WILLIAM HORACIO PINEDA, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-7229

   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 In Opposition

                             OPINION BELOW

   The court of appeals opinion (Pet. App. 1a-2a) is unpublished, but
the decision is noted at 923 F.2d 846 (Table).

                             JURISDICTION

   The judgment of the court of appeals was entered on December 14,
1990.  The petition for a writ of certiorari was filed on February 27,
1991.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether the non-parolable sentence provisions of the Anti-Drug
Abuse Act of 1986 apply to offenses committed on or after their date
of enactment.

                               STATEMENT

   1. Based on an offense committed in November 1986, petitioner
pleaded guilty in the Eastern District of New York to distributing
more than five kilograms of cocaine, in violation of 21 U.S.C. 841(a).
 The district court sentenced petitioner to the statutory minimum term
of ten years' imprisonment without parole, /*/ to be followed by the
statutory minimum term of five years' supervised release, under 21
U.S.C. 841(b)(1)(A) (1982, Supp. IV 1986), which applies, inter alia,
to offenses involving five kilograms or more of a substance or mixture
containing cocaine.  This sentencing provision was enacted on October
27, 1986, as part of the Anti-Drug Abuse Act of 1986 (ADAA), Pub. L.
No. 99-570, tit. I, Section 1002, 100 Stat. 3207-2.

   2. On direct appeal, the court of appeals rejected petitioner's due
process and equal protection challenges to the requirement that a
mandatory minimum sentence be imposed for petitioner's offense and
affirmed petitioner's conviction and sentence.  United States v.
Pineda, 847 F.2d 64 (2d Cir. 1988).

   3. On February 12, 1990, petitioner filed a motion under 28 U.S.C.
2255 seeking modification of his sentence in two respects.  First, he
moved to strike the term of supervised release on the ground that the
post-confinement monitoring provisions of the ADAA did not become
effective until November 1, 1987.  Second, he sought to modify his
sentence to make him eligible for parole on the grounds that the
non-parolability provision was also not in effect until November 1,
1987, and that it would violate the Ex Post Facto Clause to apply the
non-parolability provision to him.

   In light of the then-prevailing case law in the Second Circuit
holding that the ADAA's provisions for supervised release did not go
into effect until November 1, 1987, see Mercado v. United States, 898
F.2d 291 (2d Cir. 1990), the government did not oppose petitioner's
motion to eliminate his term of supervised release.  The district
court looked to the pre-existing version of 21 U.S.C. 841(a)(1)(A)
(1982, Supp. II 1985), which did not provide for any term of
post-confinement monitoring for the offense for which petitioner was
convicted, and granted that part of petitioner's motion.  Pet. App.
1b-2b.

   The district court rejected petitioner's argument respecting his
non-parolable sentence.  It held that the non-parolable aspect of the
ADAA sentences went into effect immediately upon enactment and,
therefore, applied to petitioner's offenses that occurred on that
date.  Pet. App. 2b-3b.

   4. Petitioner appealed the district court's refusal to make him
eligible for parole.  The court of appeals rejected petitioner's Ex
Post Facto Clause argument for the same reason relied upon by the
district court:  petitioner was in fact sentenced under a provision
that was enacted and became effective prior to the date of his
offense.  Pet. App. 1a-2a.

                               ARGUMENT

   Petitioner argues (Pet. 3-6) that nonparolable sentences did not
become effective until November 1, 1987, and that it violates the Ex
Post Facto Clause to apply such a sentence to his December 4, 1986,
offense.  In Gozlon-Peretz v. United States, 111 S. Ct. 840 (1991),
this Court held that all aspects of the sentencing provisions of the
ADAA became effective upon enactment on October 27, 1986.
Accordingly, it is now clear that petitioner's initial sentence to a
mandatory minimum non-parolable term of ten years' imprisonment
followed by a mandatory minimum term of five years' supervised release
was correct.  See 21 U.S.C. 841(b)(1)(A) (1982, Supp. IV 1986).  There
is no warrant for further review of petitioner's claim that his lack
of parole eligibility is unlawful.

   Although the district court erred in striking the term of
supervised release, that issue is not before this Court and was not
before the court of appeals.  However, the U.S. Attorney's Office for
the Eastern District of New York has filed a motion under Fed. R.
Crim. P. 35(a) to correct petitioner's now-illegal sentence to restore
the mandatory five year term of supervised release.  See App., infra,
1-2.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   RICHARD A. FRIEDMAN

      Attorney

   APRIL 1991

   /*/ The last sentence of Section 841(b)(1)(A) provides:  "No person
sentenced under this subparagraph shall be eligible for parole during
the term of imprisonment imposed therein."

   APPENDIX