STANLEY FERRYMAN, PETITIONER V. UNITED STATES OF AMERICA No. 89-7527 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 First Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 16-23) is reported at 897 F.2d 584. JURISDICTION The judgment of the court of appeals was entered on February 21, 1990. A petition for rehearing was denied on March 20, 1990. The petition for a writ of certiorari was filed on May 17, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the post-confinement monitoring provisions of the Anti-Drug Abuse Act of 1986 are so vague that due process precludes a court from imposing any term of post-confinement monitoring for a drug offense committed between October 27, 1986, and November 1, 1987. STATEMENT 1. A federal grand jury in the District of New Hampshire charged petitioner and two co-defendants with conspiring, between September 4 and 14, 1987, to possess cocaine with intent to distribute it, in violation of 21 U.S.C. 846 (Count 1), and with possessing 252 grams of cocaine on September 14, 1987, with the intent to distribute it, in violation of 21 U.S.C. 841(a)(1) (Count 2). Pet. App. 24-25. Petitioner entered a guilty plea to both counts. The district court sentenced petitioner to concurrent terms of two years' imprisonment and three years' supervised release on each count. Pet. C.A. Br. App. 4. Petitioner subsequently moved the district court to correct his sentence. In his motion, petitioner argued that a term of supervised release could not lawfully be imposed for either offense to which he had pleaded guilty. In response, the district court vacated the supervised release terms, but deferred resentencing on Count 2 until petitioner's release from incarceration. Id. at 5. /1/ At that time, petitioner filed another motion to correct his sentence, claiming that no term of post-confinement monitoring could be imposed on the substantive count to which he pleaded guilty. The district court disagreed; it concluded that post-confinement in the form of a term of special parole was not only authorized for petitioner's offense, but was mandatory under the applicable statute. Pet. C.A. Br. App. 5. The court therefore amended petitioner's sentence to include a three-year term of special parole on Count 2 in place of the three-year term of supervised release. Id. at 6; Pet. App. 39. 2. On appeal, petitioner argued that the post-confinement monitoring provisions of 21 U.S.C. 841(b) were so vague and uncertain that to impose any form of post-confinement monitoring would violate the Due Process Clause. Pet. C.A. Br. 7-9. As the basis for his argument, petitioner cited the conflict among the courts of appeals, and within the First Circuit, regarding the effective date of the post-confinement monitoring provisions of the Anti-Drug Abuse Act of 1986 (ADAA), Pub. L. 99-570, Section 1002, 100 Stat. 3207-2 (1986). The court of appeals affirmed. The court held that the applicable penalty provision for petitioner's offense was 21 U.S.C. 821(b)(1)(C) (Supp. IV 1986). Pet. App. 23. By its terms, that provision established a mandatory minimum term of three years of "supervised release." But the court of appeals held that Section 1004 of the ADAA expressed Congress's intention to delay until November 1, 1987, the change-over in the mode of post-confinement monitoring from "special parole" to "supervised release." Because petitioner's offense would have been punished by special parole under the pre-ADAA penalty provision applicable to his offense, 21 U.S.C. 821(b)(1)(B) (Supp. II 1984), the court held that the special parole form of post-confinement monitoring continued to apply to offensess falling under that subsection when committed between the date the ADAA was enacted (October 27, 1986), and the effective date set forth in Section 1004 of the ADAA (November 1, 1987). Pet. App. 20-22. /2/ Both the ADAA and the pre-existing penalty provisions applicable to the volume of cocaine possessed by petitioner (252 grams) required a mandatory minimum term of three years' post-confinement monitoring. See 21 U.S.C. 821(b)(1)(B) (Supp. II 1984); 821(b)(1)(C) (Supp. IV 1986). Thus, as the court of appeals explained in response to the government's petition for rehearing, it did not address the question whether the old or the new duration of post-confinement monitoring applied to drug offenses committed after the enactment of the ADAA on October 27, 1986, but prior to November 1, 1987. Pet. App. 23. /3/ The court rejected petitioner's argument that, in light of the conflict among the circuits regarding the proper interpretation of the penalty provisions, the Due Process Clause precluded sentencing him to any term of post-confinement monitoring at all. The court found that the requirements of due process were satisfied by the definiteness with which Congress had provided for post-confinement monitoring under both the old and the new versions of the drug penalty provisions. Pet. App. 22. With respect to the uncertainty about whether the post-confinement monitoring should be in the form of special parole or supervised release, the court found that the two types of post-confinement monitoring were so similar that notice of one was sufficient notice of the other. Thus, due process notice requirements were met even