JERRY DONALD MULLIS AND JOHN VICTOR HOMICH, PETITIONERS V. UNITED STATES OF AMERICA No. 89-6932 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States OPINIONS BELOW The separate judgment orders of the court of appeals in each petitioner's case (Pet. App. 1, 5) /1/ are not reported, but the judgments are noted at 888 F.2d 1395 and 887 F.2d 1091, respectively. JURISDICTION The judgments of the court of appeals were entered on September 22, 1989 (Mullis), and September 28, 1989 (Homich). The petition for a writ of certiorari was filed November 27, 1989. The joinder of these two cases in one petition is in accordance with Rule 12.2 of the Rules of this Court. QUESTIONS PRESENTED 1. Whether the mandatory minimum terms of imprisonment without parole prescribed by the Anti-Drug Abuse Act of 1986 became effective for offenses committed on or after the date of enactment, October 27, 1986. 2. Whether the mandatory minimum terms of post-confinement monitoring prescribed by the Anti-Drug Abuse Act of 1986 became effective for offenses committed on or after the date of enactment, October 27, 1986. STATEMENT Petitioner Mullis pleaded guilty to possessing, aboard a United States registered vessel, more than 100 kilograms of marijuana with the intent to distribute it, in violation of 21 U.S.C. 955a(a) (now codified at 46 U.S.C. App. 1903(a)). He was sentenced to five years' imprisonment, to be followed by a four-year term of special parole. The court of appeals affirmed by judgment order. Pet. App. 5. Petitioner Homich pleaded guilty to possessing at least 500 grams of cocaine with intent to distribute it, between January 21 and February 5, 1987, in violation of 21 U.S.C. 841(a)(1). He was sentenced to five years' imprisonment, to be followed by a four-year term of special parole. The court of appeals affirmed by judgment order. Pet. App. 1. 1. The facts of petitioner Mullis's case are stated in the government's brief in the court of appeals. Gov't C.A. Br. 1-3. On November 4, 1986, the United States Coast Guard Cutter LIPSAN interdicted the U.S. registered sailboat SWEET SOLITUDE in international waters southwest of Cuba and obtained permission to board from petitioner Mullis, the boat's captain. Inspectors from the LIPSAN discovered approximately 300 pounds of marijuana on board the SWEET SOLITUDE. Mullis was placed under arrest and taken to Key West, Florida. On July 8, 1987, Mullis pleaded guilty to one count of possession of more than 100 kilograms of marijuana with intent to distribute it, in violation of 21 U.S.C. 955a(a) (now 46 U.S.C. 1903(a)). The district court initially imposed a sentence of five years' imprisonment without parole, to be followed by a four-year term of "supervised probation." See 46 U.S.C. App. 1903(g)(1); cf. 21 U.S.C. 960(b)(2) (Supp. IV 1986) (which provides for a mandatory minimum four-year term of post-incarceration "supervised release"). See Pet. App. 8. On June 9, 1988, Mullis filed a motion under Fed. R. Crim. P. 35(a) to declare his sentence illegal. The district court subsequently amended the four-year term of post-confinement monitoring by designating it "special parole," but did not otherwise alter the sentence. Gov't C.A. Br. 2. 2. The facts of petitioner Homich's case are stated in the government's brief in the court of appeals. Gov't C.A. Br. 1-3. Homich pleaded guilty to possession of at least 500 grams of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1), based on his activities between January 21 and February 5, 1987. He was sentenced to five years' imprisonment without parole, to be followed by a four-year term of supervised release. See 21 U.S.C. 841(b)(1)(B) (Supp. IV 1986). Pet. App. 4. Homich filed a motion under 28 U.S.C. 2255 to declare his sentence illegal. In response, the district court amended the sentence by changing the designation from supervised release to special parole, but it did not alter the duration of the term of post-confinement monitoring. Gov't C. A. Br. 2. 2. On appeal, petitioners argued that they were improperly sentenced under the penalty provisions of the Anti-Drug Abuse Act of 1986 (ADAA), enacted October 27, 1986, Pub. L 99-570, tit. I, Sections 1002, 1302, 100 Stat. 3207-2, 3207-15. The court of appeals rejected the claims without discussion. Pet. App. 1, 5. ARGUMENT Petitioners claim that they were erroneously sentenced under the penalty provisions of the ADAA. They maintain that they should have been sentenced under the pre-existing penalty provisions, which do not provide for mandatory minimum terms of imprisonment without parole, and which prescribe a different type of post-confinement monitoring (special parole, as opposed to supervised release), and shorter mandatory minimum terms of post-confinement monitoring. Compare 21 U.S.C. 841(b)(1)(B) (Supp. IV 1986) (mandatory minimum five years' imprisonment without parole and four years' supervised release) and 21 U.S.C. 960(b)(2) (Supp. IV 1986) (same) with 21 U.S.C. 841(b)(1)(B) (Supp. II 1984) (up to 15 years' imprisonment; at least three years' special parole) and 21 U.S.C. 960(b)(2) (Supp. II 1984) (same). Petitioners argue (Pet. 6-11) that the mandatory minimum terms of imprisonment without parole and the enhanced terms of post-confinement monitoring enacted by the ADAA did not become effective on the date of enactment, but rather became effective only for offenses committed after November 1, 1987. Unlike petitioners, we believe that the statute under which petitioners should have been sentenced is the ADAA. Although, under the ADAA, the district court sentenced petitioners to the wrong form