Kingsley v. United States

• Court: Court of Appeals for the First Circuit
• Decided: December 8, 1993
• Docket: 93-1250
• Status: Published

Opinion

USCA1 Opinion

September 22, 1993    [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 93-1250

MICHAEL J. KINGSLEY,

                                     Petitioner,

                                          v.

                              UNITED STATES OF AMERICA,

                                     Respondent.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                    [Hon. Frank H. Freedman, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
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                          Selya and Boudin, Circuit Judges.
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                                 ___________________

               Michael J. Kingsley on brief pro se.
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               A.  John  Pappalardo,  United  States  Attorney,  and  Kevin
               ____________________                                   _____
          O'Regan, Assistant United States Attorney, on brief for appellee.
          _______

__________________

                                  __________________

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Per Curiam.  Petitioner  Michael Kingsley challenges the
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            legality  of special  parole  terms imposed  as  part of  his

            sentence  for  multiple  drug violations.    He  argues that,

            because such sanctions were abolished between the time of his

            offenses  and the time of his  sentencing, the district court

            should have applied the law in effect on the latter date.  We

            disagree  and therefore affirm  the denial  of his  motion to

            correct sentence under 28 U.S.C.    2255 and/or Fed. R. Crim.

            P. 35(a). 

                 From March 1977  to May 1985, petitioner was  the leader

            of a twenty-three member organization engaged in distributing

            cocaine and marijuana  in western Massachusetts.   In January

            1987, he pled guilty to  22 separate offenses as follows: one

            count  of conspiracy to distribute cocaine,  21 U.S.C.   846,

            one count  of conspiracy  to distribute  marijuana, id.,  ten
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            counts of  cocaine distribution,  21 U.S.C.    841(a),  three

            counts   of  marijuana  distribution,   id.,  one   count  of
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            conducting a continuing criminal enterprise, 21 U.S.C.   848,

            and  six  related  tax  offenses.    Sentencing  occurred  on

            February  17,  1987.    At  the  government's  recommendation

            pursuant to a plea bargain, the district court imposed twelve

            ten-year prison terms (for the continuing criminal enterprise

            offense  and each of the cocaine  offenses) and ten five-year

            prison  terms (for each of  the marijuana and tax offenses)--

            all to be served concurrently.   The court also imposed three

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years  of  special parole  for  each  of  the eleven  cocaine

            offenses (the conspiracy  count and  ten substantive  counts)

            and  two  years of  special  parole  for  each of  the  three

            substantive marijuana offenses.  

                 In October  1992, petitioner  filed  the instant  motion

            seeking to vacate the special parole terms.  From his reading

            of various amendments to 21  U.S.C.   841(b) that occurred in

            the  mid-1980s, he  argued  that  the  statute  in  its  1987

            configuration imposed no type  of post-confinement monitoring

            for the  offenses at issue  here.  He further  contended that

            the district court was required to impose this allegedly more

            "lenient" penalty provision, rather than the one in effect at

            the time the offenses occurred.   The district court properly

            rejected  this analysis.1  Contrary to petitioner's view, the

            1987  version of    841(b) actually contained  more stringent

            penalties, including enhanced  prison sentences and terms  of

            supervised  release.  Applying  that provision  at sentencing

            thus  would have  violated  the  ex post  facto  clause.   We
                                             ______________

            explain briefly.

                 The  various  modifications  that     841(b)   underwent

            between  1984  and  1987   have  been  exhaustively  detailed

            elsewhere,  see, e.g.,  Gozlon-Peretz v.  United States,  498
                        ___  ____   _____________     _____________

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            1.  The  district court did modify one aspect of the judgment
            sua sponte.   Pursuant to Bifulco v. United  States, 447 U.S.
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            381 (1980),  it vacated the  special parole term  imposed for
            the cocaine conspiracy count. 

                                         -4-

U.S.  395, 399-403 (1991); Padilla Palacios v. United States,
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            932  F.2d 31,  32-33  (1st Cir.  1991)  (per curiam);  United
                                                                   ______

            States  v. Ocasio  Figueroa, 898 F.2d  825, 826-28  (1st Cir.
            ______     ________________

            1990), cert. denied, 113 S. Ct. 1001 (1993); United States v.
                   ____________                          _____________

            Ferryman, 897 F.2d 584, 586-88 (1st Cir.), cert.  denied, 498
            ________                                   _____________

