Toro-Aristizabal v. United States ( 1994 )

USCA1 Opinion

          February 15, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 93-1888

                               JAIME TORO-ARISTIZABAL,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

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

                                 Breyer, Chief Judge,
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                            Selya and Cyr, Circuit Judges.
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            Jaime Toro-Aristizabal on brief pro se.
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            A.  John  Pappalardo,  United  States  Attorney,  and  Stephen  P.
            ____________________                                   ___________
        Heymann, Assistant United States Attorney, on brief for appellee.
        _______


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                      Per Curiam.   Appellant Jaime  Toro-Aristizabal was
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            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
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            F.2d  722, 739  (1st  Cir.),  cert. denied,  112  S. Ct.  605
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            (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
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            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



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            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.
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            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
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            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



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            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
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            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.
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