of post-confinement monitoring, we believe that the court of appeals' decision to affirm the sentences was essentially correct because the durations of imprisonment and post-confinement monitoring that were imposed are consistent with the penalty provisions of the ADAA. We agree with petitioners, however, that there is a conflict among the courts of appeals respecting the general issue of the effective date of the ADAA's post-confinement monitoring provisions, and that the question is an appropriate one for review by the Court at this time. This case, however, is not an ideal vehicle for consideration of the issue of the effective date of the ADAA penalty provisions. We have filed a brief in another case now pending before the Court, Gozlon-Peretz v. United States, No. 89-7370 (cert. filed Apr. 25, 1990), in which we have recommended the Court grant the petition to review the issue of the effective date of the ADAA's post-confinement monitoring provisions. 1. The ADAA was signed into law on October 27, 1986. Along with a variety of other provisions, the statute revised and enhanced the penalties applicable to drug offenses. For example, Section 1002 of the ADAA repealed the penalty provisions of 21 U.S.C. 841(b)(1)(A) and (B), which were enacted as part of the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, Ch. V, Section 502, 98 Stat. 2068 (1984). Section 1002 created a penalty scheme that, among other things, revised the categories of drug offenses, increased maximum prison terms, imposed mandatory minimum terms of imprisonment, increased the mandatory minimum duration of post-confinement monitoring, and changed the form of post-confinement monitoring from "special parole" to "supervised release." Section 1302 of the ADAA made parallel changes in the penalty provisions of 21 U.S.C. 960(b), which applies to the importation andd exportation of controlled substances. Neither Section 1002 nor Section 1302 of the ADAA expressly stated the date on which those sections would become effective. The ADAA also provided, in Section 1004, that the term "supervised release" would be substituted for the term "special parole" wherever the term "special parole" appeared in the drug laws. That substitution was to take effect on the effective date of 18 U.S.C. 3583, the provision of the Sentencing Reform Act of 1984 that implemented the new concept of supervised release. See Pub. L. No. 99-570, Section 1004(b), 100 Stat. 3207-6 (1986). Section 3583, like the sentencing guidelines system, was to become effective on November 1, 1987. 2. The district court was correct to impose mandatory minimum terms of five years' imprisonment, as prescribed by the applicable sections of the ADAA, on petitioners Mullis and Homich. Every court that has considered the question -- including the Eleventh Circuit in another case -- has explicitly held that the ADAA's mandatory minimum terms of imprisonment without parole became effective immediately and apply to drug offenses committed after the date of enactment, October 27, 1986. See, e.g., United States v. Ospina, 892 F.2d 88 (11th Cir. 1989), cert. denied, No. 89-6589 (Apr. 3, 1990); United States v. Duprey, 895 F.2d 303, 311 (7th Cir. 1989), cert. denied, No. 89-6512 (Apr. 23, 1990); United States v. Garcia, 879 F.2d 803, 804 (10th Cir. 1989); United States v. Charleus, 871 F.2d 265, 269 (2d Cir. 1989); United States v. Padilla, 869 F.2d 372, 381-382 (8th Cir.), cert. denied, 109 S. Ct. 3223 (1989); United States v. Levy, 865 F.2d 551, 559 n.4 (3d Cir. 1989); United States v. Meyers, 847 F.2d 1408, 1414-1416 (9th Cir. 1988). Petitioners (Pet. 6, 8) argue that United States v. Smith, 840 F.2d 886 (11th Cir.), cert. denied, 109 S. Ct. 154 (1988); United States v. Byrd, 837 F.2d 179 (5th Cir. 1988); and United States v. Whitehead, 849 F.2d 849 (4th Cir.), cert. denied, 109 S. Ct. 534 (1988), reached a different result. These cases, however, do not support petitioners' position. To the contrary, all three of the cases recognize, sub silentio, that the ADAA's mandatory terms of incarceration became effective immediately, because the courts in each case affirmed a sentence of imprisonment imposed under the penalty provisions of the ADAA for a drug offense committed between October 27, 1986, and November 1, 1987. See Smith, 840 F.2d at 889; Byrd, 837 F.2d at 181; Whitehead, 849 F.2d at 860. There is therefore no conflict among the circuits on the issue of the effective date of the mandatory minimum sentences imposed by the ADAA, and no reason for the Court to grant review on that issue. 3. We agree with petitioners that there is a conflict among the circuits with respect to the effective date of the post-confinement monitoring provisions of the ADAA. We discuss the conflict in detail in our brief in Gozlon-Peretz v. United States, No. 89-7370, a copy of which is being forwarded to petitioners. We also agree with petitioners that this Court should resolve the conflict that has developed among the circuits respecting the effective date of the ADAA's post-confinement monitoring provisions. Although this issue only affects sentences for drug offenses committed between October 27, 1986, and November 1, 1987, many thousands of cases fall into this category. /2/ The conflict among the circuits has produced a large number of Rule 35 and Section 2255 motions by offenders seeking modification of the portion of their sentences dealing with post-confinement monitoring. Because of the number of cases affected and the now-established conflict mong the circuits, a definitive ruling by this Court is needed. /3/ Although we