U.S. v. Garay, 90-1654

• Decision Date: 12 December 1990
• Docket Number: No. 90-1654,90-1654
• Citation: 921 F.2d 330
• Parties: UNITED STATES, Appellee, v. Rafael GARAY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 330

921 F.2d 330

UNITED STATES, Appellee, v. Rafael GARAY, Defendant, Appellant.

No. 90-1654.

United States Court of Appeals First Circuit.

Submitted Oct. 12, 1990.

Decided Dec. 12, 1990.

Rafael Garay, on brief pro se.

Jose R. Gaztambide, Asst. U.S. Atty., and Daniel F. Lopez-Romo, U.S. Atty., on brief, for appellee.

Before CAMPBELL, TORRUELLA, and SELYA, Circuit Judges.

PER CURIAM.

Appellant, convicted of various drug offenses, filed a motion to reduce his sentence contending that the district court had applied the wrong version of the relevant sentencing statute. Appellant claimed that his sentence was too long, that he should be eligible for parole, and that he should not be subject to a term of supervised release. The district court replaced appellant's term of supervised release with a special parole term, but otherwise denied appellant's motion. Appellant has appealed from that denial repeating the contentions rejected below. As the proper sentence is determined by the amount and type of controlled substance involved, as well as the date the offense took place, we turn to the relevant background.

Appellant was convicted of violating 21 U.S.C. Sec. 955a(c) (unlawful for any person on board a vessel within United States customs waters to possess a controlled substance with intent to distribute) and 21 U.S.C. Sec. 955a(b) (unlawful for United States citizen on board a vessel to possess with intent to distribute a controlled substance). As charged in the indictment, the offenses took place on November 16, 1986 and involved 10,000 pounds of marihuana. Appellant received a 25 year term of imprisonment plus 5 years supervised release on each count, the prison term to be served concurrently. This court affirmed appellant's convictions (as well as those of his co-defendants) on direct appeal. United States v. Doe, 860 F.2d 488 (1st Cir.1988), cert. denied sub nom. Andrades-Salinas v. United States, 490 U.S. 1049, 109 S.Ct. 1961, 104 L.Ed.2d 430 (1989).

Although appellant has not raised the matter, we note that on November 16, 1986, when the offenses took place, 21 U.S.C. Sec. 955a was no longer in force. A few days earlier, the statute had been superseded by 46 U.S.C.App. Sec. 1903. Section 1903 continued to proscribe the conduct prohibited by 21 U.S.C. Sec. 955a(c) (possession of controlled substance on board a vessel within United States customs waters with intent to distribute), but did not, as of November 16, 1986 (46 U.S.C.App. Sec. 1903 was later amended in 1988), make unlawful the second offense--the violation of 21 U.S.C. Sec. 955a(b)--of which appellant was convicted. Consequently, the conviction and concurrent sentence for count three, violation of 21 U.S.C. 955a(b), must be vacated. See United States v. Mazzaferro, 907 F.2d 251, 252-53 (1st Cir.1990) (vacating concurrent sentence imposed for possession of a controlled substance by a United States citizen on board a vessel as said conduct was not prohibited at the time the offense was committed). With this background, we turn to appellant's arguments.

1. Imprisonment Term

As the applicable statute at the time of the commission of the offense was 46 U.S.C.App. Sec. 1903, appellant's sentence is governed by 46 U.S.C.App. Sec. 1903(g). Section 1903(g) provided, at the time appellant possessed the marihuana in question (November 16, 1986), as follows:

(1) Any person who commits an offense defined in this section shall be punished in accordance with the penalties set forth in section 1010 of the Comprehensive Crime Control Act of 1970 (21 U.S.C. Sec. 960).

Section 960, in turn, read, as of November 16, 1986, as follows:

(b) Penalties

(1) In the case of a violation of subsection

(a) of this section involving ---

. . . . .

(G) 1000 kilograms or more of a mixture or substance containing a detectable amount of marihuana;

the person committing such violation shall be sentenced to a term of imprisonment of not less than 10 years and not more than life.... No person sentenced under this paragraph shall be eligible for parole during the term of imprisonment imposed therein.

Pub.L. No. 91-513, title III, Sec. 1010, 84 Stat. 1290 (1970), as amended by Pub.L. No. 98-473, title II, Sec. 504, 98 Stat. 2070 (1984) and Pub.L. No. 99-570, title I, Secs. 1302, 1866(e), 100 Stat. 3207-15, 3207-55 (October 27, 1986).

Appellant's 25-year sentence falls well within the 10-year to life sentence mandated by Sec. 960(b), as amended, through 1986. Appellant maintains, however, that the maximum allowable sentence was 15 years. To reach this result, he relies on an earlier version of Sec. 960. He argues that those provisions of the Anti-Drug Abuse Act of 1986 (ADAA), Pub.L. No. 99-570 (October 27, 1986) which increased the penalties for drug offenses were not meant to take effect until the sentencing guidelines became effective, that is, the 1986 amendments would apply only to offenses committed after November 1, 1987, a date after the commission of appellant's offense. Appellant views the guidelines and the enhanced penalties as parts of a single, comprehensive package of sentencing reform, all of which was to go into effect at one time. Consequently, the pre-1986 amendment version of Sec. 960(b) with its lesser penalties should apply, appellant argues.

