842 F.2d 755 (5th Cir. 1988), 88-2033, United States v. De Los Reyes

Docket Nº:88-2033
Citation:842 F.2d 755
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Juan De LOS REYES, Defendant-Appellant.
Case Date:April 04, 1988
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 755

842 F.2d 755 (5th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,

v.

Juan De LOS REYES, Defendant-Appellant.

No. 88-2033

United States Court of Appeals, Fifth Circuit

April 4, 1988

Page 756

Juan De Los Reyes, pro se.

Robert A. Berg, Asst. U.S. Atty., Corpus Christi, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before REAVLEY, KING and JOLLY, Circuit Judges.

KING, Circuit Judge:

Juan De Los Reyes appeals from the district court's order resentencing him to a three year term of supervised release. That order came in response to Reyes' motion to correct his original sentence by vacating a two year special parole term imposed by the district court. As we find that the district court erred by imposing a term of supervised release and by vacating the original sentence, which called for the imposition of a special parole term, we grant Reyes in forma pauperis status, vacate the term of supervised release, and remand to the district court for resentencing.

I.

Juan De Los Reyes ("Reyes") pleaded guilty to possessing less than fifty kilograms of marijuana with the intent to distribute in violation of Title 21, United States Code, section 841(a)(1). The underlying offense occurred on October 18, 1986. In April, 1987, the district court, citing Title 21, United States Code, section 841(b)(1)(C), 1 sentenced Reyes to eighteen months in prison, a $500 fine and a two year special parole term. In December, 1987, Reyes filed a motion under Federal Rule of Criminal Procedure 35 to correct his sentence by vacating the special parole term portion. In his motion, Reyes argued that the Sentencing Reform Act of 1984, Pub.L. No. 98-473, Sec. 224(a), 1984 U.S.Code Cong. & Admin.News (98 Stat.) 1987, 2030, repealed the special parole term provisions of section 841(b). The district court found that at the time of sentencing, section 841(b)(1)(C) authorized a period of supervised release rather than a special parole term and, as a result, granted Reyes' motion. The district court then immediately imposed a three year term of supervised release. Reyes later filed notice of appeal. The district court denied Reyes in forma pauperis status on appeal, and Reyes renews his motion here. He argues that the

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district court was not empowered to impose either supervised release or special parole.

II.

At the outset, we must examine our jurisdiction over the instant appeal "for 'it is incumbent upon federal courts--trial and appellate--to constantly examine the basis of jurisdiction, doing so on our own motion if necessary.' " United States v. Santora, 711 F.2d 41, 42...

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