Kingsley v. United States, 1st Cir. (1993)

USCA1 Opinion
September 22, 1993
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 93-1250
MICHAEL J. KINGSLEY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, U.S. District Judge]
___________________
___________________
Before
Breyer, Chief Judge,
___________
Selya and Boudin, Circuit Judges.
______________
___________________
Michael J. Kingsley on brief pro se.

___________________
A. John Pappalardo, United States Attorney, and Kevin
____________________
_____
O'Regan, Assistant United States Attorney, on brief for appellee.
_______
__________________
__________________
-2-
Per Curiam.
__________
Petitioner
legality
of special
sentence
for
parole
multiple
Michael Kingsley challenges the

terms imposed
drug violations.
as
part of
his
He
argues that,
because such sanctions were abolished between the time of his
offenses
and the time of his
sentencing, the district court
should have applied the law in effect on the latter date.

disagree
and therefore affirm
the denial
correct sentence under 28 U.S.C.
of his
We
motion to
2255 and/or Fed. R. Crim.
P. 35(a).
From March 1977
to May 1985, petitioner was
the leader
of a twenty-three member organization engaged in distributing

cocaine and marijuana
in western Massachusetts.
1987, he pled guilty to

count
22 separate offenses as follows: one
of conspiracy to distribute cocaine,
one count
of conspiracy
counts of
cocaine distribution,
counts
of
marijuana
In January
to distribute
21 U.S.C.
marijuana, id.,
___
21 U.S.C.
distribution,
846,
id.,
___
841(a),
one
ten
three
count
conducting a continuing criminal enterprise, 21 U.S.C.

and
six
February
related
17,
tax
1987.
offenses.
At
the
Sentencing
government's
occurred
of
848,
on
recommendation
pursuant to a plea bargain, the district court imposed twelve

ten-year prison terms (for the continuing criminal enterprise
offense
prison
and each of the cocaine

terms (for each of
offenses) and ten five-year
the marijuana and tax offenses)--
all to be served concurrently.
-3-
The court also imposed three
years
of
special parole
offenses (the conspiracy

and
two
years of
for
each
count and
special
parole
of
the eleven
cocaine
ten substantive
counts)
for
each of
the
three
substantive marijuana offenses.

In October
1992, petitioner
filed
the instant
seeking to vacate the special parole terms.

of various amendments to 21
the
mid-1980s, he
argued
U.S.C.
that
configuration imposed no type

for the
offenses at issue
motion
From his reading
841(b) that occurred in
the
statute
in
its
1987
of post-confinement monitoring
here.
He further
contended that
the district court was required to impose this allegedly more

"lenient" penalty provision, rather than the one in effect at
the time the offenses occurred.
rejected
1987
this analysis.1
version of
Contrary to petitioner's view, the
841(b) actually contained
penalties, including enhanced

supervised
thus
release.
would have
The district court properly
prison sentences and terms
Applying
violated
more stringent
the
that provision
of
at sentencing
ex post facto
______________
clause.
We
explain briefly.
The
between
various
1984
elsewhere,
and
modifications
1987
see, e.g.,
___ ____
have
that
been
841(b)
exhaustively
Gozlon-Peretz v.
_____________
underwent
detailed
United States,
_____________
498
____________________
1. The district court did modify one aspect of the judgment
sua sponte.
Pursuant to Bifulco v. United States, 447 U.S.
__________
_______
______________
381 (1980), it vacated the special parole term imposed for
the cocaine conspiracy count.
-4-
U.S.
932
395, 399-403 (1991); Padilla Palacios v. United States,

________________
_____________
F.2d 31,
States
______
32-33
(1st Cir.
1991)
v. Ocasio Figueroa, 898 F.2d

________________
(per curiam);
825, 826-28
United
______
(1st Cir.
1990), cert. denied, 113 S. Ct. 1001 (1993); United States v.

____________
_____________
Ferryman, 897 F.2d 584, 586-88 (1st Cir.), cert. denied, 498
________
_____________
U.S. 830 (1990), and so need only be summarized
to October 12,
1984,
841(b) mandated a
special parole for cocaine

marijuana offenses.
an
anomalous
special
parole term
for
existed.
The
Prior
three-year term of
offenses and a two-year term
Between that date
situation
here.
for
and October 27, 1986,

statute
large-scale offenses
imposed no
(e.g., those
____
involving one kilogram or more of cocaine), but retained such

sanctions
for
lesser
841(b)(1)(A) (Supp.
offenses.
Compare
_______
1984) with id.

____ ___
Santamaria, 788
__________
Cir.
it
requires
Finally,
a term
of
is now
supervised
U.S.C.
841(b)(1)(B)-(C); see,
___
e.g., United States v.

____ ______________
1986).
21
F.2d 824, 829
clear
release
that the
for
(1st
statute
all
offenses
occurring on or after October 27, 1986 (not November 1, 1987,

as
petitioner suggests).
See, e.g., Gozlon-Peretz, 498 U.S.