believe the Court should review the issue of post-confinement monitoring presented in this case, we urge the Court to use a different case as the vehicle for review. In United States v. Gozlon-Peretz, No. 89-7370, we have recommended that the Court grant the petition to review the post-confinement monitoring issue that is also presented in this case. If the Court grants the petition in Gozlon-Peretz, we recommend that it hold the petition in this case pending the decision in Gozlon-Peretz. In Gozlon-Peretz, the petitioner was sentenced for higher volume drug offenses, which were subject to the penalties of Sections 841(b)(1)(A) and 841(b)(1)(B) (Supp. IV 1986) of the ADAA, but which were not punishable by post-confinement monitoring under the applicable provision in effect prior to the ADAA. In the instant case, petitioners were sentenced for offenses that would have been punishable by a term of special parole, albeit of shorter minimum duration, under the pre-ADAA law. Because the petitioners in this case were given a term of special parole, rather than supervised release, and because the sentence imposed on both petitioners (a four-year term of special parole) is compatible with the applicable provisions of either the ADAA or its predecessor, it is unclear whether either petitioner in this case would derive any significant benefit from a ruling in his favor on this issue. The petitioner in Gozlon-Peretz, by contrast, would benefit by being freed from any post-confinement monitoring if he prevails. Moreover, petitioner in Gozlon-Peretz is represented by counsel, and the court of appeals in that case, unlike in this one, has written a full opinion discussing the question presented. For these reasons, we submit that the Court should use the Gozlon-Peretz case as the vehicle for addressing the issue presented in this case regarding post-confinement monitoring. CONCLUSION The petition for a writ of certiorari should be held pending the disposition of Gozlon-Peretz v. United States, No. 89-7370, which raises the same question as is raised in Question 2 of the petition in this case. With respect to Question 1, the petition should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General AMY L. WAX Assistant to the Solicitor General RICHARD A. FRIEDMAN Attorney MAY 1990 /1/ The appendix to the petition is not paginated, so we refer to the pages as if they were sequentially numbered. /2/ Jurisdiction over a defendant sentenced to supervised release remains with the district court, which imposes the conditions of post-confinement monitoring and presides over revocation proceedings. Special parole, on the other hand, is administered by the Parole Commission. Compare 18 U.S.C. 3583 and 18 U.S.C. 4201-4218. Therefore, as long as the circuit split persists, there is a potential for litigation by prisoners transferred from a supervised release jurisdiction to one where special parole applies. As the Third Circuit in Gozlon-Peretz, 894 F.2d at 1406 n.6, explained, "the defendant can claim that the Parole Commission has jurisdiction and that the Commission's reparole guidelines should apply." In addition, "a defendant in such a situation could also claim that he is entitled to early termination of parole pursuant to 18 U.S.C. 4211(c), a provision that has no parallel for supervised release." 894 F.2d at 1406 n.6. There is another difference between supervised release and special parole that could give rise to additional litigation. Although a violation of both special parole and supervised release may subject the offender to revocation and reincarceration for the entire original term of post-confinement monitoring without any credit for time spent complying with its conditions, see 18 U.S.C. 3583(e)(3) (Supp. IV 1986) (supervised release) and 21 U.S.C. 841(c) (Supp. IV 1986) (special parole), the district court has authority, not possessed by the Parole Commission, to extend the term of supervised release as one of the remedies for a violation, see 18 U.S.C. 3583(e)(2) (Supp. IV. 1986). An offender sentenced to special parole who violates the terms of his release and faces re-incarceration could conceivably complain that he should be entitled, like those subject to supervised release, to consideration of the option of extension of his term of monitoring as a penalty for violation. /3/ This issue has been raised twice previously this Term in petitions for certiorari. In Torres v. United States, cert. denied, 110 S. Ct. 873 (Jan. 22, 1990), we opposed this Court's review in the hope that other courts of appeals might reassess their positions in light of this ruling, which we believed to be correct, and because there was no compelling need immediately to address the terms of post-confinement release in light of thee substantial mandatory minimum terms of imprisonment required under the drug laws. Our subsequent decision to oppose review in another Ninth Circuit case that followed the holding in Torres, see Gov't Br. in Opp. in United States v. Villasenor, cert. denied, No. 89-6434 (Apr. 16, 1990), was buttressed by the Third Circuit's January 1990 decision in Gozlon-Peretz, supra, which supported our hope for a satisfactory resolution without this Court's intervention. However, the First Circuit's opinions in Ferryman and Figueroa, which appeared, respectively, shortly before and after our filing in Villasenor, have satisfied us that the courts are moving in the direction of even greater confusion on this issue, and that it is unrealistic to expect that the conflict among the circuits will resolve itself without this Court's intervention.