JAMES S. BLACKMER, PETITIONER V. UNITED STATES OF AMERICA No. 90-6766 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit Brief For The United States OPINION BELOW The court of appeals' opinion (Pet. App. A5591-A5595) is reported at 909 F.2d 66. JURISDICTION The judgment of the court of appeals was entered July 16, 1990. A petition for rehearing was denied on October 3, 1990. Pet App. C. The petition for a writ of certiorari was filed on January 2, 1991 (the day after a federal holiday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the supervised release provisions of the Anti-Drug Abuse Act of 1986 became effective immediately upon enactment on October 27, 1986. 2. Whether the version of Fed. R. Crim. P. 35(a) in effect at the time petitioner committed his offense applies to petitioner's sentence. STATEMENT 1. Petitioner pleaded guilty and was convicted in the United States District Court for the District of Vermont on one count of possession with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. 841(a)(1). The activities on which the charge was based occurred in September 1987. Petitioner was sentenced under 21 U.S.C. 841(b)(1)(B) (Supp. IV 1986) to six years' imprisonment, to be followed by a four-year term of supervised release. Pet. App. A5595. On May 18, 1989, petitioner filed a motion under the version of Fed. R. Crim. P. 35(a) that was in effect at the time of his offense to correct the part of his sentence imposing a term of supervised release. Pet. 5. The district court agreed with petitioner's argument that the supervised release provisions in 21 U.S.C. 841(b)(1) (Supp. IV 1986) did not become effective until November 1, 1987. Pet. App. D5-D6. The district court therefore vacated the four-year term of supervised release and replaced it with a three-year term of special parole, the form of post-confinement monitoring applicable under the 1984 version of Section 841(b)(1)(B). Id. at D10. 3. The court of appeals affirmed. Based on its decision in Mercado v. United States, 898 F.2d 291 (2d Cir. 1990), the court of appeals agreed with the district court that the supervised release provisions of Section 841(b) that were enacted in 1986 did not become effective until November 1, 1987. Accordingly, the court of appeals affirmed the district court's conclusion that, for offenses committed between October 27, 1986, and November 1, 1987, special parole, rather than supervised release, was the appropriate form of post-confinement monitoring under Section 841(b). Pet. App. A5594, A5595. The court of appeals rejected petitioner's claim that the version of Rule 35(a) in effect at the time petitioner committed his offense could not be applied after November 1, 1987, to correct an illegal sentence imposed before that date. At the time petitioner committed his offense, Rule 35(a) provided that "(t)he court may correct an illegal sentence at any time," /1/ while the version of Rule 35(a) that became effective as of November 1, 1987, permits the district court to correct a sentence only if it has been found on appeal under 18 U.S.C. 3742 to have been imposed in violation of law. /2/ The court of appeals held that the former version of Rule 35(a) continued to apply to offenses committed before November 1, 1987, and that the district court had authority under the Rule to correct petitioner's sentence from supervised release to special parole. Pet. App. A5394. ARGUMENT 1. Petitioner claims (Pet. 12-18) that his sentence to a three-year term of special parole is unauthorized by the penalty provision that is applicable to his offense. He is right, but for the wrong reason. Petitioner claims that the district court should have imposed no term of post-confinement monitoring when in fact it is now clear that the court was required to impose a term of post-confinement monitoring in the form of supervised release. Petitioner argues that he should have no term of post-confinement monitoring at all because, in his view, he should have been sentenced under the 1984 version of Section 841(b)(1)(A), which was in effect prior to the enactment of the Anti-Drug Abuse Act of 1986 (ADAA). As this Court recently ruled in Gozlon-Peretz v. United States, No. 89-7370 (Feb. 19, 1991), however, the 1984 version of the Drug Control Act is not the one that applies to offenses such as petitioner's. In Gozlon-Peretz, the Court held that the supervised release provisions of the Anti-Drug Abuse Act of 1986 became effective upon enactment and applied to offenses committed on or after October 27, 1986. Thus, the district court's initial sentence in this case was correct: the court was required to impose at least a four-year term of supervised release under 21 U.S.C. 841(b)(1)(B) (Supp. IV 1986). Because petitioner's current sentence is illegal (although not for the reason or in the way that petitioner suggests), this Court should grant the petition, vacate the judgment of the court of appeals, and remand the case for disposition in light of Gozlon-Peretz. 