The opinion of the court was delivered by: LORD, III
CORRECTION OF DEFECTIVE RULE 11 HEARING
On January 2, 1979, Dominic Jacquinto pleaded Nolo contendere to a charge of violating 21 U.S.C. § 846, which prohibits, Inter alia, conspiring to distribute controlled substances. On that same date, Raymond Trainor pleaded guilty to a charge of violating the same conspiracy statute, as well as to charges of violating 21 U.S.C. § 841, which prohibits the substantive offense of distribution. At the plea hearing, in informing the defendants of the maximum penalty to which they would be subject under § 846, I relied upon the representations of the Assistant United States Attorney that such penalty includes a mandatory special parole term.
I have since determined, Mea sponte
, that § 846 does Not empower me to impose a term of special parole. Accordingly, I am re-opening the Rule 11 hearing in order to inform the defendants that the lawful maximum punishment under § 846 includes only fine and/or imprisonment, but not special parole. Also, since it is apparent that both the United States Attorney's Office and the Probation Office
have misread § 846, I will set forth my reasons for concluding that that statute does Not authorize the imposition of a special parole term.
Sections 841 and 846 of 21 U.S.C. are both part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513. As punishment for violating the substantive offense defined in § 841, Congress has provided for penalties of a fine or imprisonment or both. In addition, if a defendant is sentenced to a term of imprisonment under § 841, the court is Required to impose a "special parole" term in addition to the term of imprisonment. Under § 846, conspiracy is
"punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the . . . conspiracy."
On its face, § 846 does Not provide for the imposition of a special parole term. Parole, by its very definition, is a penalty which is distinct from imprisonment; it is a term of supervision served Outside a penal institution. All that § 846 provides is that any fine or prison term imposed for conspiracy may not exceed the maximum fine or term of imprisonment permissible for the substantive violation. Fassette v. United States, 444 F. Supp. 1245 (C.D.Cal.1978). This reading of the statute is supported by the legislative history; the House Report which accompanied the 1970 Act states that § 846
"provides that any person who . . . conspires to commit any offense defined in this title may be punished by imprisonment and/or fine which may not exceed the maximum Amount set for the offense, the commission of which was the object of the . . . conspiracy."
House Report No. 1444, 91st Cong.2d Sess., 3 U.S.Code Cong. and Admin.News, p. 4566, 4617 (1970) (emphasis added).
Aside from the plain meaning of the terms "parole" and "imprisonment", further evidence that Congress did not intend to authorize the imposition of special parole under § 846 is provided by the enumeration of all three penalties (fine, imprisonment, and special parole) under §§ 841 and 845 (prohibiting distribution to persons under age 21) but of only the first two under § 846. Indeed, the "special parole" term is referred to under § 841 as that term imposable under §§ 841 and 845; § 846 is Not mentioned. 21 U.S.C. § 841(c). As Judge Hill stated in Fassette, supra,
"(if) Congress had intended and had desired to have the permissible punishment for the conspiracy offense of § 846 identical with that permitted for the substantive offense of § 841, it could easily and clearly have said so. Instead, Congress has used language in § 846 which separately defines the permissible punishment for violations of that section and uses different language in defining it."
444 F. Supp. at 1247.
"ignore(d) an important part of the language of Section 841(b)(1)(A). That section provides that where a special parole term is mandated by a sentence of imprisonment, it is to be imposed "In addition to such term of imprisonment.' Thus, as used in Section 841, special parole is not merely part of ...