if there were confusion about whether special parole or supervised release applied to petitioner's offense. Ibid. ARGUMENT Petitioner reasserts (Pet. 10-13) his claim that the federal drug laws are so unclear as to what form of post-confinement monitoring applies to drug offenses committed between October 27, 1986, and November 1, 1987, that it would violate the Due Process Clause to impose any kind of post-confinement monitoring on persons convicted of drug offenses between those two dates. Although there is a conflict among the circuits as to which form of post-confinement monitoring applies to defendants in the class in question, no court has held that the lack of clarity on that issue requires that the courts refrain from imposing any form of post-confinement monitoring at all. In the absence of any conflict among the circuits on that issue, there is no reason for this Court to review petitioner's claim. The Due Process Clause requires that criminal statutes put persons on notice of what constitutes criminal behavior "with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983). We agree with petitioner that a similar requirement of definiteness applies to punishments for criminal conduct. See Giaccio v. Pennsylvania, 382 U.S. 399 (1966); United States v. Colon-Ortiz, 866 F.2d 6, 9 (1st Cir.), cert. denied, 109 S. Ct. 1966 (1989). Unquestionably, however, the post-confinement monitoring provisions of the ADAA meet that constitutional standard. As the court of appeals recognized, the penalty provisions under both the pre-existing drug statute and the ADAA established a minimum term of three years' post-confinement monitoring for petitioner's offense. Thus, whatever confusion and uncertainty may surround the effective date of the ADAA provisions, petitioner was always on notice, from the face of both the old and the new statutes, that his offense was subject to at least a three-year term of post-confinement monitoring. The only question was whether that term would take the form of special parole or supervised release. See 21 U.S.C. 841(b)(1)(B) (Supp. II 1984); 841(b)(1)(C) (Supp. IV 1986). Yet petitioner is not claiming that he should have had one form of post-confinement monitoring rather than the other; instead, his claim is that he should have had no post-confinement monitoring at all. Because there was nothing unclear about the requirement that some form of post-confinement monitoring be imposed on defendants in petitioner's position, petitioner is not entitled to the relief he seeks, either as a matter of statutory construction or as a matter of constitutional entitlement under the Due Process Clause. As petitioner notes, there is a conflict among the circuits as to the effective date of the ADAA's post-confinement monitoring provisions. This Court recently granted certiorari in Gozlon-Peretz v. United States, No. 89-7370 (cert. granted June 18, 1990), to resolve that conflict. As it pertains to petitioner, however, that issue merely affects whether he should be sentenced to special parole or supervised release. Petitioner does not argue that the district court should have imposed supervised release rather than special parole as the proper form of post-confinement monitoring; he argues that he should not be subject to post-confinement monitoring of any kind. That contention is not presented in the Gozlon-Peretz case. Because neither party's position in Gozlon-Peretz supports petitioner's claim, the disposition of that case is unlikely to afford petitioner any relief. Accordingly, there is no reason for the Court either to grant the petition in this case or to hold this case pending the disposition of Gozlon-Peretz. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General RICHARD A. FRIEDMAN Attorney JULY 1990 /1/ In Bifulco v. United States, 447 U.S. 381 (1980), this Court held that punishment for a conspiracy under 21 U.S.C. 846 could not include post-confinement monitoring. Thus, the district court correctly dropped the post-confinement monitoring term from the sentence for petitioner's conspiracy offense. /2/ The court of appeals subsequently held that a drug offense committed after the enactment of the ADAA that would not have been punished by post-confinement monitoring under the pre-ADAA penalty provisions (i.e., the high-volume offenses encompassed by 21 U.S.C. 821(b)(1)(A) (Supp. II 1984)) would be punished by supervised release as provided by the ADAA because for such offenses there was no pre-existing special parole terminology to be retained by the force of ADAA Section 1004. See United States v. Figueroa, 898 F.2d 825 (1st Cir. 1990). /3/ In its petition for rehearing, the government argued (1) that the ADAA penalty provision (21 U.S.C. 841(b)(1)(C) (Supp. IV 1986)), and not the pre-ADAA penalty provision (21 U.S.C. 841(b)(1)(B) (Supp. II 1984)) was applicable to petitioner; and (2) that, whatever the terminology employed, the duration of post-confinement monitoring applicable to offenses committed after the enactment of the ADAA should be those prescribed in the ADAA. In response to the government's petition, the court stated that it had not intended to address any issue respecting the duration of post-confinement monitoring, since it was not necessary to do so in this case.