2. Petitioner also argues (Pet. 7-12) that the district court lacked authority under the pre-1987 version of Rule 35(a) to correct his illegal sentence at the behest of the government or on the court's own motion. /3/ The court of appeals correctly rejected that argument. In discussing the effective date provision as applied to the amended version of Rule 35, the Senate Report explained the manner in which offenses committed before and after the effective date of the Act would be handled: The title will apply to any offense or other event occurring on or after the effective date. * * * As to an offense committed prior to the effective date, the preexisting law will apply as to all substantive matters including the imposable sentence. If a trial occurs or a sentence is imposed on or after the effective date for an offense committed before the effective date, the procedural and administrative provisions of the title will apply except to the extent that such provisions are inconsistent with the preexisting law. S. Rep. No. 225, 98th Cong., 1st Sess. 189 (1983). Because the pre-1987 version of Rule 35(a) is a "procedural and administrative" provision that allows correction of an illegal sentence "at any time," the Senate Report makes clear that Congress intended the former version of Rule 35(a) to continue to apply to sentences imposed for crimes committed before November 1, 1987, because the new Rule 35(a) is "inconsistent with the preexisting law" in that respect. If there were any doubt on that score, it was eliminated when Congress passed the Sentencing Act of 1987, Pub. L. No. 100-182, 101 Stat. 1266. Section 2(a) of that Act amended the 1984 Act to provide explicitly that the sentencing provisions of the 1984 Act, when they became effective, were applicable "only for offenses committed after the taking effect of (the Sentencing Reform Act), i.e., November 1, 1987. Every court of appeals that has addressed the issue has held, in agreement with the Second Circuit in this case, that the pre-1987 version of Rule 35(a) applies, even after November 1, 1987, to sentences imposed for offenses committed before that date. See, e.g., United States v. Holm, 877 F.2d 677, 678 (8th Cir. 1989); United States v. Simpson, 885 F.2d 36, 38 (3d Cir. 1989); United States v. Cochran, 883 F.2d 1012, 1014 n.3 (11th Cir. 1989); United States v. Ortega, 859 F.2d 327, 334 n.11 (5th Cir. 1988). We have found no case supporting petitioner's claim that the amended version of Rule 35(a) applies to these sentences. /4/ In support of his argument that the new Rule 35(a) applies to his offense, petitioner relies on a provision of the Sentencing Act of 1987, Pub. L. No. 100-182, Section 22, 101 Stat. 1271, which states: "The amendment to rule 35(b) of the Federal Rules of Criminal Procedure made by the order of the Supreme Court on April 29, 1985, shall apply with respect to all offenses committed before (November 1, 1987)." Petitioner reasons that this provision, which was enacted after the revised Rule 35 went into effect, but dictates that an amendment to the old Rule 35(b) shall be applicable to pre-November 1, 1987 offenses, would have been necessary only if the pre-1987 version of Rule 35 did not otherwise continue to apply to pre-November 1, 1987 offenses. He further asserts that the 1987 amendment guarantees only that subsection (b) (and not subsection (a)) of the pre-1987 Rule continues to apply to pre-November 1, 1987, offenses after that date. This argument misapprehends the purpose of the 1987 Sentencing Act provision on which petitioner relies. The "amendment to rule 35(b) of the Federal Rules of Criminal Procedure made by the order of the Supreme Court on April 29, 1985" that is referred to in the 1987 Sentencing Act provision added the clarification that the sentencing court must determine a Rule 35(b) motion "within a reasonable time" after the motion is filed. See 471 U.S. 1173 (1985). At the same time that the Supreme Court ordered this amendment to Rule 35(b), it provided that the amendment was to "be effective until November 1, 1986, when Section 215(b) of the Comprehensive Crime Control Act of 1984 * * * goes into effect." 