SAM PAIZ AND TIM RECTOR, PETITIONERS V. UNITED STATES OF AMERICA No. 90-6517 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 Seventh Circuit Brief For The United States OPINION BELOW The court of appeals opinion (Pet. App. 1a-21a) is reported at 905 F.2d 1014. JURISDICTION The judgment of the court of appeals was entered on June 6, 1990. A petition for rehearing was denied on September 21, 1990. Pet. App. 23a. The petition for a writ of certiorari was filed on December 14, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the penalty provisions of Section 1002 of the Anti-Drug Abuse Act of 1986 became effective immediately upon enactment on October 27, 1986. STATEMENT After a jury trial in the Northern District of Indiana, petitioner Paiz was convicted of conspiracy to possess marijuana with intent to distribute it (Count 3), in violation of 21 U.S.C. 846. He was also convicted of five counts of possession of more than 50 kilograms of marijuana with intent to distribute it (Counts 8, 10, 14-16), in violation of 21 U.S.C. 841(a), for offenses committed before April 1986. Pet. App. 19a. Petitioner Rector was convicted of conspiracy to possess marijuana with intent to distribute it (Count 3), in violation of 21 U.S.C. 846, four counts of possession of more than 50 kilograms of marijuana with intent to distribute it (Counts 27, 29, 31, and 33) and one count of possession of a lesser amount of marijuana with intent to distribute it (Count 36), all in violation of 21 U.S.C. 841(a), and six counts of traveling interstate in aid of these drug offenses (Counts 24, 26, 28, 30, 32, and 34), in violation of 18 U.S.C. 1952(a)(3). Petitioner Rector's offenses of possession of more than 50 kilograms of marijuana with intent to distribute it (Counts 27, 29, 31, and 33) occurred on November 9, 1986, November 15, 1986, November 25, 1986, and November 30, 1986, respectively. See October 13, 1983 Superseding Indictment. The conspiracy convictions of both petitioners (Count 3) were based on activities conducted from 1983 through May 1987. Pet. App. 18a. Petitioner Paiz was sentenced to 20 years' imprisonment on the conspiracy count and concurrent terms of 15 years' imprisonment to be followed by three years' special parole on Counts 8, 10, and 14-16. Petitioner Rector was sentenced to 30 years' imprisonment and a $100,000 fine on the conspiracy count, 10 years' imprisonment to be followed by three years' supervised release on counts 27, 29, 31 and 33, five years' imprisonment followed by two years' special parole on the other marijuana possession count, and five years' imprisonment on the Travel Act counts, all sentences to run concurrently. The court of appeals affirmed petitioner Paiz's convictions and sentences. It affirmed petitioner Rector's convictions and sentences, except for the three-year sentences of supervised release on three of the marijuana possession counts. On these counts it remanded for sentences of three years' special parole. See Pet. App. 21a. The court of appeals held that the portions of Section 1002 of the Anti Drug Abuse Act (ADAA) of 1986, Pub. L. No. 99-570, Tit. I, 100 Stat. 3207 et seq., that provide for enhanced terms of imprisonment for certain drug offenses became effective upon enactment on October 27, 1986. Pet. App. 17a-19a. Finding that the conspiracy in which both petitioners were involved "ran after October 27, 1986," it upheld the sentences of imprisonment for both petitioners on the conspiracy counts under the penalty provisions of the ADAA. Pet. App. 18a. The court also held that the prison terms prescribed by the ADAA applied to petitioners' offenses of possession with intent to distribute more than 50 kilograms of marijuana, and upheld petitioner Rector's sentences of 10 years' imprisonment for those counts. See 21 U.S.C. 841(b)(1)(C) (Supp. IV 1986). It held, however, that the terms of supervised release authorized by Section 1002 of the ADAA did not go into effect until November 1, 1987. The court of appeals therefore remanded to the district court to vacate the terms of supervised release imposed on petitioner Rector for Counts 27, 31, and 33, /1/ and to substitute special parole as required by the sentencing provision in effect before the ADAA was enacted. Pet. App. 18a, 21a. Compare 21 U.S.C. 841(b)(1)(B) (Supp. II 1984) (mandatory term of special parole) with 21 U.S.C. 841(b)(1)(C) (Supp. IV 1986) (mandatory term of supervised release). ARGUMENT Petitioners argue (Pet. 6-7) that the court of appeals erred in upholding petitioners' sentences on Count 3. They maintain that the penalty provision that