Toro-Aristizabal v. United States

Court of Appeals for the First Circuit·Decided February 15, 1994·No. 93-1888·Published

Opinion

USCA1 Opinion

February 15, 1994
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 93-1888

JAIME TORO-ARISTIZABAL,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]
___________________

____________________

Before

Breyer, Chief Judge,
___________
Selya and Cyr, Circuit Judges.
______________

____________________

Jaime Toro-Aristizabal on brief pro se.
______________________
A. John Pappalardo, United States Attorney, and Stephen P.
____________________ ___________
Heymann, Assistant United States Attorney, on brief for appellee.
_______

____________________

____________________

Per Curiam. Appellant Jaime Toro-Aristizabal was
__________

charged, in a multi-count indictment, with conspiracy to

possess with intent to distribute and distribution of a

quantity of cocaine between August 1986 and March 1988, in

violation of 21 U.S.C. 846 (count 1), possession with

intent to distribute and distribution of cocaine in August

1986, in violation of 21 U.S.C. 841(a)(1) (count 3) and

eleven separate incidents of possession with intent to

distribute cocaine (counts 4 through 14) during the period

November 1986 through July 1987. He was convicted of all of

these violations after a jury trial. We affirmed his

conviction on direct appeal. See United States v. David, 940
___ _____________ _____

F.2d 722, 739 (1st Cir.), cert. denied, 112 S. Ct. 605
____________

(1991).

In this 2255 motion, appellant raises his

inability to pay the $20,000 fine he received on the count 3

conviction. He also, in other pleadings filed in the

district court, alluded to the following issues: (1) the

court should not have considered, in determining appellant's

sentence under the sentencing guidelines, any quantities of

cocaine involved in transactions which occurred prior to the

effective date of the guidelines; (2) the sentencing court

incorrectly sentenced him to a term of imprisonment which

included a term of supervised release in violation of 21

U.S.C. 846 and contrary to the policy of lenity in

construing ambiguous statutes; and (3) he received

ineffective assistance of counsel.

Subsequently, an attorney was appointed to

represent appellant. He filed a new memorandum in which only

the issue concerning the fine was raised. The district court

then denied the petition. This appeal ensued. We have

reviewed the parties' briefs and the record and affirm the

judgment of the district court as to the $20,000 fine for

essentially the reasons stated in the court's memorandum,

dated July 26, 1993. We only add that the fine comports with

the factors listed in 18 U.S.C. 3622(a), which applied to

the count 3 conviction.

As for appellant's assertion that he should not

have received a term of parole or supervised release, we

first note that this argument is relevant only to counts 3

and 4 to 14. On Count 1, he was sentenced to a term of

imprisonment; this sentence did not include a term of
___

supervised release or parole. Second, 846 applies to

conspiracies. The remaining counts did not charge violations

of 846. In any event, the sentences imposed on these

counts were not illegal.

Under count 3 -- the August 1986 conviction for

possession and distribution -- the court sentenced appellant

to 15 years imprisonment. In August 1986, 841(b)(1)(B)

provided that "[a]ny sentence imposing a term of imprisonment

-3-

under this paragraph shall . . . impose a special parole term

of at least 3 years in addition to such term of imprisonment

. . . ." Thus, the special parole portion of the sentence

under count 3 is correct.

The court sentenced appellant on the remaining

eleven counts to concurrent terms of imprisonment of

seventeen years and six months and concurrent five-year terms

of supervised release. These counts covered the period

November 13, 1986 to July 15, 1987. Section 1002 of the

Anti-Drug Abuse Act of 1986, enacted on October 27, 1986,

replaced "special parole term" with a "term of supervised

release" for narcotic offenses committed in violation of 21

U.S.C. 841(b)(1)(A), (B) and (C). In the Sentencing Reform

Act of 1984, however, Congress had deferred the effective

date for the elimination of special parole to November 1,

1987. In Gozlon-Peretz v. United States, 498 U.S.
_____________ _____________

395 (1991), the Supreme Court held that the supervised

release provisions of the ADAA applied for the interim period

October 27, 1986 to November 1, 1987. Id. at 410. Because
___

the dates of counts 4 to 14 fall in this time period,

appellant was correctly sentenced to terms of supervised

release.

