U.S. v. Ferryman, 89-1486

• Decision Date: 05 December 1989
• Docket Number: No. 89-1486,89-1486
• Citation: 897 F.2d 584
• Parties: UNITED STATES of America, Appellee, v. Stanley FERRYMAN, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 584

897 F.2d 584

UNITED STATES of America, Appellee, v. Stanley FERRYMAN, Defendant, Appellant.

No. 89-1486.

United States Court of Appeals, First Circuit.

Heard Dec. 5, 1989.

Decided Feb. 21, 1990.

As Amended Feb. 23 and March 16, 1990.

Rehearing Denied March 20, 1990.

John C. Doherty, Andover, Mass., for appellant.

Deborah C. Sharp, Asst. U.S. Atty., with whom Jeffrey R. Howard, U.S. Atty., Concord, N.H., was on brief, for U.S.

Before BOWNES, BREYER and SELYA, Circuit Judges.

SELYA, Circuit Judge.

This appeal, involving a question of statutory interpretation, would be a classic jigsaw puzzle but for one thing: a jigsaw puzzle invariably arrives in a box, the cover of which displays a clear picture of what will materialize when the pieces are properly assembled. This case is different because the question comes to us in a plain wrapper, as it were, bereft of previews of coming attractions. The lack of graphics proves in the end, however, to be of little moment; when one confronts the task of assembly, the statutory fragments are satisfactorily aligned and the picture which emerges is explicit and unambiguous. In short, the puzzle is considerably less problematic than appears at first blush.

I. THE BACKDROP

Defendant-appellant Stanley Ferryman was indicted by a federal grand jury in New Hampshire. The indictment was in two counts, but our concern is exclusively with count 2. Therein, appellant was charged with possession of nine ounces of pure cocaine, more or less, with intent to distribute the same, in violation of 21 U.S.C. Sec. 841(a). The offense occurred in September 1987. Ferryman pled guilty and was sentenced to a jail term plus a term of supervised release. He did not appeal.

On August 19, 1988, appellant moved to correct an illegal sentence. He argued, among other things, that supervised release

was inexigible. On August 30, the district court, agreeing, vacated the supervised release term. Eventually, the court ruled that a special parole term, rather than a term of supervised release, was mandated in conjunction with the prison sentence levied on count 2. An amended judgment containing a three-year special parole term was issued. Ferryman appealed from the amended judgment.

II. THE PIECES OF THE PUZZLE

It is against this backdrop that we turn to the relevant statutory fragments. Prior to 1984, 21 U.S.C. Sec. 841(a) criminalized distribution (actual or intended) of drugs such as cocaine. The relevant penalty provision, 21 U.S.C. Sec. 841(b), provided for fines and/or incarceration, and in addition, for imposition of a mandatory special parole term in conjunction with every prison sentence meted out in respect to cocaine charges. See Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, Sec. 401(b), 84 Stat. 1236.

On October 12, 1984, section 841(b) was amended. See Comprehensive Crime Control Act of 1984 (CCCA), Pub.L. No. 98-473, Sec. 502, 98 Stat. 1837. Among other things, the amendment subdivided cocaine-related offenses into two categories for purposes of punishment. A "new" section 841(b)(1)(A) applied to large-scale transactions (involving one kilogram or more of cocaine); the "old" prohibition was recast as section 841(b)(1)(B) and covered only smaller-scale transactions. These amendments became effective upon passage. The two halves of the subdivided statute parted company on the subject of special parole: the neoteric section 841(b)(1)(A) did not mention it, while section 841(b)(1)(B), as reformulated, retained an obligatory special parole provision. The net result was arguably anomalous: ¹ large-scale cocaine traffickers could not be saddled with special parole, but lower-volume peddlers who were sentenced to prison received a mandatory term of special parole to boot. See, e.g., United States v. Rivera-Santiago, 872 F.2d 1073, 1090 (1st Cir.) (describing result), cert. denied, --- U.S. ----, 109 S.Ct. 3227, 106 L.Ed.2d 576 (1989); United States v. Santamaria, 788 F.2d 824, 829 (1st Cir.1986) (same).

Another provision of the CCCA, section 224, prospectively deleted the mandatory special parole term from the recast section 841(b)(1)(B). Under section 235(a)(1) of the CCCA, this deletion was to occur as of November 1, 1986 (the effective date of the Sentencing Reform Act of 1984). But, the special parole language remained in place for a year longer, because the Sentencing Reform Act's effective date was later postponed to November 1, 1987. See Sentencing Reform Amendments Act of 1985, Pub.L. No. 99-217, Sec. 4, 99 Stat. 1728.

