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[NOT FOR PUBLICATION]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.
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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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