            U.S. 830 (1990), and so need only be summarized  here.  Prior

            to October 12,  1984,   841(b) mandated a  three-year term of

            special parole for cocaine  offenses and a two-year term  for

            marijuana offenses.  Between that date  and October 27, 1986,

            an  anomalous  situation  existed.   The  statute  imposed no

            special  parole term  for  large-scale offenses  (e.g., those
                                                              ____

            involving one kilogram or more of cocaine), but retained such

            sanctions  for  lesser   offenses.    Compare  21   U.S.C.   
                                                  _______

            841(b)(1)(A) (Supp.  1984) with id.    841(b)(1)(B)-(C); see,
                                       ____ ___                      ___

            e.g., United  States v.  Santamaria, 788  F.2d 824, 829  (1st
            ____  ______________     __________

            Cir.  1986).   Finally,  it  is now  clear  that the  statute

            requires  a term  of  supervised  release  for  all  offenses

            occurring on or after October 27, 1986 (not November 1, 1987,

            as  petitioner suggests).  See, e.g., Gozlon-Peretz, 498 U.S.
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            at 409; United States v. Morris, 977 F.2d 677, 686  (1st Cir.
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            1992), cert. denied, 113 S. Ct.  1588 (1993).  Both the  1984
                   ____________

            and  1986 amendments,  of course,  also  enhanced the  prison

            terms prescribed by   841(b). 

                 Defendant is therefore mistaken in maintaining  that the

            statutory penalties existing  prior to October 12,  1984 were

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more  stringent than  those existing  in 1987.   Had  he been

            sentenced under  the latter,  he would  have been  exposed to

            longer  terms of  imprisonment.2    And  he would  have  been

            subject to periods  of supervised release at  least equal to,

            and  (depending on the  quantity of drugs  involved) possibly

            longer  than, the  earlier special  parole  terms--a fact  he

            overlooks entirely.  It is thus clear that application of the

            1987 penalties would  have been impermissible.   And, lastly,

            petitioner's contention that  the circumstances  here are  so

            ambiguous as to warrant invoking  the "rule of lenity" in his

            favor is  well off the  mark.  See, e.g.,  Gozlon-Peretz, 498
                                           ___  ____   _____________

            U.S. at 409-10; Ferryman, 897 F.2d at 591.3 
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            2.  Defendant   suggests    this   would   have    posed   no
            constitutional  difficulties  in  light of  the  government's
            sentencing  recommendations under  the  plea agreement.    He
            ignores the fact that the  district court was not required to
            accept those recommendations.

            3.  While we  need not  address the issue,  we note  that the
            second prong of petitioner's argument--that any  reduction in
            criminal penalties must be applied retroactively, even absent
            any  specific  provision  to  that  effect--appears   equally
            problematic.  See generally United States v. Jacobs, 919 F.2d
                          _____________ _____________    ______
            10 (3d Cir. 1990) (applying "saving statute," 1 U.S.C.   109,
            to find change in drug offense classification, which occurred
            between time  of  offense and  time of  sentencing and  which
            would  have  rendered   defendant  eligible  for   probation,
            inapplicable), cert. denied,  111 S. Ct. 1333  (1991); Lerner
                           ____________                            ______
            v. Gill,  751 F.2d  450, 456  (1st Cir.)  (rejecting argument
               ____
            that  "a state  must  retroactively  afford  a  prisoner  the
            benefits  of any less stringent legislation adopted after the
            crime"), cert. denied, 472 U.S. 1010 (1985).  See also United
                     ____________                         ________ ______
            States v.  Tarvers,  833  F.2d 1068,  1077  (1st  Cir.  1987)
            ______     _______
            (upholding special parole term imposed under pre-1984 version
            of   841(b), even though sentencing occurred in 1985).  

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The same reasoning applies to the two offenses here that

            occurred  after  October   12,  1984:  count  14   (involving

            distribution of cocaine  on October 29,  1984), and count  15

            (involving possession of marijuana with intent to  distribute

            on May 3, 1985).   The penalty provisions applicable to these

            offenses,  21 U.S.C.    841(b)(1)(B)-(C)  (Supp.  1984), were

            less stringent than  those in effect in 1987.   Moreover, the

            1984 statute required special  parole in both instances.   Of

            course, had count  14 involved a kilogram or  more of cocaine

            and  thus  fallen  within  the  1984  version  of  subsection

            (b)(1)(A) rather than (b)(1)(B), no special parole would have

            been warranted with respect thereto.  Yet the district  court

            specifically  determined that  this offense  was  governed by

            subsection (b)(1)(B)  and petitioner has not  challenged this

            finding on appeal.

                 Affirmed.
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