U.S. v. Gozlon-Peretz, GOZLON-PERET

• Decision Date: 16 October 1989
• Docket Number: GOZLON-PERET,A,No. 89-5330,89-5330
• Citation: 894 F.2d 1402
• Parties: UNITED STATES of America v. Mosheppellant. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 1402

894 F.2d 1402

UNITED STATES of America v. Moshe GOZLON-PERETZ, Appellant.

No. 89-5330.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Oct. 16, 1989.

Decided Jan. 25, 1990.

As Amended Feb. 6, 1990.

Pamela A. Wilk, Philadelphia, Pa., for appellant.

Samuel A. Alito, Jr., U.S. Atty., Michael V. Gilberti, Asst. U.S. Atty., Edna Ball Axelrod, Chief Appeals Div., U.S. Atty's. Office, Newark, N.J., for appellee.

Before BECKER, COWEN and SEITZ, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

This appeal by Moshe Gozlon-Peretz challenges the imposition of a five-year term of special parole, as part of a sentence for a drug conviction, on the ground that in February 1987, when the offense was committed, it was not punishable by a special parole term. During the 1970's and 1980's, special parole became a staple of the penalty scheme prescribed by Congress for drug offenses. However, in amending 21 U.S.C. Sec. 841(b) pursuant to the enactment of the Comprehensive Crime Control Act of 1984, Congress failed to provide for special parole in Sec. 841(b)(1)(A), which defines the high volume drug crime for which appellant was convicted and sentenced.

Appellant acknowledges that in the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570 Tit. I (1986) ("the ADAA"), which amended the 1984 Act, Congress created an alternative to special parole--the so-called term of supervised release. However, appellant contends that Congress intended supervised release to be complementary to the Sentencing Reform Act's new guidelines sentencing regime, which did not become effective until November 1, 1987. Because the offense in question occurred in February 1987, appellant submits that he is not subject to a term of supervised release either.

The government responds that Congress intended the 1986 legislation, which was enacted on October 27, 1986 and had no effective date provisions, to become effective immediately. Such a reading, the government maintains, requires the imposition of special parole, not supervised release, in this case. We do not agree with the government's contention that an immediate effective date would resuscitate the moribund special parole sentencing option, but we do believe that Congress intended the supervised release provisions to become effective immediately. Accordingly, we will vacate the judgment of sentence, and remand to the district court with directions to vacate the sentence of special parole and to impose a term of supervised release. ¹

I.

A.

The background facts are set forth in our opinion in United States v. Levy, 865 F.2d 551 (3d Cir.1989) (in banc). There, we vacated Gozlon-Peretz's sentence and remanded for resentencing. On remand, the district court imposed large fines and lengthy prison terms followed by a five-year special parole term, pursuant to 21 U.S.C. Sec. 841(b)(1)(A).

Before 1984, certain sentences imposed under the applicable sentencing provision in this case, 21 U.S.C. Sec. 841(b), were required to include a special parole term. See 21 U.S.C. Sec. 841(b) (1982). On October 12, 1984, Congress enacted the Comprehensive Crime Control Act, Pub.L. No. 98-473, 98 Stat. 1837, 1976 (1984) ("the Act"), which amended existing federal drug law. ² Among these amendments, the Act created three levels of offenses based upon the weight of the drugs in question. Specifically, Congress amended Sec. 841(b) by:

(1) eliminating special parole for offenses committed after the effective date of the Act (originally November 1, 1986, and later changed to November 1, 1987);

(2) redesignating old Secs. 841(b)(1)(A) and (B) as new Secs. 841(b)(1)(B) and (C), respectively; and

(3) creating a new class of sentences under "new" Sec. 841(b)(1)(A), which provided for higher sentences for greater weights of drugs.

98 Stat. at 2030, 2068. See also United States v. De Los Reyes, 842 F.2d 755, 757 (5th Cir.1988). Apparently through oversight, new Sec. 841(b)(1)(A) did not mention a special parole term. Acknowledging that oversight, neither party here contends that special parole or supervised release can be imposed for crimes committed between October 12, 1984 and October 27, 1986, the date of the ADAA's enactment. See United States v. Phungphiphadhana, 640 F.Supp. 88 (D.Nev.1986); United States v. Mowery, 703 F.Supp. 940 (M.D.Ga.1989). Appellant maintains, however, that special parole cannot be imposed on any Sec. 841(b)(1)(A) offense committed between October 12, 1984, and November 1, 1987, the effective date of the Sentencing Reform Act.