___ ____ _____________
at 409; United States v. Morris, 977 F.2d 677, 686

_____________
______
1992), cert. denied, 113 S. Ct.
____________
and
1986 amendments,
terms prescribed by
of course,
1588 (1993).
also
(1st Cir.
Both the
enhanced the
1984
prison
841(b).
Defendant is therefore mistaken in maintaining

statutory penalties existing
prior to October 12,
that the
1984 were
-5-
more
stringent than
those existing
in 1987.
Had
he been
sentenced under
longer
the latter,
terms of
imprisonment.2
subject to periods
and
than, the
And
he would
quantity of drugs
earlier special
overlooks entirely.
parole
exposed to
have
been
least equal to,
involved) possibly
terms--a fact
he
It is thus clear that application of the
1987 penalties would
have been impermissible.
petitioner's contention that
the circumstances
ambiguous as to warrant invoking

favor is
have been
of supervised release at
(depending on the
longer
he would
well off the
mark.
And, lastly,
here are
so
the "rule of lenity" in his
See, e.g.,
___ ____
Gozlon-Peretz, 498
_____________
U.S. at 409-10; Ferryman, 897 F.2d at 591.3

________
____________________
2. Defendant
suggests
this
would
have
posed
no
constitutional difficulties in light of the government's
sentencing recommendations under the plea agreement.
He
ignores the fact that the district court was not required to
accept those recommendations.
3. While we need not address the issue, we note that the
second prong of petitioner's argument--that any reduction in
criminal penalties must be applied retroactively, even absent
any specific provision to that effect--appears
equally
problematic. See generally United States v. Jacobs, 919 F.2d
_____________ _____________
______
10 (3d Cir. 1990) (applying "saving statute," 1 U.S.C.
109,
to find change in drug offense classification, which occurred
between time of offense and time of sentencing and which
would have rendered
defendant eligible for
probation,
inapplicable), cert. denied, 111 S. Ct. 1333 (1991); Lerner
____________
______
v. Gill, 751 F.2d 450, 456 (1st Cir.) (rejecting argument
____
that "a state must retroactively afford a prisoner the
benefits of any less stringent legislation adopted after the
crime"), cert. denied, 472 U.S. 1010 (1985). See also United
____________
________ ______
States v. Tarvers, 833 F.2d 1068, 1077 (1st Cir. 1987)

______
_______
(upholding special parole term imposed under pre-1984 version
of
841(b), even though sentencing occurred in 1985).
-6-
The same reasoning applies to the two offenses here that

occurred
after
October
12,
distribution of cocaine
1984:
count
on October 29,
14
(involving
1984), and count
(involving possession of marijuana with intent to

on May 3, 1985).
offenses,
21 U.S.C.
841(b)(1)(B)-(C)
(Supp.
those in effect in 1987.
1984 statute required special
14 involved a kilogram or
and
within
the
1984), were
Moreover, the
parole in both instances.
course, had count

fallen
distribute
The penalty provisions applicable to these
less stringent than
thus
15
1984
version
Of
more of cocaine
of
subsection
(b)(1)(A) rather than (b)(1)(B), no special parole would have

been warranted with respect thereto.
specifically
determined that
subsection (b)(1)(B)
finding on appeal.
Affirmed.
_________
Yet the district
this offense
and petitioner has not
was
court
governed by
challenged this
-7-

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USCA1 Opinion

September 22, 1993

[NOT FOR PUBLICATION]

Michael J. Kingsley on brief pro se.

Michael Kingsley challenges the

because such sanctions were abolished between the time of his

and the time of his

sentencing, the district court

should have applied the law in effect on the latter date.

and therefore affirm

correct sentence under 28 U.S.C.

2255 and/or Fed. R. Crim.

to May 1985, petitioner was

of a twenty-three member organization engaged in distributing

1987, he pled guilty to

22 separate offenses as follows: one

of conspiracy to distribute cocaine,

conducting a continuing criminal enterprise, 21 U.S.C.

pursuant to a plea bargain, the district court imposed twelve

and each of the cocaine

offenses) and ten five-year

the marijuana and tax offenses)--

all to be served concurrently.

The court also imposed three

offenses (the conspiracy

substantive marijuana offenses.

seeking to vacate the special parole terms.

configuration imposed no type

From his reading

841(b) that occurred in

the district court was required to impose this allegedly more

Contrary to petitioner's view, the

841(b) actually contained

penalties, including enhanced

The district court properly

prison sentences and terms

395, 399-403 (1991); Padilla Palacios v. United States,

v. Ocasio Figueroa, 898 F.2d

1990), cert. denied, 113 S. Ct. 1001 (1993); United States v.

special parole for cocaine

offenses and a two-year term

Between that date

and October 27, 1986,

involving one kilogram or more of cocaine), but retained such

1984) with id.

e.g., United States v.

F.2d 824, 829

occurring on or after October 27, 1986 (not November 1, 1987,

See, e.g., Gozlon-Peretz, 498 U.S.

at 409; United States v. Morris, 977 F.2d 677, 686

Defendant is therefore mistaken in maintaining

prior to October 12,

least equal to,

It is thus clear that application of the

1987 penalties would

have been impermissible.

petitioner's contention that

ambiguous as to warrant invoking

well off the