applies to their conspiracy convictions was the one in effect before the enactment of Section 1002 of the ADAA, and that their sentences were not authorized by the predecessor provision. Petitioners request that this petition be held for this Court's decision in Gozlon-Peretz v. United States, No. 89-7370 (argued Oct. 30, 1990), which, they contend, will resolve the issue presented here. We disagree with petitioners' assertion that their sentences on Count 3 were in error. Moreover, petitioners' position that the effective date of all of the penalty provisions of Section 1002 was delayed until November 1, 1987, has been rejected by every court of appeals to consider it and does not independently warrant this Court's review. See Government Brief in Gozlon-Peretz, at 12, n.2 (citing cases). /2/ We nevertheless agree that the interests of judicial economy would be served by holding this case for the decision in Gozlon-Peretz. Although this Court granted certiorari in Gozlon-Peretz to review the question whether the supervised release provisions of the ADAA were effective on the date of enactment, October 27, 1986, not whether the enhanced prison terms prescribed by Section 1002 went into effect on that day, it is possible that the Court will address or resolve the issue presented by petitioners here in rendering its decision in Gozlon-Peretz. See, e.g., Respondent's Brief in Gozlon-Peretz, at 24-28 (arguing that the supervised release provisions in Section 1002 did not go into effect until November 1, 1987, "for the additional reason that Section 1002 as a whole had not yet become effective (until) that time."). For this reason, it would be appropriate for the Court to hold this case pending its decision in Gozlon-Peretz. Moreover, should the Court accept our argument in Gozlon-Peretz that the supervised release provisions were effective on enactment along with the other penalty provisions of Section 1002, then the court of appeals' direction that petitioner Rector's sentences on Counts 27, 31, and 33 must include a term of special parole rather than supervised release would result in an illegal sentence. Although, in that event, it would not strictly be necessary for the Court to vacate the court of appeals' decision to rectify this error (since an illegal sentence may be corrected by the sentencing court at any time under the version of Fed. R. Crim. P. 35(a) in effect prior to November 1, 1987), /3/ it would nonetheless serve the interests of judicial economy for the Court to do so. This is a further reason for this Court to hold the petition for disposition in light of the decision in Gozlon-Peretz. CONCLUSION The petition for a writ of certiorari should be held 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 FEBRUARY 1991 /1/ Although Rector was convicted on four counts of possession with intent to distribute more than 50 kilograms of marijuana (Counts 27, 29, 31, 33), he was initially sentenced only on three of those counts -- Counts 27, 31, and 33. See February 10, 1989 Judgment and Commitment Order. This was later corrected to include a sentence of 10 years' imprisonment and 3 years' supervised release on Count 29 as well. See February 16, 1989 Judgment and Commitment Order. However, the parties before the court of appeals, and the court of appeals itself, appear to have based their consideration of the sentencing issues arising from petitioner Rector's large volume marijuana offenses on the initial, uncorrected Judgment and Commitment Order, which was included by petitioner Rector in the Appendix to his Brief before the court of appeals. See Pet. C.A. Br. App. 15. See also Gov't C.A. Br. 47-50 (discussing appeal of sentences only on Counts 27, 31, and 33); Pet. App. 18a, 21a (same); but compare id. at 15a n.17 (identifying Counts 27, 29, 31, and 33 as those for which petitioner Rector received 10-year terms of imprisonment and three year terms of supervised release). As a result of this oversight, the court ignored the sentence imposed for Count 29 in its discussion and final order. Consequently, the court of appeals affirmed the district court's sentence of 10 years' imprisonment and 3 years' supervised release on that Count -- a sentence authorized by the pertinent penalty provision of the ADAA. In the government's view, that disposition is correct. Count 29 charged an offense committed after the enactment of the ADAA, and the ADAA amendments therefore applied to the offense. /2/ We are sending a copy of our brief in Gozlon-Peretz to petitioners. /3/ For this reason, the United States has not cross-petitioned on this issue.