In Sec. 1002 of the ADAA, Pub.L. No. 99-570, 100 Stat. 3207-2 to 3207-4 (1986), Congress again amended Sec. 841(b) by:

(1) striking the existing Secs. 841(b)(1)(A) and (B);

(2) reattaching and redesignating Sec. 841(b)(1)(C) as Sec. 841(b)(1)(D);

(3) adding three new subsections: new Secs. 841(b)(1)(A), (B), and (C);

(4) attaching mandatory "supervised release" to new Secs. 841(b)(1)(A), (B), and (C).

The amendments thus prescribed four offense levels instead of three, based upon the weight of the drugs. These enhanced prison terms and fines and the attendant terms of "supervised release" were made applicable to the first three parts of Sec. 841(b), including Sec. 841(b)(1)(A), the section under which appellant was sentenced. Section 1002 did not carry an express provision for its effective date.

In contrast, section 1004 of the ADAA, Pub.L. No. 99-570, 100 Stat. 3207, 3207-6 (1986), which deleted all remaining references to special parole terms and substituted for them the term "supervised release," specifically provided that it was to take effect at the same time as 18 U.S.C. Sec. 3583, which was part of the Sentencing Reform Act, 18 U.S.C. Sec. 3551 et seq. (Supp. IV 1986). Because of a legislative postponement, that Act, originally scheduled to go into effect on November 1, 1986, did not go into effect until November 1, 1987. See Pub.L. No. 99-217, Sec. 4, 99 Stat. 1728 (1985).

B.

We find that under Sec. 1002 of the ADAA, appellant is subject to a mandatory minimum five-year term of supervised release in addition to his term of imprisonment. That is the result reached on essentially identical facts in United States v. Torres, 880 F.2d 113 (9th Cir.1989), which held that the regime of supervised release under Sec. 841(b)(1)(A) came into being on October 27, 1986, the date of enactment of the ADAA. A number of other cases hold that Sec. 1002 did not go into effect (and supervised release for drug cases did not come into being) until November 1, 1987. See United States v. Whitehead, 849 F.2d 849, 860 (4th Cir.1988); United States v. Smith, 840 F.2d 886, 889 (11th Cir.1988); United States v. Byrd, 837 F.2d 179, 181 (5th Cir.1988). These cases are arguably explained by the fact that they all involved lower volume drug offense provisions, for which special parole was not abolished until November 1, 1987. See Sec. 1004(b) of the ADAA, 100 Stat. at 3207-6. In each of these cases, the courts vacated terms of supervised release and directed that the district court impose terms of special parole instead, thus treating supervised release and special parole as somewhat interchangeable concepts. That course of action cannot be followed here because no special parole term is available for violations of Sec. 841(b)(1)(A) occurring after October 12, 1984.

We do not dispute that special parole and supervised release are closely related mechanisms for post-release supervision of federal offenders. ³ However, the substitution of supervised release for special parole of federal offenders was not accidental:

The legislative history of the [Sentencing Reform Act of 1984] shows that Congress was dissatisfied with the "old" law which conditioned the length of time a defendant was supervised on parole solely on the length of the original term; the smaller percentage of the term a prisoner served in prison, the longer the period of parole supervision. Congress decided to replace this system with one that would make both the existence and the length of post-incarceration supervision dependent on the judge's decision as to whether community supervision was needed in an individual case. The Senate Report in the section-by-section analysis explained this approach:

Unlike current law, however, probation officers will only be supervising those releasees from prison who actually need supervision, and every releasee who does need supervision will receive it.

Slawsky, Looking at the Law, 53 Federal Probation 69, 70 (June 1989) (quoting S.Rep. No. 225, 98th Cong., 2d Sess 125, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3308). Thus, Congress had more than formal reasons for supplanting (special) parole with supervised release, and to the extent that the Whitehead, Smith, and Byrd courts found the two mechanisms to be substantively the same, we disagree with their holdings.

We hold that supervised release became effective on October 27, 1986. We acknowledge that supervised release was conceptually linked to the regime of the Sentencing Reform Act, which did not become effective until November 1, 1987, but we do not believe that supervised release terms are inseparable from the Sentencing Reform Act's regime. Two basic principles of statutory construction compel our holding. First, absent indication to the contrary, a statute takes effect on the date of its enactment. See Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir.1989); 2 Sutherland's Statutory Construction Sec. 33.06 (4th ed. 1986). Second, courts must impute a reasonable purpose to Congress, and it is unreasonable to think that Congress wanted to maintain special parole for all offenses committed up until November 1, 1987. A number of considerations support this view, as reasoned by Ms. Slawsky, Assistant General Counsel of the Administrative Office of the United States Courts:

[G]iven the relatively long periods of incarceration required by these sections, by the time...