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USCA1 Opinion



February 15, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 93-1888

                               JAIME TORO-ARISTIZABAL,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Joseph L. Tauro, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Selya and Cyr, Circuit Judges.
                                           ______________

                                 ____________________

            Jaime Toro-Aristizabal on brief pro se.
            ______________________
            A.  John  Pappalardo,  United  States  Attorney,  and  Stephen  P.
            ____________________                                   ___________
        Heymann, Assistant United States Attorney, on brief for appellee.
        _______

____________________

____________________

Per Curiam.   Appellant Jaime  Toro-Aristizabal was
                      __________

            charged,  in  a multi-count  indictment,  with  conspiracy to

            possess  with  intent  to distribute  and  distribution  of a

            quantity of  cocaine between August  1986 and March  1988, in

            violation  of 21  U.S.C.    846  (count  1), possession  with

            intent  to distribute and  distribution of cocaine  in August

            1986, in  violation of  21 U.S.C.    841(a)(1) (count  3) and

            eleven  separate  incidents  of  possession  with  intent  to

            distribute  cocaine (counts 4  through 14) during  the period

            November 1986 through  July 1987.  He was convicted of all of

            these  violations  after  a  jury trial.    We  affirmed  his

            conviction on direct appeal.  See United States v. David, 940
                                          ___ _____________    _____

            F.2d  722, 739  (1st  Cir.),  cert. denied,  112  S. Ct.  605
                                          ____________

            (1991).

                      In  this     2255   motion,  appellant  raises  his

            inability to pay the $20,000 fine  he received on the count 3

            conviction.   He  also,  in  other  pleadings  filed  in  the

            district court, alluded  to the  following issues:   (1)  the

            court  should not have considered, in determining appellant's

            sentence under the sentencing  guidelines, any quantities  of

            cocaine  involved in transactions which occurred prior to the

            effective  date of the  guidelines; (2) the  sentencing court

            incorrectly sentenced  him to  a term  of imprisonment  which

            included  a term  of supervised  release in  violation  of 21

            U.S.C.     846  and  contrary  to the  policy  of  lenity  in

construing   ambiguous   statutes;   and  (3)   he   received

            ineffective assistance of counsel.

                      Subsequently,   an   attorney  was   appointed   to

            represent appellant.  He filed a new memorandum in which only

            the issue concerning the fine was raised.  The district court

            then  denied the  petition.   This  appeal ensued.   We  have

            reviewed  the parties' briefs  and the record  and affirm the

            judgment of  the district  court as to  the $20,000  fine for

            essentially  the  reasons stated  in the  court's memorandum,

            dated July 26, 1993.  We only add that the fine comports with

            the factors listed  in 18 U.S.C.   3622(a),  which applied to

            the count 3 conviction.

                      As  for appellant's  assertion that  he  should not

            have  received a  term  of parole  or supervised  release, we

            first note  that this argument  is relevant only to  counts 3

            and 4 to  14.   On Count  1, he was  sentenced to  a term  of

            imprisonment;  this  sentence  did  not  include  a  term  of
                                                ___

            supervised  release  or parole.    Second,    846  applies to

            conspiracies.  The remaining counts did not charge violations

            of    846.   In  any event,  the sentences  imposed on  these

            counts were not illegal.

                      Under count  3 --  the August  1986 conviction  for

            possession and distribution -- the  court sentenced appellant

            to 15  years imprisonment.   In  August 1986,    841(b)(1)(B)

            provided that "[a]ny sentence imposing a term of imprisonment

-3-

under this paragraph shall . . . impose a special parole term

            of at least 3  years in addition to such term of imprisonment

            . . .  ."  Thus, the  special parole portion of  the sentence

            under count 3 is correct.

                      The court  sentenced  appellant  on  the  remaining

            eleven  counts  to  concurrent   terms  of  imprisonment   of

            seventeen years and six months and concurrent five-year terms

            of  supervised  release.   These  counts  covered  the period

            November  13, 1986  to July 15,  1987.   Section 1002  of the

            Anti-Drug Abuse  Act of  1986, enacted on  October 27,  1986,

            replaced "special  parole term"  with a  "term of  supervised

            release" for narcotic  offenses committed in violation  of 21

            U.S.C.   841(b)(1)(A), (B) and (C).  In the Sentencing Reform

            Act of  1984, however,  Congress had  deferred the  effective

            date for  the elimination  of special  parole to November  1,

            1987.          In  Gozlon-Peretz v.  United States,  498 U.S.
                               _____________     _____________

            395  (1991), the  Supreme  Court  held  that  the  supervised

            release provisions of the ADAA applied for the interim period

            October 27,  1986 to November 1, 1987.   Id. at 410.  Because
                                                     ___

            the  dates  of counts  4  to 14  fall  in  this time  period,

            appellant  was correctly  sentenced  to  terms of  supervised

            release.

                      Because appellant's sentences were legal, his claim

            of ineffective assistance of counsel fails.  As for his claim

            that the  court  erred in  calculating  his sentence  on  the

-4-

conspiracy  count  by  referring  to  conduct  predating  the

            effective  date  of  the  sentencing guidelines,  we  already

            rejected this argument in appellant's direct appeal.  See 940
                                                                  ___

            F.2d at 740.  Finally, because the grounds presented in the  

            2255 motion  turned on  legal issues,  we reject  appellant's

            claim that he was entitled to an evidentiary hearing.

                      The judgment of the district court is affirmed.
                                                            ________

-5-

Toro-Aristizabal v. United States, (1st Cir. 1994).

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