

                    [NOT FOR PUBLICATION]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.

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     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-
