter date.  We            disagree  and therefore affirm  the denial  of his  motion to            correct sentence under 28 U.S.C.    2255 and/or Fed. R. Crim.            P. 35(a).                  From March 1977  to May 1985, petitioner was  the leader            of a twenty-three member organization engaged in distributing            cocaine and marijuana  in western Massachusetts.   In January            1987, he pled guilty to  22 separate offenses as follows: one            count  of conspiracy to distribute cocaine,  21 U.S.C.   846,            one count  of conspiracy  to distribute  marijuana, id.,  ten                                                                ___            counts of  cocaine distribution,  21 U.S.C.    841(a),  three            counts   of  marijuana  distribution,   id.,  one   count  of                                                    ___            conducting a continuing criminal enterprise, 21 U.S.C.   848,            and  six  related  tax  offenses.    Sentencing  occurred  on            February  17,  1987.    At  the  government's  recommendation            pursuant to a plea bargain, the district court imposed twelve            ten-year prison terms (for the continuing criminal enterprise            offense  and each of the cocaine  offenses) and ten five-year            prison  terms (for each of  the marijuana and tax offenses)--            all to be served concurrently.   The court also imposed three                                         -3-            years  of  special parole  for  each  of  the eleven  cocaine            offenses (the conspiracy  count and  ten substantive  counts)            and  two  years of  special  parole  for  each of  the  three            substantive marijuana offenses.                   In October  1992, petitioner  filed  the instant  motion            seeking to vacate the special parole terms.  From his reading            of various amendments to 21  U.S.C.   841(b) that occurred in            the  mid-1980s, he  argued  that  the  statute  in  its  1987            configuration imposed no type  of post-confinement monitoring            for the  offenses at issue  here.  He further  contended that            the district court was required to impose this allegedly more            "lenient" penalty provision, rather than the one in effect at            the time the offenses occurred.   The district court properly            rejected  this analysis.1  Contrary to petitioner's view, the            1987  version of    841(b) actually contained  more stringent            penalties, including enhanced  prison sentences and terms  of            supervised  release.  Applying  that provision  at sentencing            thus  would have  violated  the  ex post  facto  clause.   We                                             ______________            explain briefly.                 The  various  modifications  that     841(b)   underwent            between  1984  and  1987   have  been  exhaustively  detailed            elsewhere,  see, e.g.,  Gozlon-Peretz v.  United States,  498                        ___  ____   _____________     _____________                                            ____________________            1.  The  district court did modify one aspect of the judgment            sua sponte.   Pursuant to Bifulco v. United  States, 447 U.S.            __________                _______    ______________            381 (1980),  it vacated the  special parole term  imposed for            the cocaine conspiracy count.                                          -4-            U.S.  395, 399-403 (1991); Padilla Palacios v. United States,                                       ________________    _____________            932  F.2d 31,  32-33  (1st Cir.  1991)  (per curiam);  United                                                                   ______            States  v. Ocasio  Figueroa, 898 F.2d  825, 826-28  (1st Cir.            ______     ________________            1990), cert. denied, 113 S. Ct. 1001 (1993); United States v.                   ____________                          _____________            Ferryman, 897 F.2d 584, 586-88 (1st Cir.), cert.  denied, 498            ________                                   _____________            U.S. 830 (1990), and so need only be summarized  here.  Prior            to October 12,  1984,   841(b) mandated a  three-year term of            special parole for cocaine  offenses and a two-year term  for            marijuana offenses.  Between that date  and October 27, 1986,            an  anomalous  situation  existed.   The  statute  imposed no            special  parole term  for  large-scale offenses  (e.g., those                                                              ____            involving one kilogram or more of cocaine), but retained such            sanctions  for  lesser   offenses.    Compare  21   U.S.C.                                                     _______            841(b)(1)(A) (Supp.  1984) with id.    841(b)(1)(B)-(C); see,                                       ____ ___                      ___            e.g., United  States v.  