We disagree. The normal presumption is that statutes are effective upon passage. United States v. Ferryman, 897 F.2d 584, 588-89 (1st Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 90, 112 L.Ed.2d 62 (1990). To be sure, contrary indications may overcome that presumption. Here, however, we see insufficient indications to overcome the general rule. Certain provisions of the ADAA of 1986 were expressly delayed until November 1, 1987. See Pub.L. No. 99-570, title I, Sec. 1004, 100 Stat. 3207-6 (1986) (expressly delaying effective date of the switchover from special parole to supervised release). In view of the fact that the effective date of some provisions was explicitly delayed, we see no basis for concluding that other provisions were somehow silently delayed. ¹

We indicated to the contrary in United States v. Ferryman, 897 F.2d at 588 ("[b]ecause ADAA section 1002 contained no specified effective date, the amendments embodied therein have, in general, been held effective from and after the date of enactment (October 27, 1986)"). To be sure, we were there concerned with the various amendments to and penalty provisions set forth in 21 U.S.C. Sec. 841(b)--rather than 21 U.S.C. Sec. 960(b). But, Sec. 841(b), the provision setting forth the penalties for unlawful manufacture, distribution or possession with intent to manufacture or distribute controlled substances, closely parallels 21 U.S.C. Sec. 960(b), the penalty provision for unlawful importation or possession on board a vessel with intent to distribute, and the two statutes were amended by the same legislation in 1986 which increased the penalties in parallel fashion in both Sec. 841(b) and Sec. 960(b). It would be anomalous to conclude that the portion of the ADAA of 1986 stiffening Sec. 841(b) sentences was effective immediately upon passage but that the parallel amendments to Sec. 960(b) were somehow delayed. Furthermore, in United States v. Mazzaferro, 907 F.2d 251 (1st Cir.1990), we applied the enhanced penalties produced by the 1986 amendments to 21 U.S.C. Sec. 960 to a December 1986 marihuana offense. By so doing, we effectively decided that the 1986 increased penalty provisions became effective upon passage. Other circuits, too, have concluded that the enhanced penalty provisions of the ADAA of 1986 were effective immediately upon enactment. See United States v. Duprey, 895 F.2d 303, 311 (7th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1927, 109 L.Ed.2d 291 (1990); United States v. Padilla, 869 F.2d 372, 381-82 (8th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3223, 106 L.Ed.2d 572 (1989); United States v. Meyers, 847 F.2d 1408, 1414-15 (9th Cir.1988). Hence, we conclude that appellant's 25-year sentence was authorized by statute. ²

2. Parole eligibility

Besides increasing the prison terms, the ADAA of 1986 also directed that certain violators not be eligible for parole. The no parole provisions, like the increased prison term provisions, were effective upon enactment (October 27, 1986). Thus, at the time of appellant's offense, Sec. 960(b)(1)(G) prohibited parole. See, e.g., United States v. Ocasio Figueroa, 898 F.2d 825, 828 n. 4 (1st Cir.1990) (no parole provision applicable to August 1987 offense); United States v. Cook, 859 F.2d 777 (9th Cir.1988) (defendant sentenced pursuant to 21 U.S.C. Sec. 960(b)(2) for April 7, 1987 offense not entitled to probation or parole); United States v. Posner, 865 F.2d 654 (5th Cir.1989) (no parole provision of 1986 amendments applied to February 1987 offense). Hence, appellant is not eligible for parole.

3. Special parole v. supervised release

In United States v. Ferryman, 897 F.2d 584 (1st Cir.), cert. denied, --- U.S ----, 111 S.Ct. 90, 112 L.Ed.2d 62 (1990), and United States v. Ocasio Figueroa, 898 F.2d 825 (1st Cir.1990), we traced at length the 1984 and 1986 amendments to the Comprehensive Drug Abuse Prevention and Control Act of 1970. We did so in the context of determining what type of post-confinement monitoring a person sentenced pursuant to 21 U.S.C. Sec. 841(b) for an offense committed between October 27, 1986 and November 1, 1987 should receive. What we said in those cases applies equally to 21 U.S.C. Sec. 960(b)(1) and (2), whose penalty provisions and legislative history parallel, in material part, Sec. 841(b)'s. Consequently, we do not here repeat that lengthy discussion or map out Sec. 960(b)(1) and (2)'s legislative history, but rather simply reiterate the conclusion. We concluded, in effect, in Ferryman and Ocasio that if, under the post-1984 amendment version of the relevant sentencing provision, the offender would have been subject to a special parole term, then Sec. 1004 of...