471 U.S. 1169 (1985). However, on December 26, 1985, Congress postponed the effective date of the Comprehensive Crime Control Act -- including the new version of Rule 35(b) -- to November 1, 1987, see Pub. L. No. 99-217, Section 4, 99 Stat. 1728 (1985). It then became necessary to extend the effectiveness of the Court's 1985 amendment to Rule 35(b) to reflect the one-year postponement of the repeal of the old Rule 35, and its replacement with the revised version. Congress accomplished that task through the December 7, 1987, Sentencing Act, which ensured that the 1985 amendment to Rule 35(b) would continue in effect for all offenses committed prior to November 1, 1987. See H.R. Rep. No. 169, 100th Cong., 1st Sess. 17-18 (1987). As we noted above, Congress had already enacted Section 2 of the Sentencing Act of 1987, the general rule that the newly effective provisions of the 1984 Act, including the amended version of Rule 35(a), would not apply to offenses committed before November 1, 1987. Thus, the 1987 Sentencing Act in no way casts doubt on the continued application of the pre-1987 version of Rule 35 to offenses committed before that date. CONCLUSION The petition for a writ of certiorari should be granted, the judgment vacated, and the case remanded for disposition in light of the decision in Gozlon-Peretz v. United States, No. 89-7370. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General RICHARD A. FRIEDMAN Attorney MARCH 1991 /1/ The pre-1987 version of Rule 35 provided as follows: (a) Correction of Sentence. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. (b) Reduction of Sentence. A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision. /2/ The new Rule 35 provides as follows: (a) Correction of a Sentence on Remand. The court shall correct a sentence that is determined on appeal under 18 U.S.C. 3742 to have been imposed in violation of law, to have been imposed as a result of an incorrect application of the sentencing guidelines, or to be unreasonable, upon remand of the case to the court -- (1) for imposition of a sentence in accord with the findings of the court of appeals; or (2) for further sentencing proceedings if, after such proceedings, the court determines that the original sentence was incorrect. (b) Correction of Sentence for Changed Circumstances. The court, on motion of the Government, may within one year after the imposition of a sentence, lower a sentence to reflect a defendant's subsequent, substantial assistance in the investigation or prosecution of another person who has committed an offense, in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code. The court's authority to lower a sentence under this subdivision includes the authority to lower such sentence to a level below that established by statute as a minimum sentence. /3/ Petitioner does not seek to disturb the district court's initial exercise of authority under the pre-1987 version of Rule 35(a) to vacate the four-year term of supervised release first imposed by the district court. Petitioner suggests (Pet. 6 & n.1) that the district court would in any event have had jurisdiction under 28 U.S.C. 2255 to vacate the illegal sentence at petitioner's request. /4/ Petitioner cites United States v. Cook, 890 F.2d 672 (4th Cir. 1989), and United States v. Rico, 902 F.2d 1065 (2d Cir. 1990), for the proposition that "a sentencing court retains inherent power, after the repeal of Fed.R.Crim.P. 35(a), to correct an illegal sentence or a sentence imposed in an assertedly illegal manner." Pet. 11. The courts in those cases were concerned with the circumstances under which, despite the limitations of the new Rule 35(a), a district court has inherent authority to correct an illegal sentence without regard to Rule 35. Both cases involved offenses occurring after November 1, 1987, that unquestionably were governed by the new Rule 35(a) and neither court implied in any way that the pre-1987 version of Rule 35(a) would fail to govern the correction of an illegal sentence imposed for a pre-November 1, 1987 offense.