Santamaria, 788  F.2d 824, 829  (1st            ____  ______________     __________            Cir.  1986).   Finally,  it  is now  clear  that the  statute            requires  a term  of  supervised  release  for  all  offenses            occurring on or after October 27, 1986 (not November 1, 1987,            as  petitioner suggests).  See, e.g., Gozlon-Peretz, 498 U.S.                                       ___  ____  _____________            at 409; United States v. Morris, 977 F.2d 677, 686  (1st Cir.                    _____________    ______            1992), cert. denied, 113 S. Ct.  1588 (1993).  Both the  1984                   ____________            and  1986 amendments,  of course,  also  enhanced the  prison            terms prescribed by   841(b).                  Defendant is therefore mistaken in maintaining  that the            statutory penalties existing  prior to October 12,  1984 were                                         -5-            more  stringent than  those existing  in 1987.   Had  he been            sentenced under  the latter,  he would  have been  exposed to            longer  terms of  imprisonment.2    And  he would  have  been            subject to periods  of supervised release at  least equal to,            and  (depending on the  quantity of drugs  involved) possibly            longer  than, the  earlier special  parole  terms--a fact  he            overlooks entirely.  It is thus clear that application of the            1987 penalties would  have been impermissible.   And, lastly,            petitioner's contention that  the circumstances  here are  so            ambiguous as to warrant invoking  the "rule of lenity" in his            favor is  well off the  mark.  See, e.g.,  Gozlon-Peretz, 498                                           ___  ____   _____________            U.S. at 409-10; Ferryman, 897 F.2d at 591.3                             ________                                            ____________________            2.  Defendant   suggests    this   would   have    posed   no            constitutional  difficulties  in  light of  the  government's            sentencing  recommendations under  the  plea agreement.    He            ignores the fact that the  district court was not required to            accept those recommendations.            3.  While we  need not  address the issue,  we note  that the            second prong of petitioner's argument--that any  reduction in            criminal penalties must be applied retroactively, even absent            any  specific  provision  to  that  effect--appears   equally            problematic.  See generally United States v. Jacobs, 919 F.2d                          _____________ _____________    ______            10 (3d Cir. 1990) (applying "saving statute," 1 U.S.C.   109,            to find change in drug offense classification, which occurred            between time  of  offense and  time of  sentencing and  which            would  have  rendered   defendant  eligible  for   probation,            inapplicable), cert. denied,  111 S. Ct. 1333  (1991); Lerner                           ____________                            ______            v. Gill,  751 F.2d  450, 456  (1st Cir.)  (rejecting argument               ____            that  "a state  must  retroactively  afford  a  prisoner  the            benefits  of any less stringent legislation adopted after the            crime"), cert. denied, 472 U.S. 1010 (1985).  See also United                     ____________                         ________ ______            States v.  Tarvers,  833  F.2d 1068,  1077  (1st  Cir.  1987)            ______     _______            (upholding special parole term imposed under pre-1984 version            of   841(b), even though sentencing occurred in 1985).                                           -6-                 The same reasoning applies to the two offenses here that            occurred  after  October   12,  1984:  count  14   (involving            distribution of cocaine  on October 29,  1984), and count  15            (involving possession of marijuana with intent to  distribute            on May 3, 1985).   The penalty provisions applicable to these            offenses,  21 U.S.C.    841(b)(1)(B)-(C)  (Supp.  1984), were            less stringent than  those in effect in 1987.   Moreover, the            1984 statute required special  parole in both instances.   Of            course, had count  14 involved a kilogram or  more of cocaine            and  thus  fallen  within  the  1984  version  of  subsection            (b)(1)(A) rather than (b)(1)(B), no special parole would have            been warranted with respect thereto.  Yet the district  court            specifically  determined that  this offense  was  governed by            subsection (b)(1)(B)  and petitioner has not  challenged this            finding on appeal.                 Affirmed.                 _________                                         -7-
