United States v. Martinez

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 93-7372 _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOSE LUIS MARTINEZ

Defendant-Appellant.

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Appeal from the United States District Court for the Southern District of Texas

(April 8, 1994)

Before SMITH and BARKSDALE, Circuit Judges, and WALTER,* District Judge.

JERRY E. SMITH, Circuit Judge:

Jose Martinez appeals the district court's denial of his

motion to change the post-imprisonment portion of his sentence from

a special parole term to supervised release. Finding no error, we

affirm.

I.

* District Judge of the Western District of Louisiana, sitting by designation. Martinez pleaded guilty in April 1988 to possession with

intent to distribute approximately fifteen kilograms of marihuana,

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D). He received

a sentence of four years' confinement, a four-year special parole

term, and a special assessment of $50.

In February 1993, following his release from prison,

Martinez's supervising probation officer issued a probable cause

warrant for Martinez's arrest based upon a belief that Martinez had

violated his parole. Martinez surrendered and was imprisoned in

March 1993 for violating parole.

Martinez moved to correct his sentence, arguing that he should

have received a term of supervised release under § 1002 of the

Anti-Drug Abuse Act of 1986 ("ADAA"), and Gozlon-Peretz v. United

States, 498 U.S. 395 (1991). The district court denied the motion

as the statute under which Martinez was convicted, 21 U.S.C.

§ 841(b)(1)(D), was not governed by § 1002.

II.

Martinez argues that, under the reasoning of Gozlon-Peretz,

§ 1002 designates offenses under 21 U.S.C. § 841(b)(1)(D) as having

supervised release. We review the motion to correct sentence under

FED. R. CRIM. P. 35 for gross abuse of discretion. United States v.

Hanyard, 762 F.2d 1226, 1228 (5th Cir. 1985).

The issue in this case is not the effective date of § 1002,

see Gozlon-Peretz, 498 U.S. at 409, but whether the offense in this

case was designated as an offense requiring supervised release

2 under § 1002. We conclude that it was not. Section 1002

redesignated § 841(b)(1)(C) as § 841(b)(1)(D) and amended

§ 841(b)(1)(A), (b)(1)(B), and (b)(1)(C) to reflect terms of

supervised release instead of special parole. The special parole

term in § 841(b)(1)(D) remained unaffected until November 1, 1987,

when it was amended by § 1004 of the ADAA. Gozlon-Peretz, 498 U.S.

at 406 n.10. Since Martinez's offense occurred in March 1987, the

district court correctly denied his motion to replace his special

parole term with a term of supervised release.

AFFIRMED.