CARY LEWIS FISCHER, PETITIONER V. UNITED STATES OF AMERICA No. 90-5210 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 In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A3) is reported at 905 F.2d 140. JURISDICTION The judgment of the court of appeals was entered on June 11, 1990. The petition for a writ of certiorari was filed on July 23, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court erred in sentencing petitioner to a six-year special parole term without making a specific finding as to the amount of cocaine involved in petitioner's offense. STATEMENT After pleading guilty in the United States District Court for the Western District of Wisconsin, petitioner was convicted on one count of distribution of cocaine, in violation of 21 U.S.C. 841(a)(1). He was sentenced to five years' imprisonment, to be followed by a six-year special parole term. He did not appeal. After conviction, petitioner filed a motion under Fed. R. Crim. P. 35(a) challenging his sentence. The district court denied the motion, and the court of appeals affirmed (Pet. App. A1-A3). 1. Petitioner was indicted on one count of distributing one-eighth ounce of cocaine on September 4, 1986, and one count of possession of a firearm by a convicted felon. Petitioner entered into an agreement to plead guilty to the count charging distribution of cocaine in return for the dismissal of the firearms count. In the agreement, petitioner acknowledged that because of his prior state felony conviction for distribution of marijuana, he was subject to a special parole term of six years. Based on information obtained from the U.S. Attorney's office, the presentence report stated that petitioner had been involved in the distribution of eight to ten ounces of cocaine per week. Petitioner disputed that assertion, and the district court held a hearing purusant to Fed. R. Crim. P. 32(c)(3)(D) to resolve the disagreement. At the hearing, petitioner admitted that he had received as much as one ounce quantities of cocaine seven or eight times between August 1986 and January 1987. After the hearing, the district court found that petitioner had purchased more than one ounce of cocaine per week. Pet. App. A1-A2. The district court then sentenced petitioner to five years' imprisonment and a six-year special parole term without stating whether the sentence was based on the one-eighth ounce of cocaine charged in the indictment or on the greater amount that petitioner had admitted purchasing. Ibid. 2. After conviction, petitioner filed a motion under Fed. R. Crim. P. 35(a), asserting that the district court illegally imposed the six-year special parole term. The court denied the motion. It found that because petitioner had a prior felony conviction, he was subject to a mandatory six-year parole term under the version of 21 U.S.C. 841(b)(1)(B) in effect at the time of his offense. See Pet. C.A. Br. App. A2-A3. The court of appeals affirmed, rejecting petitioner's claim that the sentence had been illegally imposed. The court found that the district court "did not clearly enhance or demonstrably base (petitioner's) sentence * * * on amounts in excess of the seven or eight ounces * * * that (petitioner) confessed to at the Rule 32(c)(3)(D) hearing." Pet. App. A2. ARGUMENT Petitioner contends (Pet. 6) that the district court improperly imposed a sentence under 21 U.S.C. 841(a)(1) without making a factual finding as to the amount of cocaine involved. The district court found when sentencing petitioner, however, that petitioner had purchased more than one ounce of cocaine per week. See Pet. App. A2. Thus, contrary to petitioner's contention, the district court made a factual finding regarding the amount of cocaine involved in petitioner's offense. The district court was not required to repeat the finding in denying petitioner's Rule 35 motion. In any event, the difference between the amount of cocaine petitioner was indicted for distributing and the amount that the district court found that he purchased is irrelevant to his sentence. The penalty provision for Section 841(a)(1) in effect at the time of petitioner's offense required imposition of a term of imprisonment of not more than 15 years for violations involving less than 1 kilogram of cocaine. See 21 U.S.C. 841(b)(1)(B) (Supp. II 1984). In addition, that provision required the court to impose a special parole term of not less than three years for a first-time offender and a special parole term of not less than six years for any offender with a prior controlled substance conviction. Petitioner had previously been convicted of a state law felony for distribution of marijuana, and thus the court properly sentenced him to the minimum six-year special parole term. /1/ In sum, Section 841(b)(1)(B) required imposition of at least a six-year term of special parole, whether the offense involved one-eighth ounce or 8 ounces of cocaine. Petitioner received the minimum six-year term of special parole and thus cannot contend that the district court improperly sentenced him. Accordingly, his claims do not warrant review. /2/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General J. DOUGLAS WILSON Attorney OCTOBER 1990 /1/ Petitioner also asserts that the district court was required, under Fed. R. Crim. P. 35, to review petitioner's sentence for compliance with the United States Sentencing Commission's Sentencing Guidelines. The Sentencing Guidelines, however, are not applicable to petitioner's offense, which occurred prior to November 1, 1987. See 18 U.S.C. 3551 note. /2/ Because this case involves the version of 21 U.S.C. 841(b)(1)(B) in effect prior to October 27, 1986, it does not raise any issue that will be affected by this Court's disposition of Goslon-Peretz v. United States, No. 89-7370.