The legislative pot was only just beginning to boil. Section 841(b) was amended again in 1986. These revisions were eventually enacted as Subtitle A of Title I of the Anti-Drug Abuse Act of 1986 (ADAA), Pub.L. No. 99-570, tit. I, Secs. 1001-1009, 100 Stat. 3207, 3207-2 through 3207-8 (1986). As introduced in the House of Representatives on September 8, 1986, the bill reflected mounting congressional concern over drug trafficking. See 132 Cong.Rec. H6459 (daily ed. September 8, 1986); H6608-10, H6628-32 (daily ed. Sept. 11, 1986); see generally H.R.Rep. No. 845, 99th Cong., 2d Sess. 10-11 (1986). Thereunder, the proposed penalties for all categories of cocaine and other narcotics offenses included mandatory minimum terms of imprisonment, mandatory special parole terms, and ineligibility for regular parole during mandatory minimum terms of imprisonment. 132 Cong.Rec. H6629 (daily ed. Sept. 11, 1986). While no explicit effective date was fixed vis-a-vis the penalty provisions, it was plain that the enhanced penalties, including the special parole provisions, were to be effective from the date of enactment; special parole would then be eliminated entirely on the effective date of Within the next few days, the President transmitted to Congress a somewhat different schemata (labelled the Drug-Free America Act), also enhancing penalties for drug offenses. See 22 Comp.Pres.Doc. 1192-1194 (Sept. 15, 1986). Each subsection applicable to serious offenses provided for mandatory minimum terms of imprisonment, no possibility of regular parole, and mandatory terms of special parole. Section 507 of the Administration's proposal stipulated that, upon the effective date of sentencing reform (November 1, 1987), "special parole term[s]" would be supplanted by "term[s] of supervised release." While no effective date for the amended penalty provisions was specified, the explanatory notes accompanying the proposal left no doubt but that special parole terms (and the other penalty enhancements) were to go into effect immediately upon enactment, and there was to be a changeover from "special parole" to "supervised release" on November 1, 1987. The Administration's proposal (with revisions not material for our purposes) was introduced in the Senate as S. 2878. 132 Cong.Rec. S13648-52 (daily ed. Sept. 25, 1986). The Senate bill retained the requirement for terms of special parole and for a changeover from special parole to supervised release on November 1, 1987.

sentencing reform (November 1, 1987). See, e.g., H.Rep. No. 845, 99th Cong., 2d Sess. 20 (1986) (describing bill as containing "conforming prospective amendments to repeal the provisions authorizing special parole terms when the new Federal sentencing laws take effect"). This version of H.R. 5484 was passed by the House on September 11, 1986. 132 Cong.Rec. H6608 (daily ed. Sept. 11, 1986).

S. 2878 became the Senate substitute for the version of H.R. 5484 theretofore passed by the House, see 132 Cong.Rec. S13779 (daily ed. Sept. 26, 1986); and H.R. 5484, as thus amended, was passed by the Senate on September 30 and returned to the House. 132 Cong.Rec. S14302 (daily ed. Sept. 30, 1986). The House concurred and remitted the bill to the Senate with other amendments not relevant today. 132 Cong.Rec. H9479-84 (daily ed. Oct. 8, 1986). The penalty provisions mandating special parole terms were contained in section 1002 of the bill and the terminology changeover provision (exchanging "special parole" for "supervised release" effective November 1, 1987) was contained in section 1004. On October 15, the Senate passed the bill as received from the House, adding certain other amendments. 132 Cong.Rec S16489, 16502 (daily ed. Oct. 15, 1986).

A final rush to passage ensued. When the bill was again before the House, the words "special parole" were for the first time changed to "supervised release" in the penalty provisions of the bill, without any notation or explanation; ² yet the terminology changeover language of section 1004 was unaltered. 132 Cong.Rec. H11219-22 (daily ed. Oct. 17, 1986). Both the House and the Senate, without any discussion of this point, approved the bill, 132 Cong.Rec. H10777, 10787, S16915, 16921 (daily ed. Oct. 17, 1986), and the President signed the ADAA into law on October 27, 1986.

We survey the battlefield. Section 1002 of the law, as enacted, increased the penalties for drug offenses, refigured the quantities of controlled substances necessary to trigger different penalty levels, prohibited parole for various offenders, substituted "supervised release" for "special parole" in section 841(b)(1)(B), and added a mandatory supervised release term in respect to sentences imposed under section 841(b)(1)(A). Section 1004 contained a further instruction anent the supervised release/special parole interchange--an instruction which was both more specific and more inclusive:

The Controlled Substances Act and the Controlled Substances Import and Export Act are amended by striking out "special parole term" each place it appears ADAA Sec. 1004(a), Pub.L. No. 99-570, 100 Stat. 3207-6. And although section 1002 contained no stipulation delaying its effective date, section 1004 was more precise; it would "take effect on the date of the taking effect of section 3583 of Title 18, United States Code." Id. Sec. 1004(b). It is beyond peradventure that 18 U.S.C. Sec. 3583 (a key...