United States v. Pellerito ( 1997 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1559
UNITED STATES,
Appellee,
v.
GUISEPPE PELLERITO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Boudin, Circuit Judge.
George F. Murphy on brief for appellant.
John C. Keeney, Acting Assistant Attorney General, and Corbin A.
Weiss, Trial Attorney, Department of Justice, on Motion for Summary
Disposition and Memorandum in Support for appellee.
December 19, 1997
Per Curiam. Appellant Giuseppe Pellerito appeals the
denial of his motion to correct an illegal sentence, pursuant
to Fed. R. Crim P. 35(a). We affirm.
Pellerito raises two arguments in support of this claim.
First, he asserts that his involvement in the conspiracy for
which he was sentenced ended before 1984 and therefore he
should have been sentenced in accord with the pre-1984
penalty provisions of 21 U.S.C. 846. Second, he claims
that, even if his involvement lasted beyond November 1984,
the penalty provisions of section 846 were not changed until
1988. Neither argument has merit.
Pellerito claims that the indictment to which he pled
guilty only referred to his involvement in the conspiracy
during the years of 1978 and 1979. However, while the
indictment is not entirely clear as to when his involvement
in the conspiracy ended, the government stated, without
objection, at the change of plea hearing that Pellerito's
involvement lasted "through 1985" and the presentence
investigation report states that Pellerito's involvement
lasted at least until the summer of 1985.
Pellerito also claims that, even if his involvement in
the conspiracy lasted beyond November 1984, the penalty
provisions of section 846 were not changed until 1988. This
claim is without merit.
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In 1970 Congress enacted the Comprehensive Drug Abuse
and Control Act. One section of the act, now codified as 21
U.S.C. 841, provided for up to 15 years imprisonment and a
$25,000 fine or both, for possession with intent to
distribute or the distribution of narcotic drugs. Another
section, now 21 U.S.C. 846, provided that conspiracy for
"any offense in this subchapter is punishable by imprisonment
or fine or both which may not exceed the maximum punishment
prescribed for the offense, the commission of which was the
object of the . . . conspiracy." While the language of
section 846 was not changed until 1988, section 841 was
amended in 1984 to increase the punishments to a maximum of
20 years and a fine of $250,000 or both. Pellerito claims
that, since section 846 was not amended until 1988, its
penalty provisions remained the same as those originally set
in 1970, i.e., a maximum of 15 years imprisonment or a fine
of $25,000 or both.
According to the Supreme Court, "[a]s a general rule,
where the legislation dealing with a particular subject
consists of a system of general provisions indicative of a
settled policy, new enactments of a fragmentary nature on
that subject are to be taken as intended to fit into the
existing system and to be carried into effect conformably to
it, excepting as a different purpose is plainly shown."
United States v. Jefferson Electric Co., 291 U.S. 386, 396
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(1933) (citing cases). In the instant case, Congress
originally enacted sections 841 and 846 as "part of a
comprehensive legislative scheme [the Comprehensive Drug
Abuse and Control Act of 1970] designed to halt drug abuse in
the United States." United States v. Baker, 609 F.2d 134,
137 (5th Cir. 1980). Pursuant to that comprehensive scheme,
the punishment for conspiracies was not to "exceed the
maximum punishment prescribed for the offense." 21 U.S.C.
846. The 1984 amendment, increasing penalties for violations
of the offense, was clearly a "fragmentary" enactment which,
in turn, was designed to halt drug trafficking. Since there
is no indication that Congress intended in 1984 to modify the
prior relation between the punishment scheme for the offense
and that for conspiracy, the amendment must be carried into
effect conformably with that scheme, i.e., the punishment for
conspiracy must still be limited to the "maximum punishment
for the offense" which would now be 20 years imprisonment and
a $250,000 fine, or both. Cf. United States v. Layton, 509
F.Supp. 212, 225 (N.D.Cal.) (18 U.S.C. 1117, which provides
punishment for those who "conspire to violate sections 1111,
1114 or 1116 of this title," incorporates amendments to those
sections), appeal dismissed, 645 F.2d 681 (9th Cir.), cert.
denied, 452 U.S. 972 (1981)
Pellerito reliance on Bifulco v. United States, 447 U.S.
381 (1980) is misplaced. In Bifulco, the court held that the
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penalty provisions of 846 did not incorporate the "special
parole" provisions of 841. The court reasoned that, since
846 referred only to "imprisonment or fines," it did not
authorize other penalties, such as special parole, which were
neither. This reasoning, however, does not apply to the
instant case since the issue here is "imprisonment" and
"fines" which are specifically authorized in 846.
Affirmed. See 1st Cir. Loc. R. 27.1.
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